IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 SA.No. 594 of 1999(D) --------------------- AS.63/1993 of PRL.SUB COURT,IRINJALAKUDA OS.148/1990 of MUNSIFF COURT, KODUNGALLUR .................... APPELLANT(S): -------------- MOHANAN, S/O. PONNANJERI RAMAN, ANJAPPALAM DESOM, METHALA VILLAGE, KONDUNGALLUR TALUK. BY ADV. SRI.K.G.BALASUBRAMANIAN RESPONDENT(S): --------------- 1. THANKAPPAN, (DIED) S/O. VENKIDANGI KANDOLI, METHALA VILLAGE, KODUNGALLUR TALUK, 2. BABY, D/O. 1ST RESPONDENT, METHALA VILLAGE, KODUNGALLUR TALUK, R1 & R2 BY ADVS. SRI.K.I.ABDUL RASHEED SRI.K.A.SHAMSUDEEN SRI.V.K.MEETHIANKUNJU SRI.N.M.SIYAD THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AMG P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - S.A.No.594 of 1999-D - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22th day of August, 2011 J U D G M E N T Disappointed plaintiff has come up in appeal. He was non-suited by both the courts below. 2. The plaintiffs claimed to have obtained the plaint schedule property as per Ext.A1 dated 05.04.1985. The defendant resides on the western side of the plaint schedule property. The plaintiff alleged that his property is well bound on all four sides by well laid fencing and lies separately from the rest of the properties nearby. According to the plaintiff, defendants wanted to cut open a pathway through his property and they threatened the plaintiff on 6.04.1990. They have no right to use any portion of his property for any purpose since there was threat to his right, suit was laid. 3. The defendant resisted the suit. It was contended there is a pathway used by the neighbours for a period of more than 50 years including the defendants. The western :2: S.A.No.594 of 1999-D boundary of the plaint schedule property is maintained by the defendants and they have put up a fencing leaving open a gap for entering the pathway on the eastern side. It is contended that the defendants and their predecessors in interest have been using the said pathway for more than 50 years and they have acquired a right over the pathway . Even if the plaintiff had got any right over the 5 feet wide east-west pathway passing through the southern boundary of the plaint schedule property it has been lost by adverse possession and limitation. The suit was laid with ulterior motive plaintiff blocked the passage which was being used by the defendant for a long time. Pointing out that the plaintiffs are not entitled to any relief, they prayed for the dismissal of the suit. 4. On the above pleadings issues were raised in the trial court. The evidence consists of the testimony of PWs 1 to 4 and documents marked Exts.A1 to A3 from the side of the plaintiff. The defendant had DW1 examined. Exts.C1 :3: S.A.No.594 of 1999-D and C2 are Commissioner’s reports. 5. On an appreciation of the evidence in the case both the courts below came to the conclusion that the defendants have been using the way running through the property of the plaintiff but they were not able to establish any particular manner of right to use the same. However holding that the plaintiff immediately prior to the suit had put up the fencing and had filed plaint concealing the true state of affairs relief was declined to him by both the courts. That brings the plaintiffs before this Court. 6. Notice is seen issued on the following questions of law:- (A) Were not the courts below legally in error in dismissing the suit and the appeal based on an inchoate right in view of the decisions of this Hon'ble Court despite the concurrent finding that the plaintiff/appellant was entitled to hold the plaint scheduled property ? (B) Were not the courts below in error in non-suiting the appellant on the ground of suppression of material facts as the plaintiff/appellant was entitled to protect his possession by using legitimate and reasonable measures of self-protection and neither such an act nor non-mention thereof can be said to be material, in the facts and circumstances of the case ? :4: S.A.No.594 of 1999-D (C) Whether or not the principle “One who seeks equity must come with clean hands” can be said to be applicable to the present case ? (D) Having found that the appellant was the owner of the plaint schedule property and entitled to possess the same, were not the courts below in error in applying the principle of inchoate right, the same being available only against a person who is not the owner of the servient tenement ? 7. The learned counsel appearing for the appellant pointed out that after having been found that the defendants have not been able to establish any manner of right to walk through the plaint schedule property, reliefs ought to have been granted to the plaintiff. The observation of the lower appellate court that the fencing was put up by the plaintiff immediately before the suit is belied by the averment in the written statement stating that the fencing was put up after the suit. According to the learned counsel the mere fact that he might have concealed the existence of the way and that it was used by the defendants does not better the case of the defendants unless and until they establish a right to use an ascertainable way through the property of the plaintiff. Both the courts below have :5: S.A.No.594 of 1999-D concurrently found that the defendants had failed to establish a right either by way of prescription or by easement of necessity to use any portion of the plaint schedule property as a pathway. Under those circumstances there was no justification in declining to grant any relief to the plaintiff. 8. Per contra, the learned counsel appearing for respondents pointed out that evidence is clear to the effect that the defendants and their predecessor in interest have been using a pathway running through the plaint schedule property which leads to the Panchayat road on the eastern side for a long time and it has been recently blocked by the plaintiff. The learned counsel went on to point out that as long as the user is found even assuming that no right as such is established and only a inchoate right is found that is entitled to protection as per the decision reported in Krishna Pillai V.Kunju Pillai [1990 (1) KLT 136]. It is also contended on behalf of the respondent that the first :6: S.A.No.594 of 1999-D respondent has died during the pendency of the appeal and his legal heirs have not been brought on the party array. According to the learned counsel the appeal abates as a whole. 