IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 18TH MARCH 2008 / 28TH PHALGUNA 1929 SA.No. 168 of 1995() -------------------- AS.47/1991 of SUB COURT, KASARAGOD OS.41/1985 of PRL.MUNSIFF, KASARAGOD .................... APPELLANTS:APPELLANTS:DEFENDANTS: ---------------------------------------------------------------- 1. N.G.VIGNESHWARA BHAT 2. N.G.JAYAGOVINDA SHARMA 3. N.G.UDAYASHANKARA BHAT NO.1 IS THE SON OF GUTHU GOVINDA BHAT AND NOS.2 AND 3 ARE THE CHILDREN OF NO.1. ALL ARE HINDUS, RESIDING AT NELLIKUNJE GUTHU HOUSE IN BADIADKA VILLAGE OF KASARAGOD TALUK, P.O. UKKINADKA. BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENTS: RESPONDENTS:PLAINTIFFS: -------------------------------------------------------------------- 1. PARAMESHWARI 2. N.G.MAHESH 3. N.G.GIRISH NO.1 IS THE W/O.CH.H.KRISHNA BHAT, NOS.2 AND 3 ARE THE CHILDREN OF NO.1 OF WHOM NO.3 IS A MINOR, REPRESENTED BY GUARDIAN:MOTHER NO.1. ALL ARE RESIDING AT “ISHA KRIPA”, NELLIKUNJE GUTHU, BADIADKA VILLAGE, KASARAGOD TALUK, P.O.UKKINADKA. BY ADV. SRI M.C. SEN SRI.JAYAPRAKASH SEN SRI.M.P.SREEKRISHNAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.509/1995 IN S.A.NO.168/1995 DISMISSED 18/03/2008 SD/- M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. S.A.NO.168 OF 1995 Dated, this the 18 th day of March, 2008 JUDGMENT Defendants in O.S.41/1985 on the file of Munsiff Court, Kasaragod are the appellants. Plaintiffs 2 to 5 are the appellants. Original first plaintiff died when the suit was pending before the trial court and appellants 3 and 4 were impleaded as his legal heirs. Suit was instituted for permanent and mandatory injunction. In the suit, respondents sought a permanent prohibitory injunction restraining appellants from obstructing or interfering with their right to use the pathway P1, P2 P4 and the road “R” and from locking gates G and G1 and for a mandatory injunction directing appellants to restore pathway P1 to its original width of 2 ½ feet and also for a mandatory injunction to remove the coconut plants planted in R.S.No.1076/5 on the side of pathway P4. The S.A.168/1995 2 property of appellants and respondents were admittedly divided under Ext.A1 partition deed dated 11.8.1977. Under Ext.A1 respondents were allotted the properties shown in schedule B E and F. The family house which was existing at the time of the division was in R.S.No.1076/1, to its west is the property in R.S.No.1073/6. The property of respondents allotted under Ext.A1 and further to the south east of the said properties. Under Ext.A1 appellants were allotted the properties in R.S.No.1073/6,1076/1, 1078/1 and 1078/2A. There is a rain water channel which lies to the south of the said properties. Properties in R.S.No.1066/2,1066,1071/5,1078/2A,1978/2B, 1080/2 (western portion) were allotted to first plaintiff, 1080/2 (middle portion) 1078/1,1078/4,1076/2 (eastern portion) 1077/1, 1077/2,1077/3 were allotted to first respondent, R.S.No.1080/2 (middle portion) 1082/4, 1076/4 were allotted to second respondent. Ext.A1 provides a right of way to the properties allotted to respondents. It is admitted S.A.168/1995 3 case that a road which leads from Puthur to Ukkinadka reaches the family house by name Guthu house which is in R.S.No.1076/1. Ext.A1 provides a right over the pathway through R.S.No.1073/6,1076/1, 1076/2 and 1078/1 to the properties allotted to the share of respondents from the road which leads from Ukkinadka to Guthu house. According to respondents, under Ext.A1 they have a right to use the road which runs through R.S.No.1073/6 and touches the western boundary of R.S.No.1076/1 and right to use the gates G and G1 and through the properties R.S.No.1076/1, 1076/2, 1078/1 and 1078/2A and reaches the house of respondents in R.s.No.1082/3. It was alleged that respondents reduced width of the way at portions of namely in R.S.1076/2 and annexed P1, a portion of the way to the northern property belonging to appellants. A decree for mandatory injunction to restore the pathway P1 was sought for. Respondents would contend that appellants are obstructing their right of way through S.A.168/1995 4 R.S.No.1076/1 and gate G and G1 and also through the road R in R.S.No.1073/6. A decree for permanent prohibitory injunction was sought contending that appellants are not entitled to close gate G and G1. Appellants resisted the suit contending that Ext.A1 does not provide a right to use gate G and it only provides a right of way through R.S.No.1073/6 and 1076/1, 1076/2 and 1078/1. It was contended that width of the pathway as provided in Ext.A1 was not reduced by the appellants and reduction in the width was because of the erosion from the side of rain water channel on the south and respondents are not entitled to a decree for mandatory injunction. It was contended that under Ext.A1 respondents have no right to use gateG and respondents are not entitled to the decree for mandatory injunction not to close gate G. Appellants did not object to use portion of the road in R.S.1073/6 upto gate G. It was contended that from gate G onwards respondents have no right to use the road and they have only a S.A.168/1995 