IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 RSA.No. 1161 of 2003() ---------------------- AS.81/2000 of DISTRICT COURT, PALAKKAD OS.494/1996 of MUNSIFF COURT, CHITTUR .................... APPELLANT/RESPONDENT/DEFENDANT(S): -------------------- THANKAVELUSWAMY,S/O.NACHIMUTHU CHETTIAR, RESIDING AT MANALITHODU, KUNNAMKATTUPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.SREEKANTH.K.R SMT.G.GEETHISHA RESPONDENT(S)/APPELLANT/PLAINTIFF: --------------- LAKSHMANASWAMY,S/O.NACHIMUTHU CHETTIAR, RESIDING AT MANALITHODU, KUNNAMKATTUPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. ADV. SRI.ANIL S.RAJ SMT.K.N.RAJANI SRI.RADHIKA RAJASEKHARAN P. SMT.ANILA PETER SRI.HARIHARAN (CAVEATOR) SRI.SREE RAMAKRISHNAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/10/2010, THE COURT ON 27/10/2010 PASSED THE FOLLOWING: R.S.A.NO.1161/2003 ORDER ON I.A.NO.1491/2003 & I.A.NO.2627/2010 IN R.S.A.NO.1161/2003 DISMISSED. 27.10.2010 SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.1161 OF 2003 ----------------------------------- Dated this the 27th day of October, 2010 J U D G M E N T The defendant in O.S.No.494 of 1996 on the file of the Munsiff Court, Chittur is the appellant. The above suit was one for injunction, both prohibitory and mandatory, filed by the respondent/plaintiff. The trial court dismissed the suit, but, in the appeal preferred by the plaintiff, the lower appellate court reversing that dismissal, granted a decree as applied for. Hence, this second appeal by the defendant. 2. The dispute in the case between two brothers relate to B schedule, a pathway, which is claimed by the plaintiff as part of his property described as A schedule. Under A1 partition deed entered by the parties in the suit with another brother and also their father, B schedule therein was allotted to the defendant and D schedule to the plaintiff. One of the items covered by D schedule comprised in old Sy.No.321 part is described as A R.S.A.NO.1161/2003 2 schedule in the plaint. Whereas the case of the plaintiff is that the B schedule described in the plaint starting from the panchayat road situated on the southern side and proceeding towards the north along the western side of his property leads to his residential building situated on the north- east, and over such pathway he has got title, the defendant had resisted such claim contending that the B schedule pathway commencing from the panchayat road and proceeding towards the north terminates at the southern side of his property and thereafter it does not proceed further. The trial court, on the materials placed, which consisted of PW1 and Exts.A1 to A3 series for the plaintiff and DW1 for the defendant and also that of the advocate commissioner as CW1, and her report and plan as Exts.C1 and C2 series, had concluded that the plaintiff is not entitled to the reliefs canvassed in the suit. However, the lower appellate court, after re-appreciating the materials came to a different conclusion, upheld the claim of the plaintiff over B schedule pathway and granted him a decree of injunction, both prohibitory and mandatory as canvassed for. Hence the appeal R.S.A.NO.1161/2003 3 by the defendant. 3. In the second appeal, the substantial question that has been formulated for consideration is as follows: Whether the lower appellate court was justified in law in reversing the well-founded decree of the trial court dismissing the suit when only a portion of the disputed pathway falls within the share allotted to the plaintiff ? 4. I heard the counsel on both sides. Though in the plaint, the claim over B schedule and the decree of injunction, both prohibitory and mandatory, had been canvassed on two divergent and inconsistent pleas, one of them built on the title of B schedule as forming part of A schedule and the other as of having a right of quasi-easement over B schedule pathway, the learned counsel for the respondent/plaintiff submitted that the claim for injunction is based only on the former and not on the basis of quasi-easement. It is further submitted by the counsel that the claim of quasi-easement was raised only in the R.S.A.NO.1161/2003 4 alternative, if for any reason, the claim of the plaintiff over B schedule on the basis of title was found unacceptable. Needless to point out, the inconsistent pleas so canvassed to sustain the suit claim for a decree of injunction could not be appreciated at all as injunction is a discretionary relief, and the plaintiff, who seeks such a relief is bound to prosecute his case with a definite claim as to whether it is on the basis of the title or by way of the right of quasi-easement. Whatever that be, since the claim raised over B schedule by way of quasi-easement by the plaintiff has been given a go by, the merit of the decree of injunction granted need be looked into only with reference to the title of the plaintiff set up over B schedule pathway. 