IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 RSA.No. 157 of 2011 --------------------------------- AS.128/2007 of I ADDL. DISTRICT COURT, PALAKKAD OS.356/2003 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANTS/RESPONDENTS 2 TO 4/LRs OF PLAINTIFF: 1. SUSHA, W/O.SIVAN, LIC AGENT, PIRAYIRI AMSOM, PALAKKAD DISTRICT. 2. ANEESH, S/O.SUSHA, DO. DO. 3. AJEESH (MINOR), REP. BY MOTHER GUARDIAN-SUSHA, DO. DO. BY ADV. SRI.V.V.ASOKAN SMT.RUKHIYABI MOHD KUNHI SMT.M.RAMANYA GAYATHRI RESPONDENT/APPELLANT/DEFENDANT: PAUL, S/O.DEVANESAN, PIRAYIRI AMSOM, PALAKKAD TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.157 of 2011 -------------------------------------- JUDGMENT Legal heirs of the plaintiff in O.S.No.356/2003 on the file of Munsiff's Court, Palakkad are the appellants. Defendant is the respondent. Plaintiff instituted the suit seeking a mandatory and permanent prohibitory injunction contending that the eastern boundary of plaint A schedule property is plaint B schedule way and respondent has no exclusive right over the said way and he is having only a right to use the way. Plaintiff constructed a gate on the south eastern boundary of plaint A schedule property and has been using the said gate to enter into plaint B schedule way. Respondent constructed a structure immediately to the east of the said gate to cause obstruction to the right of way and he has no right to do so and therefore, a mandatory injunction is to be granted to remove that structure and and also a permanent prohibitory injunction restraining the RSA 157/2011 2 respondent from causing any obstruction to the use of plaint B schedule way. 2. Respondent contended that plaintiff has no right of way through plaint B schedule property and the southern boundary of plaint A schedule property is a Panchayat Road and as he has no right, plaintiff is not entitled to the decree, sought for. 3. Learned Munsiff, on the evidence of plaintiff as PW1, defendant as DW1 and Exhibits A1 to A8, B1 and C1 to C2(a), granted a decree in favour of the plaintiff finding that respondent has no right to cause any obstruction to plaint B schedule way. Respondent challenged the judgment and decree before District Court, Palakkad as A.S.No. 128/2007. During the pendency of the appeal, respondent in the appeal, the original plaintiff, died. Appellants were impleaded as his legal heirs. Learned District Judge, on re- appreciation of evidence, found that when plaint A schedule property is having Panchayat Road as the southern boundary, where a gate is also installed, plaintiff has no RSA 157/2011 3 right over plaint B schedule way and therefore, held that plaintiff is not entitled to the mandatory or prohibitory injunction sought for. First appeal was allowed and judgment and decree of the trial court were reversed. This second appeal is filed challenging the judgment and decree of the first appellate court. 4. Learned counsel appearing for the appellant was heard. 5. Argument of the learned counsel is that Exhibit A2, the title deed of the respondent, establishes that respondent has no absolute right over plaint B schedule way and he has only a right to use the way. Exhibit A1, the title deed of the plaintiff, establishes that the eastern boundary is a way and in such circumstances, plaintiff is entitled to use plaint B schedule way and respondent, who has only a fractional right to use that way, has no right to cause obstruction to the way available to the plaintiff and therefore, first appellate court was not justified in reversing the findings of the trial court. Learned counsel argued that the fact that RSA 157/2011 4 plaintiff has right of way to the western road does not mean that he has no right to use the eastern way and in any case, respondent, who is only having a right to use that way, has no right to cause any obstruction to that way and therefore, the decree of the trial court is to be restored. 6. The only point that arises for consideration is whether plaintiff is entitled to claim a right of way to the property which lies to the east of plaint A schedule property purchased by him under Exhibit A1, for the reason that the eastern boundary is described as a way in Exhibit A1 title deed. 7. Exhibit A1 assignment deed shows that on 19.2.1996, assignors Meenakshi Amma and others, sold plaint A schedule property to deceased plaintiff granting absolute right over that property. Description of the property shows that plaint A schedule property, assigned under Exhibit A1, lies to the north of the Panchayat Road. The eastern boundary shown is 3.6 metres width of way. South is the Panchayat Road, west is the property of RSA 157/2011 5 Kadavath Chinnamma and north, the property given to Rajkumar. The said eastern way is plaint B schedule property. The property lies immediately to the east of plaint B schedule property is that of Muthukutty Muthan. Property of the respondent lies to the north of the property of Muthukutty Muthan as well as plaint B schedule property. The property which lies to the west of the property of the respondent is that of Rajkumar, referred to in Exhibit A1 and subsequently obtained by Premkumar. Plaint B schedule property is the way leading from the Panchayat Road and leads to the property of the respondent and Rajkumar/Premkumar and it lies in between plaint A schedule property of the plaintiff and the property of Muthukutty Muthan. It is the admitted case that property of Muthukutty Muthan, the respondent and that of Rajkumar/ Premkumar and plaint B schedule property originally belonged to one common owner. Exhibit A2 sale deed executed in favour of the respondent by Devanesan shows that the property, which lies to the north of the property of RSA 157/2011 6 Muthukutty Muthan, was assigned to the respondent and the right to use the plaint B schedule way was also assigned thereunder. Exhibit A2 also shows that entire property originally belonged to Muthukutty Muthan and assignors under Exhibit A2 obtained the property transferred as per Document No.2449/1996 and the property which lies to the west, namely, the property of Rajakumar/Premkumar was assigned earlier. It is, thus, clear that when property was assigned to Rajakumar, a way was provided for the said property as well as to the property, which lies to the east. Subsequently, the northern property was assigned in favour of the respondent under Exhibit A2. It is, in such circumstances, while plaint A schedule property was assigned in favour of deceased plaintiff, eastern boundary was described as a way. It is pertinent to note that eastern boundary is not noted as a public way but only a way. Evidently, as on the date of execution of Exhibit A1, the eastern property, which lies to its east, was kept as a way for the property assigned to Rajkumar and the property RSA 157/2011 7 retained, which was later assigned under Exhibit A2 to the respondent. While executing Exhibit A1, plaint B schedule property was described as a way. 8. When plaint B schedule property is not a public way, plaintiff cannot claim right of way to that property unless he has a right of easement. The southern boundary of the property assigned under Exhibit A1 is Panchayat Road. There is no question of any right of easement by necessity. There cannot be right of easement by prescription also, as plaintiff purchased the property in 1996 and the suit was instituted in 2003. True, respondent cannot claim any exclusive right over plaint B schedule way, as that way is also available to Rajkumar/Premkumar, the owner of the property, which lies to the west of the property of the respondent. But, so long as plaintiff has no right over that way, he is not entitled to get a decree for mandatory injunction or permanent prohibitory injunction for the sole reason that his eastern boundary in the title deed is a way. As stated earlier, the description does not show that it is a RSA 157/2011 8 public way. Exhibit A2 also shows that it is a public way, but a private way. Under Exhibit A2, right to use the way alone was assigned to the respondent. In such circumstances, plaintiff is not entitled to get a decree of mandatory injunction or permanent prohibitory injunction. First appellate court rightly reversed the findings of the learned Munsiff. I find no substantial question of law involved in the appeal. Appeal is dismissed. 10th February, 2011 (M.Sasidharan Nambiar, Judge) tkv