IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 29TH JUNE 2010 / 8TH ASHADHA 1932 RSA.No. 601 of 2003(E) -------------------------------- AS.NO.157/1995 OF I ADDL. DISTRICT COURT, KOLLAM, OS.NO.1349/1989 OF PRL.MUNSIFF'S COURT, KOLLAM. .................... APPELLANTS/RESPONDENTS/DEFENDANTS: ----------------------------------------------------------------- 1. N.JANAKI AMMA, ARATHI, VALIYAZHIKATHU VEEDU, ULIYAKOVIL CHERRY, KADAPPAKKADA P.O., KOLLAM-691 008, NOW RESIDING AT BROTHERS FAMILY QUARTERS, TANUR MALABAR P.O., MALAPPURAM DISTRICT. 2. B.VINOD (UNNI), ARATHI, VALIYAZHIKATHU VEEDU, ULIYAKOVIL CHERRY, KADAPPAKKADA P.O., KOLLAM-691 008, NOW RESIDING AT BROTHERS FAMILY QUARTERS, TANUR MALABAR P.O., MALAPPURAM DISTRICT. BY ADVS. SRI.B.SURESH KUMAR, SMT.T.V.NEEMA. RESPONDENT/APPELLANT/PLAINTIFF: -------------------------------------------------------- B.SARASWATHY, SHA NIVAS, ULIYAKOVIL CHERRY, KADAPPAKKADA P.O., KOLLAM-691 008. BY ADVS. SRI.VINOD KUMAR.C, SRI.P.GOPAL. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2010, THE COURT ON 29/06/2010 DELIVERED THE FOLLOWING: prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 601 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of June, 2010. JUDGMENT This case is a typical example of a litigation sparked off at the instance of the defendant himself. Finding himself slapped with a decree, he has now come up in appeal before this court. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for declaration of title, putting up of boundary and for consequential injunction. Plaintiff's husband obtained plaint schedule property by virtue of Ext.A1 dated 13.10.1972 and Ext.A2 dated 23.11.1973. Subsequently the rights of her husband was transferred in favour of the plaintiff as per Ext.A3 dated 5.2.1988. On the eastern side of the property owned by the plaintiff, there is a pathway with a width of 60 cms. After the purchase of the property as per Exts.A1 and A2, R.S.A.601/2003. 2 a compound wall was constructed leaving out the pathway on the southern side. The defendant owned property on the south-western side of plaint A schedule property and there is a pathway through the southern side of the plaint schedule property. That is shown as plaint B schedule pathway belonging absolutely to the plaintiff and plaint C schedule to the defendant. The defendant is alleged to have put up a gate on the eastern side of plaint B and C schedule properties, thereby causing hindrance to the use of the pathway by the plaintiff. Even though the plaintiff pleaded to the defendant not to cause such hindrance, he did not heed. The attempt of the defendant, according to the plaintiff is to reduce plaint B and C schedule pathways into his possession and annex it to his property. Based on these allegations the suit was laid seeking reliefs already made mention of. 3. The defendant resisted the suit. The defendant claimed to have purchased the property as per Ext.B1 dated 29.9.1969. Ever since then, he has been residing in the R.S.A.601/2003. 3 property. The initial pathway was found to be insufficient for the requirements of the defendant and therefore he approached the owner of the plaint schedule property, one Pappu Damodharan, and half a cent of property was purchased from him to widen the pathway. According to the defendant, the portion thus bought by him was lying well separated from the plaint A schedule property. He denied the allegation that he had put up a gate on the eastern side of plaint B and C schedule pathway. According to him, there was already a gate in existence and when it gave way, he put up a new gate. Therefore, he pointed out that the plaintiff is not entitled to any relief. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 to 3 and the documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendant had D.Ws. 1 and 2 examined and Exts. B1 and B2 marked. Exts. C1 to C3 are the commission reports. On an evaluation of the evidence, the trial court came to the conclusion that the R.S.A.601/2003. 4 plaintiff is the absolute owner in possession of plaint B schedule property and therefore granted a declaration as prayed for. The suit was decreed as follows: “In the result, the suit is decreed in part declaring the title of the plaintiff over B schedule property. In all other respects the suit is dismissed.” The other reliefs sought for were declined on the ground that B and C schedule properties shown by the Commissioner in his plan are being used as a pathway for a long time. 5. Aggrieved by that portion of the decree, which declined other reliefs to him, the plaintiff went up in appeal as A.S. 157 of 1995 before the District Court. The District Court concurred with the trial court with regard to the findings and modified the decree, which reads as follows: “The title of the plaintiff over the plaint B schedule property is declared. The defendant is directed by a decree of mandatory injunction to remove that portion of the gate installed abutting on the eastern extremity of the plaint B schedule property, within one month, failing which the R.S.A.601/2003. 