IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931 RSA.No. 185 of 2010() --------------------- AS.67/2008 of D.C.& SESSIONS COURT,THODUPUZHA OS.217/2007 of MUNI-MAGI.COURT,THODUPUZHA .................... APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------------- 1. AMMINI NAIR. W/O.K.S.RAVINDRAN NAIR, AGED 58 YEARS,RESIDING AT KURUVICHALIL NALUKETTU, PATTIMATTOM VILLAGE KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. 2. LAKSHMIKUTTY AMMA, W/O.GOPALAN NAIR, AGED 86 YEARS, RESIDING AT ANDOOR HOUSE, PURAPUZHA VILLAGE,THODUPUZHA TALUK, IDUKKI DIST. BY ADV. K.S.RAVINDRAN NAIR(PARTY-IN-PERSON) RESPONDENTS/RESPONDENTS/PLAINTIFF 1 TO 5 & DEFENDANT NO.1. -------------------------- 1. JOSEPH,S/O.MATHEW AGED 41 YEARS, PALAKUNNEL HOUSE, PURAPUZHA VILLAGE, VENGALLOOR KARA, THODUPUZHA TALUK, IDUKKI DISTRICT. 2. RENJITH JOHN, AGED 38 YEARS, S/O.JOHN, THEKKEKALAPURAYIL HOUSE, PUTHUPARIYARAM KARA, MANAKKAD VILLAGE, THODUPUZHA VILLAGE. 3. JAYAN, S/O.CHANDRASEKHARAN NAIR, AGED 39 YEARS, JAYA NIVAS, KEEZPURAPUZHA KARA, PURAPUZHA VILLAGE, THODUPUZHA TALUK. 4. SMITH JAYAN, W/O.JAYAN, AGED 36 YEARS, JAYA NIVAS, KEEZPURAPUZHA KARA, PURAPUZHA VILLAGE.THODUPUZHA TALUK. 5. ADV.S.SUNIL KUMAR, S/O.SREEDHARAN NAIR, AGED 42 YEARS, ENCHAKOTTIL HOUSE, PURAPUZHA VILLAGE, THODUPUZHA TALUK. 6. RADHAKRISHNAN NAIR, AGED 59 YEARS, S/O.GOPALAN NAIR, ANDOOR HOUSE, PURAPUZHA VILLAGE, THODUPUZHA TALUK (SET EX-PARTE) ADV. SRI.T.J.MICHAEL FOR R1,2&5 SRI.JOSE MATHEW (KAVALAKALAM) FOR R1,2 & 5 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/03/2010, ALONG WITH RSA NO.169 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.Nos.169 and 185 of 2010 --------------------------------------- Dated this 15th day of March, 2010 JUDGMENT These appeals arise from common judgment and decree of learned District Judge, Thodupuzha in A.S.Nos.66 of 2008 and 67 of 2008, respectively confirming judgment and decree of learned Munsiff, Thodupuzha in O.S.No.217 of 2007. The appeals are at the instance of defendant Nos.2 and 3. Parties, for the sake of convenience are referred to as plaintiffs and defendants as in the trial court. 2. Dispute is concerning the alignment and use of a pathway referred to in Ext.A3, settlement deed No.3006 of 1999 executed by defendant Nos. 2 and 3 and other members of their family As per that settlement deed properties were settled in favour of different sharers. The F schedule therein, 44 cents was allotted to one Radhakrishnan from whom plaintiff Nos.1 and 2 purchased it as per Ext.A1, sale deed No.4035 of 2006. Of the said 44 cents, plaintiff Nos.1 and 2 sold 10 cents to plaintiff Nos.3 and 4 as per sale deed No.2474 of 2007. Plaintiff Nos.1 and 2 sold another 26 cents to one Radhakrishnan (he is not a party to the proceeding). The remaining 8 cents of plaintiff Nos.1 and 2 situated towards the north eastern portion of the 44 cents (F schedule in Ext.A3) is the property described in plaint A schedule. The R.S.A.Nos.169 and 185 of 2010 2 10 cents sold in favour of plaintiff Nos.3 and 4 is plaint B schedule. According to the plaintiffs as per Ext.A1, assignment deed they are also entitled to make use of the common pathway provided as per Ext.A3, settlement deed No.3006 of 1999. The said pathway is described in the plaint as C schedule. Plaintiffs say that defendants are causing obstruction to their user of plaint C schedule and hence the suit for prohibitory injunction. Defendant Nos.2 and 3 while resisting the suit made a counter claim. According to defendant Nos.1 and 3, pathway described in plaint C schedule is not the one referred to in Ext.A3, settlement deed. They would say that the pathway referred to in Ext.A3 originated from the Vazhithala-Purappuzha road on the extreme south, went “straight” towards north through plaint A and B schedules, ends in B schedule of Ext.A3 and all the allottees under Ext.A3 have right over the said way. That pathway, defendant Nos.2 and 3 extended up to the property of defendant No.2 (E schedule in Ext.A3 situated on the north of F schedule of that document (which is the 44 cents, portion of which are plaint A and B schedules). It is also the contention of defendant Nos.2 and 3 that for their convenience they constructed a new way which is described in the plaint as C schedule over which plaintiff have no right or interest. In the circumstance, they prayed for a decree for prohibitory injunction against plaintiffs using plaint C schedule way. Learned Munsiff was of the view that plaint C schedule is the pathway referred to in Ext.A3 R.S.A.Nos.169 and 185 of 2010 3 which extended only up to the B schedule in Ext.A3 set apart to the share of defendant No.3, Lakshmikutty Amma. Ext.A3 does not say that the said way extended further towards west to reach the E schedule allotted to defendant No.2. Learned Munsiff also found against the contention of defendant Nos.2 and 3 that plaint C schedule is the new pathway formed by them and accordingly dismissed the counter claim while a decree was granted in favour of the plaintiffs as prayed for. Decree in favour of plaintiffs was challenged in A.S.No.66 of 2008 while dismissal of the counter claim was challenged in A.S.No.67 of 2008. Learned District Judge has confirmed the finding of learned Munsiff and dismissed the appeals. Hence these second appeals urging by way of substantial questions of law whether courts below are legally and factually correct in concluding that plaint C schedule is the pathway referred to in Ext.A3, settlement deed and whether courts below went wrong in not finding that plaintiffs instituted the suit after destroying the existing pathway. 3. Appellants/defendant Nos.2 and 3 are represented by their power of attorney holder, Sri.K.S.Ravindran Nair, a retired Engineer vide order on I.A.No.444 of 2010, I have permitted Sri.K.S.Ravindran Nair to address arguments on behalf of appellants/defendant Nos.2 and 3. He contends that the photographs (Ext.B1 series) taken immediately after alleged destruction of the existing pathway would eloquently indicate that there was such a pathway in existence as R.S.A.Nos.169 and 185 of 2010 4 referred to in Ext.A3 which has nothing to do with the plaint C schedule. According to Sri. K.S.Ravindran Nair in the way courts below have granted decree in favour of the plaintiffs, defendant No.2 has no access to the property belonging to her (E schedule in Ext.A3). He has also a contention that defendant Nos. 2 and 3 are not being permitted to take water from the well in the tarvad property. Learned counsel for plaintiffs in response contends that there is no acceptable evidence as to the existence of a way other than plaint C schedule and that contention of appellants/defendant Nos.2 and 3 that the pathway referred to in Ext.A3 extended up to the E schedule in Ext.A3 allotted to defendant No.2 is belied by the description of counter claim pathway as well as Ext.A3. 4. Going by Exts.C1(a) and C2(a), plaint C schedule way starts from Vazhithala-Purappuzha road on the extreme south, it goes towards north, takes a slight deviation towards east and then goes further towards north. It ends at the north eastern corner of plaint A and B schedules (which is the north-eastern portion of B schedule in Ext.A3). In Ext.A3 a common way originating from Vazhithala- Purappuzha road on the south and going straight towards north is provided for the use of all sharers under Ext.A3. But it is relevant to note from Ext.A3 that the said pathway reached only upto the property where B schedule house (in Ext.A3) is situated. It is also not disputed before me that E schedule allotted to defendant No.2 as per Ext.A3 is R.S.A.Nos.169 and 185 of 2010 5 situated on the north western side of F schedule (the 44 cents acquired by plaintiff Nos.1 and 2 as per Ext.A1). In other words going by the description in Ext.A3, the way does not reach up to the E schedule in Ext.A3 