5 right to use the way through gate G1 which is a wicket gate. 2. Learned Munsiff on the evidence of PW1, DW1, Exts.A1 and A2, C1 to C4 found that under Ext.A1 respondents have a right to use the road which starts from Ukkinadka and reaches R.S.No.1076/1 inclusive of the gate G and thereafter they have a right of way through P1, P2 and the width of its way is 2 ½ feet as provided under Ext.A1. Holding that appellants are not entitled to reduce the width of pathway a decree for mandatory injunction to restore the pathway P1 as sought for was granted. Rejecting the case of appellants that they have no right to use gate G, learned Munsiff found that respondents have a right to use gates G as well as G1 and granted a mandatory injunction not to close both gates G and G1. The suit was decreed. Appellants challenged the judgment before Sub Court, Ksaragod in A.S.47/1991. Respondents plaintiffs preferred a Cross Objection claiming cost in the suit, which S.A.168/1995 6 was not granted by the trial court. Learned Sub Judge on reappreciation of evidence found that Ext.A1 provides a right to respondents to use the road upto gate G and they have also a right to use both gate G and G1 as found by the trial court. Learned Sub Judge also found that as provided under Ext.A1, respondents have a right of pathway having a width of 2 ½ feet and portions of pathway was reduced and so they are entitled to the mandatory injunction. The appeal was dismissed. The Cross Objection was also dismissed holding that respondents are not entitled to the cost in the suit. The judgment of the first appellate court is challenged in the appeal. 3. The appeal was admitted formulating the following substantial question of law. Whether the lower appellate court Is justified in directing gate G to Be kept open for the use of the plaintiff. 4. Learned counsel appearing for appellants S.A.168/1995 7 and respondents were heard. 5. The argument of the learned counsel appearing for appellants is that under Ext.A1 the right of way provided to respondents is only a right to use the road which reaches upto the west of R.S.1073/6 and thereafter a pathway which runs through R.S.1073/6, 1076/1, 1076/2 and 1078/1 and the width of that pathway is only 2 ½ feet and Ext.A1 does not enable respondents either to claim a right to use a portion of the road passing through R.S.No.1073/6 or the gate in R.S.No.1076/1. It was argued that eventhough legally respondents cannot claim a right to use the road which passes through R.S.No.1073/6, considering the fact that the road was in existence upto the family house in R.S.No.1076/1 appellants have not objected to the use of portion of the road in R.S.No.1073/6 and reaches upto gate G, but respondents have no right to use the gate G and from the western boundary of R.S.No.1076/1 they have only a right to use a way having a width of 2 ½ feet. It was argued that S.A.168/1995 8 eventhough appellants specifically contended before the trial court that the reduction in the width of portion of the pathway P1 was not due to encroachment of the pathway by appellants but because of erosion of soil from the southern side and an objection was filed to the report of the Commissioner and an application was filed before first appellate court to appoint a commission to fix the northern boundary of R.S.No.1075 and 1079 the rain water channel and it was not allowed and the decree for mandatory injunction to restore pathway P1 is not sustainable. Learned counsel also argued that as respondents are only entitled to use a way through the southern portion of R.S.No.1076/1, wicket gate G1 is provided and respondents have no right to use gate G. 6. Learned counsel appearing for respondents argued that evidence establish that the road upto Guthu house in R.S.No.1076/1 was constructed much prior to the execution of Ext.A1 partition deed and the right of way provided in Ext.A1 is to reach S.A.168/1995 9 the said road. It was argued that appellants did not plead in the written statement that gate G was installed by them and when respondents have a right of way to use the road R they are entitled to use gate G also which was installed even prior to Ext.A1 partition deed and appellants are not entitled to close down the gate G and a decree for mandatory injunction was rightly granted. Learned counsel also argued that though gate G1 could also be used by respondents, it is not sufficient for their purpose as articles and cattles cannot be taken through gate G1 and they have the right to use gate G and G1. It was also argued that when Ext.A1 provides a pathway having a width of 2 ½ feet appellants are not entitled to reduce the same and when the existing pathway at some portions of P1 is only less than 2 ½ feet, courts below rightly granted the decree for mandatory injunction. It was then argued that the factual findings of courts below cannot be interfered in exercise of the powers of this court under section S.A.168/1995 10 100 of the Code of Civil Procedure. 