5 plaintiff shall be entitled to do so at the expense of the defendant. The defendant and all persons claiming under him are restrained by a decree of permanent injunction from doing any act which would prevent the user of plaint B schedule property as pathway, such as putting up gate or other structures encroaching into the plaint B schedule property. The plaintiff is also allowed to put up demarcating survey stones separating the B and C schedule properties along CD line in continuation of ED line shown in Ext.C3(a) plan. In the circumstances of the case, the parties are directed to suffer their costs.” It is the said decree that is assailed in this appeal. 6. Learned counsel appearing for the appellants pointed out that they have no objection to major portions of the decree and objection is taken to only that portion of the decree, which reads as follows: “The plaintiff is also allowed to put up demarcating survey stones separating the B and C schedule properties along CD line in continuation of ED line shown in Ext.C3(a) plan.” R.S.A.601/2003. 6 Learned counsel pointed out that the above portion of the decree would result in reducing considerably the width of the pathway now being used by the appellants and it will be virtually impossible for them to take even two wheelers to the south western side where plaint A schedule property is situated. Learned counsel went on to point out that for a long time B and C schedule properties have been lying contiguously and were being used as a pathway by both sides. The plaintiff used the said pathway as an access to the rear portion of his property and as far as the defendant is concerned, this is the only pathway for access to his property from the outside world. Learned counsel for the appellants pointed out that the appellants do not dispute that the plaintiff holds valid title to plaint B schedule. It is pointed out that the lower appellate court was not justified in granting a decree to the plaintiff to put up survey stones along the pathway. 7. Learned counsel appearing for the respondent on the other hand pointed out that once it is found that R.S.A.601/2003. 7 plaint B schedule property absolutely belonged to the plaintiff, there is no reason as to why the relief given should be declined. Learned counsel drew the attention of this court to the fact that it was the defendant himself who had created the trouble by putting up a gate on the eastern end of the pathway, where the pathway opens into the main road. Till he put up the gate, the parties were on cordial terms and both the plaintiff and the defendants were using the same. It is true that the plaintiff has direct access to the main road from the eastern boundary of his property. But to go to the rear portion of his property, he made use of plaint B and C schedule properties. It was the defendant, who with ulterior motive put up a gate on the eastern end of the pathway with the intention of reducing the pathway into his possession. Having done so, it comes with little grace from the defendants now to say that there may not be demarcation of plaint B and C schedule properties by putting up survey stones. According to learned counsel, no grounds are made out to interfere with the judgment and decree of R.S.A.601/2003. 8 the appellate court. 8. The matter does not appear to be as simple as both the learned counsel for the parties say. It is true that the whole trouble was created by the defendant himself by putting up a gate on the eastern end of plaint B and C schedule properties, thereby challenging the right of the plaintiff to use the same and his title to B schedule. Ext.C3 commission report shows that there is no separating boundary between plaint B and C schedule properties. It is almost an admitted case that as far as plaint B schedule pathway is concerned, it belongs absolutely to the plaintiff and C schedule pathway to the defendant. It is also almost conceded that from 1969 onwards, the pathway has been in existence and has been used by both the parties. For reasons best known to the defendant, on a fine morning he chose to put up a gate on the eastern side of the pathway, thereby causing apprehension in the mind of the plaintiff that plaint B schedule property will be reduced into his possession by the defendant. R.S.A.601/2003. 