IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 RSA.No. 359 of 2008() --------------------- AS.58/2005 of ADDL. DISTRICT COURT, VADAKARA OS.51/2004 of MUNSIFF COURT, VADAKARA .................... : APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------------- PUTHIYADATH CHANDRAMATHI, W/O.KRISHNAN, PUTHIYADATH, ONCHIYOM AMSOM, KANNUKKARA DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW RESPONDENTS: RESPONDENTS/DEFENDANTS: ------------------------------------ 1. SANTHINI, W/O. HARIDASAN, KALLYANI HOUSE, MADATHI KUNNUMMAL, KUNNUKKARA, VADAKARA TALUK, KOZHIKODE DISTRICT. 2. HARIDASAN, S/O. ACHUTHAN VALLIPARAMBATH, KALLYANI HOUSE, AZHIYOOR AMSOM, CHOMBAL DESOM, VADAKARA TALUK, KOZHIKODE DISTRICT. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.935/2008 IN R.S.A.NO.359/2008 9.4.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 359 OF 2008 =========================== Dated this the 9th day of April, 2008 JUDGMENT Plaintiff in O.S.51/2004 on the file of Munsiff Court, Vadakara is the appellant. Respondents are the defendants. The suit was filed for injunction contending that plaint A schedule property originally belonged to Krishnan husband of the appellant and his brother Balan and while they were in joint possession they partitioned the property under Ext.A1 partition deed No.600/84 whereunder A schedule property therein and the house was allotted to the share of Krishnan and B schedule property therein was allotted to the share of Balan and plaint B schedule is the way set apart under Ext.A1 for the use of both Balan and Krishnan and when Krishnan died his right devolved on the appellant and the right of Balan was subsequently assigned in favour of third respondent who is the son of first respondent and husband of R.S.A.359/08 2 second respondent. It was contended that plaint B schedule way was subsequently widened and respondents have no right to cause any obstruction to the way. It was contended that on 1.3.2004 an attempt was made to reduce a portion of plaint B schedule way and it was resisted and respondents have no right to encroach upon plaint B schedule way and therefore respondents are to be restrained by a permanent prohibitory injunction. 2. Respondents in the written statement resisted the case of appellant admitting Ext.A1 as well as existence of a way having a width of 3 feet. It was contended that under Ext.A1 a common way was provided having an east west measurement of 9 ½ koles and also width of ½ kole and appellant is not entitled to claim right of way over plaint B schedule property. Plaint B schedule property is described as a way having a width of 6 feet. 3. Learned Munsiff on the evidence of PW1, Exts.A1 and A2, B1 to B3 dismissed the suit. It was challenged before District Court, Vadakara in R.S.A.359/08 3 A.S.58/2005. Learned Additional District Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the appeal. 4. Learned counsel appearing for appellant was heard. 5. The argument of the learned counsel is that both the courts below dismissed the suit on the failure of appellant to establish the cause of action. It was argued that no issue was framed with regard to the identity of the property and therefore failure of appellant to take out a commission to identify the property is not fatal and dismissal of the suit was unsustainable. Learned counsel argued that when PW1 was examined, Ext.A2 sketch showing plaint B schedule way was marked and PW1 deposed that Balan the assignor of the third respondent had granted permission to widen the way which originally stood as provided under Ext.A1 and that evidence of PW1 was not challenged and the only cross examination was a R.S.A.359/08 4 suggestion that Ext.A2 was prepared to get an order of temporary injunction and in such circumstance courts below should have granted a decree for injunction. 6. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 7. The property belonging to appellant and respondents, originally belonged to two brothers Krishnan and Balan. Appellant is the widow of Krishnan and third respondent is the assignee of Balan. The property was divided under Ext.A1 in 1984. Ext.A1 provides a way having a width of ½ six feet koles. It would come only to 3 ft. Plaint B schedule property is described as a way having a width of 6 ft. What was contended by PW1 at the time of evidence was that subsequently with permission of Balan, the way was widened and the said widening was in the presence of Balan. According to PW1, the way was widened to a width of 2 ½ to 3 feet. As provided under Ext.A1, width R.S.A.359/08 5 was only 3 feet. Therefore in the light of Ext.A1 appellant cannot succeed in claiming a right of way over a way having a width of 6 feet, unless it is established that Balan had agreed and pursuant to the agreement the way was widened to a width of 3 feet, in addition to the original width of 3 feet. Though it is the case that the way was widened to 6 feet, what was deposed by PW1 was that it was widened only to an additional width of 2 ½ feet to 3 feet. If that be so, appellant cannot claim a way having a width of 6 feet which is the plaint B schedule property. Moreover, when appellant is claiming a right of way, in addition to the way provided under Ext.A1, it is for her to establish a right of way over an additional width of 3 feet than what was provided under Ext.A1. The fact that respondents in the written statement admitted that at the time of marriage in the house of appellant, Balan had permitted to widen the way does not enable the appellant, to claim a right of way having an additional width. What was admitted R.S.A.359/08 6 in the written statement was that for the limited purpose of completing the marriage ceremony the existing way was permitted to be widened. In such circumstance, without establishing a right of way over the additional width of 3 feet than the way provided under Ext.A1 appellant is not entitled to a decree for injunction. Courts below rightly dismissed the suit. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006