7. Respondents are claiming right of way as provided under Ext.A1. Though in the plaint it was claimed that apart from the right provided under Ext.A1, they have a right of easement by necessity and quasi easement, when PW1 was examined he made it unambiguously clear that right of way claimed is only as provided under Ext.A1 and no other right of way claimed. The question is what is the right provided under Ext.A1. When there was some dispute with regard to the correct translation of the relevant provisions in Ext.A1, both plaintiffs and defendants supplied their respective translations before the trial court. It is admitted that the relevant portion of Ext.A1 is as follows:- “B E F sharers have full right to use the mamool pathway now existing on the northern side of the puramboke thodu in R.S.No.1075 and 1079 and existing on the southern side of R.S.No.1073/6, 1076/1,1076/2 and 1078/1 so as to reach the road leading from Ukkinadka to Guthu House. The S.A.168/1995 11 footpath cum Huni (field bund) adjacent to the thodu and paddy fields in R.S.No.1076/2 must be retained to a width of two and a half feet. All the sharers have the full right to travel and take vehicle through the said road situated on the western side of R.S.No.1073/6.” 8. Ext.C1 plan prepared by the Commissioner shows that the road as well as the pathway to Guthu house referred to in Ext.A1 and situated in R.S.No.1076/1. To its immediate west is R.S.No.1073/6. To the east of R.S.No.1076/1 is R.S.No.1076/2. To its further east R.S.No.1078/1. R.S.No.1080/2 and 1082/3 lies further to the south of the rain water channel in R.S.No.1075 and 1079. The road leading from Ukkinadka to Guthu house reaches the western boundary of R.S.No.1073/6. It then proceeds through R.S.No.1073/6. and enters the gate G. What is provided under Ext.A1 on the right to take vehicles is as follows:- “ All the sharers have full right to travel and take vehicle through the said road situated on the western side S.A.168/1995 12 of R.S.No.1073/6”. True, evidence of DW1 who was examined on the side of the appellants establish that the road from Ukkinadka leading to Guthu house was there even before Ext.A1 partition deed. But Ext.A1 partition deed does not provide a right to the other sharers to use that road upto Guthu house. What is provided under Ext.A1 is a right to take vehicle only upto the western side of R.S.No.1073/6. If the right provided under Ext.A1 is to use the road which passes through R.S.No.1073/6 and inclusive of the gate G, what should have been provided under Ext.A1 is that all sharers have full right to travel and take vehicle through the said road situated on the western side of R.S.No.1076/1 and not R.S.No.1073/6 and also the gate on the western boundary of R.S.No.1076/1. The very fact that right to use the road and vehicles was restricted upto the western boundary of R.S.No.1073/6 shows that under Ext.A1 right to use the road which passes through R.S.No.1073/6 was not granted. Still in view of the admission in S.A.168/1995 13 paragraph 9 of the written statement, whereunder appellants admitted that respondents can use the road which passes through R.S.No.1073/6, it is not necessary to deny the right to the respondents on the ground that it was not provided under Ext.A1. 9. Then the question is whether respondents have a right to use gate G. Ext.A1 does not provide a right to use gate G. In fact Ext.A1 does not provide a right to use the road through R.S.No.1073/6 and the right to use the road was limited to the west of R.S.No.1073/6. In such circumstance, there was no occasion to provide a right to use gate G in Ext.A1. What was argued by the learned counsel appearing for respondents was that if the respondents are not entitled to use gate G1, they cannot properly use the way because cattles cannot be taken through gate G1 and headloads also cannot be taken through that gate and therefore the right of way provided under Ext.A1 would be redundant. Learned Sub Judge granted the right to respondents to use gate G, S.A.168/1995 14 holding that when examined as DW1 appellant admitted in cross examination that respondents have a right to use the road upto gate G. and they are also entitled to use gate G. As rightly pointed out by learned counsel appearing for appellants, there is no such admission in the evidence of DW1. On the other hand, DW1 specifically denied that respondents have a right to use gate G. He admitted only the right to use gate G1. Therefore finding of first appellate court based on the alleged admission of DW1 is not sustainable, as there was no such admission. The other reason given by the first appellate court was that respondents have the right to use gate G as gate G was admittedly in existence before Ext.A1. Gate G is having a width of 14 links. First of all, Ext.A1 does not show that gate G was there. It also does not provide that sharers including those to whom shares B E and F were allotted have a right to use gate G. As stated earlier, what is provided under Ext.A1 is only a right to use a S.A.168/1995 15 pathway having a width of 2 ½ feet through the southern side of R.S.No.1073/6, 1076/1 and 1076/2 and 1078/1. If that be so, it cannot be said that respondents have a right to use a gate