IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 RSA.No. 251 of 2004() --------------------- AS.196/1995 of I ADDL. DISTRICT COURT, KOLLAM OS.367/1990 of PRL.M.C., KOLLAM .................... : APPELLANT-APPELLANT/DEFENDANT -------------------------------------------- N.G.RAJKUMAR SHENOI, SUDHA NIVAS, ANANDAVALLEESWARAM, KAIKULANGARA WARD, KOLLAM. BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.HARISH R. MENON RESPONDENTS: RESPONDENTS-PLAINTIFFS ------------------------------------------------- 1. KOLLAM TALUK N.S.S. KARAYOGAM UNION NO.947, VIDYANDIRAKA MEMORIAL BUILDINGS, ANANDAVALLEESWARAM, KAIKULANGARA WARD, KOLLAM 2. DR. S.R.RAJAGOPAL, CHAIRMAN, N.S.S. KARAYOGAM, KOLLAM TALUK, N.S.S.KARAYOGAM UNION NO.947, IN DO.DO. 3. B.R.UNNITHAN, SECRETARY,DO.DO.DO. (REDTS 2 & 3 BEFORE L.A.COURT E.RAMACHANDRANPILLAI &J.SASIDHARAN NAIR WERE IMPLEADED IN THEIR5 CAP.AS PREDT.& SECRY. OF THE KOLLAM TALUK N.S.S.K.UNION NO.947 .THEY HAVE SINCE VACATED THEIR OFFICE RESDTS 2&3 HEREIN ARE THE PRE.CHAIRMAN & SECREY. DO.DO.DO BY ADV. SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.P.GOPAL THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 251 OF 2004 =========================== Dated this the 4th day of March 2007 JUDGMENT Defendant in O.S.367/1990 on the file of Munsiff Court, Kollam is the appellant. Plaintiffs are the respondents. Respondents instituted the suit for a permanent prohibitory injunction restraining appellant from putting up a gate on the northern side of the pathway or altering the existing lie of the pathway. According to respondents, the properties, inclusive of the plaint schedule property, originally belonged to Subramaniya Iyer and as per Ext.A1 sale deed dated 12.5.1967 plaint schedule property was purchased by first respondent in 1967 and thereafter it has been in the possession and enjoyment of union and the remaining 56 ½ cents which belonged to Subramaniya Iyer was sold on the same day in favour of Gopala Pillai as per Ext.B11 sale deed executed on the same day. Gopala Pillai was the Vice -President of R.S.A.251/2004 2 the first respondent union. He requested to provide a pathway from the western side of the plaint schedule property for access to the northern road. Considering his position as Vice President of the Union he was given a personal right of enjoyment of pathway having a width of 10 links through the western side of the plaint schedule property and he has been using that portion of the property as a way. It was contended that after the purchase of the property respondents constructed an auditoriyam by name Sree Vidhyadhi Raja Memorial N.S.S. Auditoriyam and the old building on the southern side was converted into a dining hall and kitchen and for carrying articles to kitchen and the dining hall the western pathway was being used by the respondents . Waste materials were also removed through the pathway. In 1983 another Auditoriyam was constructed by name Ganga Kalyana Mandapam and it was found that the unenclosed pathway on the western side causes inconvenience. So an external wall was constructed and 3 gates were provided on that wall. It was contended that the western gate was used by the respondents and R.S.A.251/2004 3 other licensees who took the Auditoriyam on rent for bringing materials and removing waste and a gate was also put up on the north western side where the way opens to the road. It was alleged that after appellant purchased a portion of the property from Gopala Pillai, he made an attempt to put up a new gate on the northern side and he has no right to construct a gate and appellant is to be restrained by a permanent prohibitory injunction. Appellant in the written statement admitted that respondents purchased 50 cents in Sy. No.6853/1 and 3. It was contended that on the western side of this plot, a pathway having a width of 10 links was reserved in favour of Gopala Pillai who purchased the southern plot and the sale to respondents was subject to that right and 56 ½ cents on the southern side including the way was purchased by Gopala Pillai and later by a mutual consent respondents provided a pathway having a width of 10 feet on the western side in favour of Gopala Pillai, and in return respondents were given 5 cents of the property on the southern side and the 50 cents thus obtained by respondents was enclosed R.S.A.251/2004 4 by a compound wall on the western and southern side. It was also contended that case of respondents that they were using the western pathway for carrying materials and removing waste from the building are false and respondents have no right over the pathway and they never used it. When Ganga Kalyana Mandapam was about to be constructed, office bearers of respondents union approached Gopala Pillai and obtained consent for using the western pathway for carrying material for construction of the Auditoriyam and permission was granted. But later after completion of the construction, the old wall was also demolished and a new compound wall with 3 gates therein were put up in its place. The old gate on the northern side of the property was put up by Gopala Pillai and even when appellant purchased the property, there was a gate on the northern side and lock and key was also given to the appellant and the name of the appellant was also inscribed in the gate and the compound wall in which the gate was fitted collapsed in March 1990 and appellant entrusted the gate for repairs and respondents are not using R.S.A.251/2004 5 the pathway on the western side and they have no right over the same. Appellant raised a counter claim contending that he has right over 26 cents of property including the pathway obtained as per Ext.B2 sale deed in 1974. He sought a decree for injunction restraining respondents from trespassing into any portion of his property. Respondents filed a replication disputing the claim and asserting the case set up in the plaint. 