9. I am afraid both the contentions are without merits. Injunction is sought for as a personal remedy. Even assuming that the legal heirs of the deceased first respondent has not been brought as the party array what at worst could be said is that the appeal abates as far as he is concerned. It is not possible to hold that the appeal abates as a whole because the suit could be continued as against other defendants. There is no abatement of the suit as a whole. That contention has therefore has necessary to fail. 10. Coming to the second contention it is seen from the records that the predecessor in interest of the defendants got the property as 'Kudikidappu' from one Gangadhara Menon who himself got the property in 1979 by means of Ext.A3 partition deed. Evidence on record :7: S.A.No.594 of 1999-D discloses that the predecessor in interest of the defendant obtained 'Kudikidappu' right in 1979. It is significant to notice that when Gangadhara Menon was allotted plots as per Ext.A3 partition deed, a way was provided for the ingress and egress to the outside world. If as a matter of fact the defendants claimed 'Kudikidappu' under Gangadhara Menon it was for them to look up to Gangadhara Menon to provide way for them. They cannot say that the plaintiff is bound to provide a way. It is here that the pleadings in the case assume importance. 11. Both the courts below have observed that neither in the pleadings nor from the evidence, one can come to the conclusion that the defendants have a right to use the alleged pathway running through the plaint schedule property either by way of easement of necessity or by prescription. Being a concurrent finding on facts it is not open to challenge in the second appeal. 12. In Mary Soniz Zachariah V. Union of India :8: S.A.No.594 of 1999-D [1990(1) KLT 130] the issue considered was if without a declaratory prayer in the form of a counter claim, defendant can resist a suit for injunction. In that suit the plaintiff was found guilty of suppressing facts and therefore the discretionary relief was rejected. 13. However in the decision reported in Ramanunni Vaidyar V. Govindankutty Nair [1998(2) KLT 47] it is held as follows:- The case, as I see it, turned more on the plaintiffs not having approached the court with clean hands. The grant of the relief of injunction being discretionary the defendants had put forward a case that the plaintiffs have no absolute possession over the property in the sense that the had a right of way through the property of the plaintiffs and they were using a portion of the plaint schedule property for their ingress into and egress from their property. With respect, I do not think that the decision in Krishna Pillai's case has laid down any law different from what has been stated by the High Court of Madras in Venkatanarasimharaju's case. In my view, the said decision is no authority for holding that a person who has not acquired a right or perfected a right can maintain an action against the owner of the land over which the right is claimed. In my view, on the basis of an inchoate right or a right which has not ripened into an easement by prescription, but is merely one of user, no relief can be granted to the user of them as against the owner of that land. In other words, a :9: S.A.No.594 of 1999-D right, properietory or otherwise has to be shown for obtaining relief. 14. One fails to understand the decisions by the courts below. The plaintiff is certainly entitled to protect his property. If the defendants have a better title, claim or right it is for them to establish their right. In the case on hand the claim is about the right of a way. They are not very sure about their right. A reading of the written statement would show that the claim is vague and ambiguous. But on going through the records and evidence and judgment of the courts below, it is seen that what was agitated was both prescriptive right as well as the easement by necessity. There is no case that the defendants obtained the property by way of severance of tenement. So Section 13 of the Easements Act has no application. And both the courts have found that there is absolute want of pleadings or evidence regarding the claim made by them on the basis of prescriptive right of easement so as to attract Section 15 of the Easements Act. Having found so, normally the reliefs :10: S.A.No.594 of 1999-D could not have been denied to the plaintiff. 15. It may be true that the plaintiff is guilty of suppressing certain facts. But one has to remember that he is entitled to protect his property from trespassers. And even assuming that at one point of time the defendants had walked through the plaint schedule property that does not mean that the plaintiff cannot put up fencing around his property and protect his property from invasion. If the defendants have any manner of right to use any portion of the property it is up to them to establish their right. In the case on hand both the courts below have found that the defendants have miserably failed to establish any manner of right to use any portion of the plaint schedule property as the pathway. This Court has gone through the entire pleadings and evidence. It is unable to concur with the view that has been taken by the court below. 16. In the above circumstances this Court finds that it is difficult to confirm the judgment and decree of the courts :11: S.A.No.594 of 1999-D below. Having found that the defendants have failed to establish any manner of right to use any portion of the plaint schedule property as a pathway as already noticed the plaintiff is entitled to reliefs. 17. In the result :- This appeal is allowed and a decree passed in the following terms:- The defendants or anyone claiming under them are restrained by a permanent prohibitory injunction from interfering with the peaceful enjoyment and possession of the plaint schedule property by the plaintiffs. There will be no order as to costs. P.BHAVADASAN JUDGE kkj