allotted to defendant No.2. It is also relevant to note that in the boundary descriptions of the separate schedules in Ext.A3, except for E schedule allotted to defendant No.2 the common way referred to in Ext.A3 is described as a boundary. But the boundary description for E schedule allotted to defendant No.2 as per Ext.A3 is the property referred to in B schedule in Ext.A3 and comprised in survey No.214/1/1, 214/2 and 214/5/2. Therefore from Ext.A3 it is not possible to say that the common way referred to therein extended up to E schedule referred in Ext.A3 and allotted to defendant No.2 and hence plaint C schedule is not the way referred to in Ext.A3. 5. Yet another contention raised by the power of attorney holder on behalf of defendant Nos.2 and 3 is that the way referred to in Ext.A3 goes “straight” towards north while, what the Advocate Commissioner has reported in Ext.C1(a) and C2(a) is a pathway which starts from Purappuzha road on the extreme south, goes towards north, takes a (slight) deviation towards east and then again goes towards north. According to the power of attorney holder, pathway referred to in Ext.A3 went “straight” towards north cutting across the F schedule (part of which is the plaint A and B schedules). But, that contention cannot be accepted for the reason that the eastern R.S.A.Nos.169 and 185 of 2010 6 boundary of F schedule is given as the common pathway (referred to in Ext.A3). Learned counsel for plaintiffs points out that even as per the counter claim schedule described in the written statement, pathway claimed by defendant Nos.2 and 3 does not extend to E schedule on the north-west of plaint A and B schedules (F schedule in Ext.A3). I am also unable to accept the contention that because the common way is stated in Ext.A3 as “straight”, it should go like a straight line without any deviation at all. 6. Yet another contention is that Ext.B1 series, photographs which according to the power of attorney holder were taken immediately after the filing of the suit and after the plaintiffs (allegedly) interfered with the existing pathway would show that the pathway referred to in Ext.A3 was destroyed by the plaintiffs. Plaintiffs have an explanation that there was no such interference on any such pathway and instead, at a time when plaint C schedule was not usable as it was slippery in rainy season some alternative access was used. Whatever be the correctness of that explanation, in the light of what I have stated from the description in Ext.A3, I am unable to accept the contention that plaint C schedule is not the way referred to in Ext.A3 and that instead, it is the exclusive way of defendant Nos.2 and 3. This court while considering the second appeal is concerned only with substantial question of law involved. True, a finding of fact if perverse or is not supported by any evidence involved a substantial question of R.S.A.Nos.169 and 185 of 2010 7 law. Courts below have found against case of defendant Nos. 2 and 3 with reference to the relevant recitals in Ext.A3 and the evidence. Courts below have only protected the right of plaintiffs to sue plaint C schedule way. The decree does not affect the right of appellants/defendant Nos.2 and 3 to use the said way. Decision of the courts below is based on the evidence on record. In the circumstance, I am inclined to think that there is no substantial question of law involved in the appeals requiring admission. 7. So far as grievance of appellants/defendant Nos. 2 and 3 as to their right to draw water from the well in the tarvad property which the power of attorney holder says have been in use for the last 150 years is concerned, that is not the subject matter of the suit. If appellants/defendant Nos.2 and 3 have any such right and that is infringed they can seek appropriate reliefs in appropriate proceeding. With the above observations the second appeals are dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/