IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 RSA.No. 162 of 2010() --------------------- AS.98/2007 of ADDL. SUB COURT-II, KOZHIKODE OS.176/2004 of II ADDL.MUNSIFF COURT,KOZHIKODE .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- KUZHIMBADAM MARIYUMMA, D/O.MUHAMMED, VELIPRAM AMSOM DESOM, KOZHIKODE. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENT(S): RESPONDENT/DEFENDANT ----------------------------------- PUTHUVALIL ALI, S/O.IMBICHALI, P.O.RAMANATTUKARA, VELIPRAM AMSOM DESOM, KOZHIKODE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.162 of 2010 -------------------------------------- Dated this the 22nd day of February, 2010. JUDGMENT This Second Appeal arises from judgment and decree of learned Additional Sub Judge-II, Kozhikode in A.S.No.98 of 2007 confirming the dismissal of the suit for injunction (O.S.No.176 of 2004 of the court of learned Additional Munsiff-II, Kozhikode). Appellant/plaintiff claimed that item Nos.1 and 2 of the plaint schedule belonged to her as per document Nos.549 of 1975 and 2537 of 1975 while item No.3 which lay contiguous with item Nos.1 and 2 came to her possession as per an agreement executed by one Hassan. Respondent/defendant has property on the west of item Nos.1 and 2. He attempted to trespass into the said property and hence the suit. Respondent contended that through the middle of the suit properties he was enjoying a right of way for access to his property on the west and while so in the year 1975 by mutual agreement that pathway was shifted to the northern portion of the suit property and set out at a width of five feet. Demarcating that way from the rest of the suit property, a laterite stone wall was constructed (on the southern side of the said pathway). Appellant, before institution of the suit destroyed that boundary wall and gates on the east and west of the way. According to the respondent, the said way is the only means of access to his property on the west. Learned Munsiff observed in paragraph No.11 of the judgment that though appellant had proved her possession over the suit property, she has not RSA No.162/2010 2 established any cause of action in the way she alleged in that, it is not a case of respondent attempting to trespass into the suit property since according to the learned Munsiff, even the evidence of appellant indicated that respondent is attempting walk along the property of appellant (along its northern side) east- west which was known to the appellant prior to the institution of the suit. Holding that appellant had no cause of action to institute the suit, she was non-suited. First appellate court referred to the materials on record to show that there are indications of the existence of disputed pathway and that appellant has not come to the court with clean hands while seeking equity. Accordingly appeal was dismissed. Learned counsel for appellant contends that possession of the appellant over suit property having been found by the trial court and respondent having failed to establish any right of easement by way of necessity or prescription appellant ought to have been granted relief of injunction. Learned counsel submitted that though respondent had filed O.S.No.252 of 2004 seeking enforcement of his right of easement over the disputed way that suit ended in dismissal. But learned counsel fairly conceded that respondent has carried the matter in appeal and that appeal is pending. 2. Substantial questions of law urged for a decision in this appeal are whether courts below are justified in refusing the injunction sought even after RSA No.162/2010 3 finding that there was evidence of attempting to trespass into the suit property and whether first appellate court was justified in dismissing the appeal after holding that the claim of respondent regarding easement by way of grant and necessity is not correct. Raising the above grounds learned counsel contended that dismissal of the suit is not correct. 3. True in paragraph No.11 of the judgment learned Munsiff observed that appellant is in possession of the suit property and that cause of action in the way pleaded by her is not established. First appellate court but referred to the evidence and came to the conclusion that appellant has not came to the court with clean hands while seeking equity. On going through the judgment of trial court what could be discerned from the observation in paragraph No.11 is that existence of disputed pathway along the northern portion of the suit property was suppressed by the appellant in the plaint while she alleged that respondent is attempting to “trespass” into the suit property. 4. Advocate commissioner inspected the property two days after institution of the suit and submitted Exts.C1 and C2, report and sketch to which neither side raised any objection. As per Exts.C1 and C2 there was indications of pathway towards northern portion of the suit property extending east-west and there were remnants of the stone wall on the southern side of the said way. Commissioner found that gates on either side of the disputed way, one on the RSA No.162/2010 4 western side for access to the property of respondent. True in Ext.B1, title deed of respondent there is reference to a way on the western side of his property as contended by the appellant but there is nothing on record to show that at the time of institution of suit there was any such pathway. At any rate existence of an alternative way will not affect the claim of respondent. It also came out in evidence that even to the knowledge of appellant, respondent was walking along the northern portion of the suit property even before the institution of the suit. It is in these circumstances that courts below found that appellant has not come to the court with clean hands while seeking equity. That, claim of easement raised by the respondent in O.S.No.252 of 2004 was found against by the trial court is a different matter. Apart from the fact that said matter is pending in appeal, substantial question of law in this appeal is not whether respondent has established his right of easement but whether appellant is entitled to the injunction prayed for in the proved circumstances. On the facts and materials on record courts below are justified in holding that appellant is not entitled to the injunction prayed for. Concurrent finding of fact is based on evidence and involved no substantial question of law. 5. Learned counsel submitted that dismissal of this appeal may not in any way affect the decision in the appeal pending from the judgment and decree in O.S.No.252 of 2004. As stated by learned counsel the suits were tried and RSA No.162/2010 5 disposed of separately. There is no reason why the decision in this case should affect decision in O.S.No.252 of 2004 as claim of easement is not an issue involved in this case. That case will have to take its course as provided under law. Resultantly this Second Appeal is dismissed in limine. I.A.Nos.379 & 380 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks