IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932 SA.No. 96 of 1999(C) & CROSS OBJECTION ----------------------------------------------------------------- AS.156/1993 of 1ST ADDL.DISTRICT COURT, THRISSU-R OS.176/1988 of MUNSIFF'S COURT, WADAKKANCHERRY .................... APPELLANT(S): 1ST RESPONDENT:1ST DEFENDANT: -------------------------------------------------------------------------------- VARKEY, S/O.CHOODEL PARANCHU, CHOODEL VILLAGE - DESOM, THALAPPILLY TALUK. (DIED) - LR'S IMPLEADED: A2. JOSEPHINA, CHOODEL VILLAGE, CHOODEL DESOM, THALAPPILLY TALUK. *TRANSPOSED AS ADDL.2ND APPELLANT AS PER ORDER ON 3/2/2006 IN I.A.NO.2362/04 AND RECORDED AS LEGAL HEIRS OF DECEASED APPELLANT AS PER ORDER DTD. 3/02/2006 IN I.A.2363/04. **ADDL.APPELLANTS: A3. JENNI JOSEPH, S/O.CHOONDAL PARANCHU, CHOONDAL VILLAGE, CHOONDAL DESOM, THALAPPILLY TALUK. A4. SHEEJA ANTO, OF ...DO..DO... A5. PRINCY TONY OF ...DO.DO.... A6. MOLY FRANCIS OF ..DO.DO... A7. PRINCE VARKEY OF ..DO..DO... (**ADDL.APPELLANTS 3 TO 7 ARE IMPLEADED AS THE LRS OF DECEASED 1ST APPELLANT AS PER ORDER DTD. 22/08/2006 IN I.A.NO.1788/06) BY ADVS. SRI.B.KRISHNA MANI, SRI.V.PREMCHAND SRI.K.SUBASH CHANDRA BOSE, SRI.RAHUL VENUGOPAL, SMT.S.SIBHA. Kss ..2/- ..2.... SA.NO.96/1999 RESPONDENT(S): APPELLANTS 2 TO 6 (LEGAL HEIRS OF THE PLAINTIFF) RESPONDENTS 2, 3 - DEFENDANTS 2 AND 3: ---------------------------------------------------------------------------------------------- 1. THOMAS, S/O. CHOODEL CHAKKUNNY, THALAPPILLY TALUK. 2. GEORGE, S/O.CHOODEL CHAKKUNNY, DO..DO.... 3. VINCENT, S/O.CHOODEL CHAKKUNNY, ...DO..DO.... 4. JAMES, S/O.CHOODEL CHAKKUNNY, ...DO..DO.... 5. MARY LOUIS, D/O.CHOODEL CHAKKUNNY AND W/O.PUTHOOR VEETTIL LOUIS, VENKITANGU AMSOM DESOM, CHAVAKKAD TALUK. ***6. THRESSIA, D/O.CHOODEL PORINCHU, CHOODEL VILLAGE DCESOM, THALAPPILLY TALUK. ( D E L E T E D). ***NAME OF R6 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DTD. 18/01/2011 IN I.ANO.2130/2010. 7. JOSEPHINA, W/O.CHOODEL VARKEY, CHOODEL VILLAGE, DESOM, ..DO... (TRANSPOSED) BY ADVS. SRI.P.VIJAYA BHANU, SRI.T.A.UNNIKRISHNAN. THIS SECOND APPEAL AND CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 24/02/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.280/1999 IN S.A.NO.96/1999 DISMISSED 24/02/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 96 of 1999 & Cross Objection - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of February, 2011. JUDGMENT The first defendant in O.S. 176 of 1988, who suffered a decree at the hands of the lower appellate court, is the appellant. During the pendency of the appeal, the appellant died and additional second appellant was impleaded. The sixth respondent is also no more and his legal heirs were brought on the party array and transposed as additional respondents 3 to 7. 2. The parties and facts are hereinafter referred to as they are available before the trial court. 3. The suit relates to B schedule property shown in Ext. C2(a) rough sketch. It is an admitted fact that both the parties trace their title to Ext.A1 partition deed. In Ext.A1 partition deed, it is conceded by both sides that a pathway having a width of 2 ½ koles was laid. The plaintiff S.A.94/1999. 2 would say that subsequently by utilizing the portion of the property owned and possessed by the plaintiff, the pathway was widened. 4. The defendants on the other hand would say that the plaintiff has infact encroached into a portion of their property and made a claim thereafter saying that he had widened the pathway utilizing the property obtained by him. The defendant had raised various other contentions, which are not very relevant for the present purpose. 5. On the basis of the above pleadings, the trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 to 4 and documents marked as Exts.A1 to A5 from the side of the plaintiff. The defendants examined D.W.1 and had Ext.B1 marked. Exts.C1, C1(a) C1(b), C2 and C2(a) are the commissioner's reports and plan and village plans. The trial court found that there is no evidence to show as to when the pathway was widened and dismissed the suit as regards the S.A.94/1999. 3 pathway and also declined to grant other reliefs. The plaintiff took up the matter in appeal as A.S. 156 of 1993. The lower appellate court was of the view that the claim put forward by the plaintiff is substantiated and there is an encroachment into a portion of the pathway by the defendants. Therefore, relief in respect of the way was granted. The said judgment and decree of the lower appellate court is challenged in this appeal. 6. Notice is seen issued on the following questions of law: “(i) Was the lower appellate court right in granting a decree for permanent prohibitory and mandatory injunction in respect of B schedule by totally discarding the evidence of P.Ws.1 to 4? (ii) Is it not clear that the description of B schedule is totally incorrect and that the same is not situated in its original position. (iii) Is it not clear that the plaintiff and his men have unauthorisedly widen the original pathway into the defendants' property? S.A.94/1999. 4 (iv) Was the lower appellate court justified in accepting Ext.C2 and C2(a) when the commissioner has not even been examined? (v) Is it not clear that the lower appellate court has completely discarding the evidence on record? (vi) Under the circumstances was the lower appellate court justified in versing the decree passed by the trial court?” 7. Learned counsel appearing for the appellant pointed out that the lower appellate court was not justified in reversing the judgment and decree of the trial court, which had considered all the aspects of the case and had come to the conclusion that there was no evidence to show that the pathway was widened utilizing a portion of the property obtained by the plaintiff as per the partition deed. Learned counsel referred to Exts.C1(a) and C1(b) and pointed out that it could be seen from those plans that no portion of the property of the plaintiff has been utilized for widening the pathway. That leads to a conclusion that if the S.A.94/1999. 5 pathway had been widened, that was by encroaching into a portion of the property of the defendants. These vital aspects, according to learned counsel, have been omitted to be noticed by the lower appellate court and the lower appellate court has based its decision on conjunctures and surmises and accordingly it is contended that the judgment and decree of the lower appellate court are clearly unsustainable both on facts and in law. 8. Per contra, learned counsel appearing for the respondent pointed out that the lower appellate court has analysed the evidence in considerable detail and based its conclusion on preponderance of probabilities. The lower appellate court has found that going by Ext.C2(a) rough sketch, it would appear that the defendants had entered into a portion of the pathway and also that the claim made by the defendants that it was entering into their property that the pathway was widened cannot be correct. The lower appellate court also found the evidence of P.Ws.3 and 4 to S.A.94/1999. 6 be acceptable and based its conclusion on the basis of the evidence on record. Learned counsel went on to point out that the decision is based on the evidence on record and no question of law arises for consideration in this second appeal. 9. As already noticed, the dispute relates to a pathway, which is shown as B schedule. A schedule items 1 and 2 belong to the plaintiff and C schedule belongs to the defendants. The defendants' property is situate on the southern side of the plaintiff's property. The disputed way lies on the western side of a portion of item No.1 property and on the eastern side of plaint C schedule property. The width of the pathway was 2 ½ koles. The commission report Ext.C2 shows that as of now the northern end of the pathway has a width of 9 ½ feet and as it runs towards the southern side and almost in the middle the width gets reduced to 7 feet, then on the southern end again regained the original width. S.A.94/1999. 7 10. The lower appellate court was greatly impressed by Exts.C1 report, C1(a) village plan and Ext.C2 commission report, which prima facie indicated that the claim of the defendants cannot be true. There seems to be some confusion regarding Exts.C1, C1(a) and C1(b). But one can refer to Ext.C2 commission report. Ext.C2 commission report shows two pillars F and E in the rough sketch appended to the commission report. Though the lower appellate court has found that it was put up long ago and the defendants had no case that that was put up recently. The lower appellate court has also noticed that there is a well laid boundary on the western side of B schedule property. That of course forms part of the eastern boundary of the defendants' property. The commissioner has also reported that except at the portion shown as B-C, the portions shown as A-B, C-F, the boundary seems to be old. This aspect of the report of the commissioner was taken note of by the lower appellate court to come to the S.A.94/1999. 8 conclusion that the claim of the defendants that the plaintiff had recently trespassed into their portion cannot be true. The lower appellate court was also of the opinion that the hindrance, which is shown as B-C in the first commission report, can by logical reasoning would have been done only by the defendants and the plaintiff would get no benefit by creating such an obstacle. 11. The case of the plaintiff was that he had utilized a portion of his property for widening the pathway so as to have access to plot 2 shown in Ext.C2 commission report, where he starts a small industrial concern. If that was the purpose for which the way was used by the plaintiff, it is inconceivable that he had created the obstruction B-C because by doing so, lorries cannot be taken through the way by him. It is these facts, which had persuaded the lower appellate court to come to the conclusion that there was no tampering of the western boundary of the pathway, which is the eastern boundary of the defendants' property and also S.A.94/1999. 9 that the obstruction shown as B-C in the commission report seem to have been done by the defendants. The lower appellate court has also relied on the statement in the cross examination of D.W.1 that he is willing to give 2 ½ koles width for the pathway from the eastern side of the property obtained by him as per Ext.A1. That may not have much relevance. There is no dispute regarding the fact that as per Ext.A1 the width of the pathway is 2 ½ koles. Whatever that be, it may not of much relevance. 12. The lower appellate court has chosen to accept the claim of P.Ws. 3 and 4. According to the lower appellate court there is no reason to disbelieve them and they had no reason to depose against the interest of the defendants. It was these items of evidence, which had persuaded the lower appellate court to grant the relief to the plaintiff. As rightly pointed out by the learned counsel for S.A.94/1999. 10 the respondents, the finding of the lower appellate court are based on an appreciation of the evidence on record and are findings of fact. No substantial question of law, much lass any substantial question of law, arises for consideration in this Second appeal. There is no merit in the Second Appeal and in the cross objection. Hence they are dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.