9 9. If the plaintiff thought so, he could not be found fault with. Putting up a gate on the eastern end by the defendants was quite uncalled for. He ought to have remembered that a portion of the pathway shown as plaint B schedule infact belongs to the plaintiff. They had no authority to put up a gate even enclosing that pathway. It was under these circumstances that the plaintiff was constrained to move the suit. 10. Whatever that be, the fact remains that plaint B and C schedule properties lie contiguously and are being used as a pathway for a long time. As pointed out by the learned counsel for the appellant, if survey stones are put up, that will reduce half the pathway and it will be impossible for the defendant to take even two wheelers through the balance portion of the pathway. It is true that the defendant strictly does not deserve any sympathy at all because the suit was a result of his own creation. 11. Whatever that be, it is felt that that a portion of the decree which enables the plaintiff to put up survey R.S.A.601/2003. 10 stones separating plaint B and C schedule properties is too harsh. That would mean that more than half of the width of the pathway will be lost for the defendant and the balance portion may not be of much use, except for the fact that he can reach his property by foot. 12. The trial court had declined the relief to the plaintiff on the ground that there is clear evidence to show that plaint B and C schedule pathways are lying contiguously and were being used as a pathway for a long time. 13. The appellate court was too technical in its approach. True, once the title of the plaintiff to B schedule is found, it is for the defendant to establish a better claim, which enables him to use the same. Viewed from that angle, the position of the defendant may be difficult. But the fact remains that for a long time the pathway has been used by both the plaintiff and defendant and there is reason why it should not continued to be used by them. 14. Learned counsel for the respondent points out that unless some demarcating line is put to separate B R.S.A.601/2003. 11 schedule property from C schedule property, the defendant will again create trouble. It is because of that reason, it becomes necessary to put up survey stones separating plaint B and C schedule properties. 15. The apprehension is reasonable. But as already noticed, putting up survey stones is too harsh a relief against the defendant. While it is necessary to have some demarcating sign separating plaint B schedule property from the rest of the property owned and used by the defendant, the view of the lower appellate court that it shall be separated by laying survey stones cannot be accepted for the reasons already made mention of. 16. Considering the facts of the case, it is felt that that portion of the decree cannot be sustained. But the fact remains that the plaintiff has been driven to unnecessary litigation solely because of the conduct of the defendant. Whatever that be, by permitting both the parties to use plaint B and C schedule pathways, it is felt that the litigation can be given a quietus. R.S.A.601/2003. 12 17. In the result, this appeal is partly allowed and that portion of the decree which enables the plaintiff to put up demarcating survey stones separating B and C schedule properties along CD line in continuation of ED line shown in Ext.C3(a) plan is set aside and instead the plaintiff is allowed to put up some demarcation mark or sign as observed by the lower appellate court, however, without causing any hindrance to the use of the pathway by the appellants also. The rest of the decree of the lower appellate court stand confirmed. The appellants are directed to pay costs to the respondent-plaintiff through out. The costs that the appellants are liable to pay to the respondent herein is determined as Rs.7,800/- before trial court, Rs.10,000/- before the first appellate court and Rs.15,000/- before this court. The cost so awarded shall be deposited by the appellants within two months from today. On such deposit, the respondent will be entitled to withdraw the same. If the appellants fail to deposit the costs, the decree passed by this court shall stand annulled and the R.S.A.601/2003. 13 decree of the lower appellate court shall remain. No extension of time for deposit of the cost ordered by this court will be given. P. BHAVADASAN, JUDGE sb.