5. Title over B schedule pathway is claimed by the plaintiff on the basis of the allotment made in his favour under A1 partition deed. As already stated, in A1 partition deed, D schedule is allotted to the plaintiff and B schedule to the appellant/defendant. A1 partition deed was entered by three brothers including the plaintiff and defendant with their father at R.S.A.NO.1161/2003 5 a time when the plaintiff, the youngest of the brothers was a minor. The existence of a way in the properties partitioned at the time of severance and the restrictive covenant imposed under A1 deed for its continuous use and enjoyment, is the basis of the claim of title set up over that pathway by the plaintiff. The recital in A1 partition deed over the pathway in existence at the time of severance of the properties in favour of the sharers has been reproduced in the judgment of the lower appellate court. That recital would only indicate that over the pathway then in enjoyment, which formed part of old Sy.No.321 part and allotted in D schedule to the plaintiff, the defendant, who was allotted B schedule, has a right to take his cattle, men and cart, and the plaintiff has no right to cause any obstruction thereof. The pathway comprised in the D schedule of the plaintiff situated in old Sy.No.321 part is described as “vandivazhi” (a lane through which cart can be taken) indicating that even at that point of time, it was wide enough to ply carts as well. The existence of such a cartable road in old Sy.No.321 part as forming part of D schedule allotted to the plaintiff appealed to the lower appellate R.S.A.NO.1161/2003 6 court to uphold the claim of the plaintiff that he has title over the plaint B schedule pathway, where the report and plan prepared by the advocate commissioner in the suit indicated the existence and continuance of a pathway even beyond the southern extremity of the defendant's property upto the residential building of the plaintiff situate to the north east of the property of the defendant. Subsequent to the suit, some unauthorised constructions were put up in such pathway by the defendant, was the case of the plaintiff for amending the plaint to seek the decree of mandatory injunction. The lower appellate court found that claim also of having merit and consideration where the existence of a pathway B schedule, as indicated above, was found established by materials. The question whether the plaintiff had title over the B schedule as identified by the advocate commissioner, which on her determination, is seen continuing to a considerable extent as passing beside the properties of the defendant on both sides was not taken note of by that court while it upset and reversed the decision of the trial court, with reference to the materials produced. R.S.A.NO.1161/2003 7 The learned counsel for the plaintiff argued before me that there was no challenge against the measurements carried over the properties in the resurvey, which was done in 1975, by the defendant, and C2 (a) plan prepared by the advocate commissioner with the assistance of a surveyor identifying and demarcating the B schedule pathway with reference to resurvey measurements would clearly establish the title of the plaintiff over B schedule. I find other than showing the identification of the pathway now in existence as running through the properties of the plaintiff and defendant and, perhaps, of the other sharers also in A1 partition deed, in no way C2 (a) plan can assist the plaintiff to sustain his claim of title over B schedule. His claim of title set up over B schedule pathway, no doubt, has to be established by proof of having obtained title over such pathway. As indicated earlier, the recital in A1 would only indicate that the defendant, who was allotted B schedule, has a right of quasi- easement in one of the items allotted under D schedule to the plaintiff, comprised in old Sy.No.321 part. It is seen, from perusing the C2 (a) plan and also the allotment made in A1 deed, R.S.A.NO.1161/2003 8 not only the plaintiff but the other sharers were also alloted property in old Sy.No.321 part. So much so, on the recital stated above in A1 partition deed, it does not follow that the plaintiff has title over B schedule pathway in old Sy.No.321 part even if it does not fall under the property allotted to him under D schedule. B schedule pathway described in the plaint to a considerable extent, as seen from C2 (a) plan, pass in between the properties belonging to the defendant, on east and west, which was previously comprised in old Sy.No.321 part, and presently in R.Sy.No.506/2. When that be the case, unless the plaintiff establishes his title over that portion of the pathway as well, which he has failed to do so, the claim set up by him for a decree of injunction on the basis of title over plaint B schedule could not have been granted at all. At the most, the plaintiff has been able to show that he has title only over a portion of the B schedule and not in respect of the whole pathway described in the plaint and determined under C2 report and C2 (a) plan. That being so, the lower appellate court went wrong in reversing the dismissal of the suit by the trial court and granting the plaintiff a R.S.A.NO.1161/2003 9 decree of injunction, which was canvassed on the basis of title over B schedule pathway. The decree of injunction, both prohibitory and mandatory, so granted by the lower appellate court in favour of the plaintiff, in such circumstances, is liable to be set aside. Reversing the decree of the lower appellate court, the dismissal of the suit by the trial court is restored and the appeal is allowed directing both sides to suffer their respective costs. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.NO.1161/2003 10