2. Learned Munsiff on the evidence of Pws.1 to 3, Dws.1 to 3 and Ext.A1 and A2, B1 to B11 found that Ext.A1 sale deed, by which respondents obtained title to the plaint schedule property, provide a way having 10 links width on the west of that property to Gopala Pillai who purchased the southern property under Ext.B11 sale deed on the same day. It was found that the right of way provided under Ext.A1 to the assignee under Ext.B11, is available to the appellant also and appellant is entitled to use that way. The case of appellant that there was a further arrangement between Gopala Pillai and respondents whereunder five cents of land being the southern portion of R.S.A.251/2004 6 the property was given to respondents, in exchange of surrender of a portion of the property on the west making the width of the pathway 10 feet, was disbelieved by the trial court. Learned Munsiff found that as per order in I.A.1135/1990 a gate was permitted to be put up and one of the key was given to the appellant and the other to the respondents and appellant is entitled to use that way, which lies to the west of N.S.S. Auditoriyam and Ganga Kalyana Mandapam and appellant is not entitled to claim exclusive right over the pathway. A decree for permanent prohibitory injunction restraining appellant from putting up any gate on the north western side of the plaint schedule property exclusively closing the existing pathway for his purpose or from altering the nature of the existing pathway was granted. It was also made clear that the gate put up as per order in I.A.1135/1990 will be used by both parties as provided in the order, permanently. Appellant challenged the judgment before District Court, Kollam in A.S.196/1995. Learned District Judge on reappreciation of evidence confirmed the findings of learned Munsiff R.S.A.251/2004 7 and dismissed the appeal. It is challenged in the second appeal. 3. Learned senior counsel appearing for appellant and learned senior counsel for respondents who appeared on issuing notice before admission, were heard. 4. The argument of the learned senior counsel is that Ext.A1 provides a way having a width of 10 links which starts from the northern public road and reaches the southern property which was purchased by Gopala Pillai under Ext.B11 and it is admitted case that as against the width of 10 links the existing way now is having a width of 10 feet and the extended width was the result of exchange of the properties by Gopala Pillai and respondents. It was argued that five cents of the property, which belonged to Gopala Pillai under Ext.B11 was surrendered to the Taluk Union of respondent and in exchange respondents surrendered a portion of their property on the western side of the property, to widen the way provided in Ext.A1 and courts below should have accepted the case of the respondents. It was also argued that respondents are now in R.S.A.251/2004 8 possession of not only 50 cents of the property covered under Ext.A1 but also more extent namely 51.50 cents and that is because of the exchange set up by appellant and courts below should not have granted the decree in favour of respondents. Learned senior counsel also argued that in view of the findings of the courts below, appellant instituted O.S.195/1997 before Additional Sub Court, Kollam in respect of 5 cents of the property and it is pending. Learned senior counsel appearing for respondents argued that Ext.A1 shows that the right of way provided is only a personal right exclusively provided to Gopala Pillai considering his relationship with the first respondent union and it is not available to the appellant. It was also submitted that respondents did not receive any summons in O.S.195/1997 and learned senior counsel is not aware of that suit. Whatever it be, as far as this suit is concerned, the only question is whether respondents are entitled to a decree granted by the trial court. 5. Ext.A1 provides a way having a width of 10 links which starts from the northern road and R.S.A.251/2004 9 reachs the property purchased by Gopala Pillai under Ext.B11. Courts below found that, that right runs with the land and hence available to the appellant. Respondents did not challenge that finding. Therefore it is not open to respondents now to challenge the same. Courts below found that a pathway exists now, which starts from the northern road and reaches the property of the appellant purchased under Ext.B2. Though appellant claimed that there was an exchange of the property and therefore the existing pathway exclusively belong to the appellant, no acceptable evidence was adduced to prove the exchange. Courts below rightly did not accept the exchange set up by the appellant. But courts below found that appellant is entitled to use the existing way, but not exclusively. Courts below also found that as per the order in I.A.1135/1990 a gate was allowed to be put up on the northern side of the existing pathway and both parties were allowed to use that way retaining one key with the appellant and other key provided to respondents and that arrangement was made permanently. In such circumstance, on the R.S.A.251/2004 10 factual findings, I do not find any substantial question of law is involved in the appeal. The appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006