having a width of 14 links as found by the first appellate court. If the right provided under Ext.A1 is only a right to use a pathway having a width of 2 ½ feet, the right of way at the western boundary of R.S.No.1076/1 cannot be wider than 2 ½ feet. Therefore even if it is taken that gate G was in existence prior to Ext.A1, so long as Ext.A1 does not provide a right to use gate G by all sharers, respondents are not entitled to contend that they have a right to use gate G. They are only entitled to use a way through the south of R.S.No.1076/1 having a width of 2 ½ feet. If that be so, they cannot claim that they should have a right to use a gate having a width of more than 2 ½ feet. The argument of the learned counsel for respondents is that if the right of respondents is restricted to G1, wicket gate they cannot take S.A.168/1995 16 cattles or headloads through that gate and therefore they cannot avail of the right and therefore the right cannot be restricted to gate G1. As pointed out by the learned counsel appearing for appellants, Ext.A1 does not provide a right to respondents to take cattle through the property of respondents. Even if cattle are to be taken through gate G1, respondents cannot claim that they have a right of way of a width of more than 2 ½ feet through R.S.No.1076/1 or 1076/2. If a cattle cannot be taken through a pathway having a width of 2 ½ feet, respondents are not entitled to claim that they have a right to use a gate having a width of more than 2 ½ feet. Unfortunately this aspect was not taken note by the courts below. When Ext.A1 provides only a right to use a pathway having a width of 2 ½ feet, the right to use a gate could only be to that width and not more. If that be so, respondents cannot claim that they have a right to use gate G. They have only a right of through R.S.No.1076/1. So long as that way is S.A.168/1995 17 possible through gate G1, respondents are not entitled to claim that they have a right to pass through gate G or that appellants are not entitled to close gate G. Therefore the decree for mandatory injunction granted in respect of gate G is not sustainable. But appellants are not entitled to close gate G1 as respondents are entitled to use a way. Hence they have a right to use gate G1. If the objection of the respondents is that the width of wicket gate is less than the pathway provided under Ext.A1, respondents are entitled to get a decree for mandatory injunction to widen the wicket gate G1 to a width of 2 ½ feet. To that extent, the mandatory injunction granted in respect of gate G1 is modified. 10. Learned counsel appearing for appellants argued that reduction of the width of pathway P1 at some portions was not due to encroachment of the pathway by appellants and the northern boundary of R.S.No. 1075 and 1079 were not properly fixed and S.A.168/1995 18 therefore a decree for mandatory injunction as granted by the courts below cannot be sustained. When Ext.A1 provides that appellants are not entitled to reduce the width of the pathway P1 and P2 from 2 ½ feet as provided it cannot be reduced. It was proved that width of pathway P1 at some portions as less than 2 ½ feet. Hence respondents are definitely entitled to a decree for mandatory injunction as granted by the courts below. The argument of the learned counsel appearing for appellants that Commissioner has not properly fixed the southern boundary of R.S.No.1076/2 and it was specifically pointed out to the Commissioner that width of the pathway P1 was reduced as the width of the southern thodu was enhanced due to erosion of soil from R.S.No.1076/2 and this fact was not noted by the Commissioner. It was also argued that before the first appellate court, an application was filed to appointed a Commission to fix the portion of the property in R.S.No.1076/2 which had fallen into the rain water channel, S.A.168/1995 19 which lies to the south and it was not allowed and therefore the decree for mandatory injunction granted in respect of R.S.No.1076/2 cannot be sustained. When Ext.A1 specifically provides that respondents have a right of way having a width of 2 ½ feet and that too through the south of R.S. No.1076/2, respondents are entitled to a way having a width of 2 ½ feet extent for pathway P1. The evidence establish that at present some portions of the width of the pathway passing through R.S.No.1076/2 is reduced. Respondents are definitely entitled to get a mandatory injunction to restore the pathway to a width of 2 ½ feet as provided under Ext.A1. But while executing the mandatory portion of the decree in respect of R.S.No.1076/2, the southern boundary of R.S.No.1076/2 is to be fixed and the pathway available to respondents, as provided in Ext.A1 having a width of 2 ½ feet immediately to the north of the southern survey boundary in R.S.No.1076/2 is to be fixed. There is no necessity to remand the S.A.168/1995 20 suit for that purpose as it could be decided in the execution proceedings. It is made clear that if the reduction of the width of pathway P in R.S.No.1076/2 is due to the fact that a portion of the property in R.S.No.1076/2 had fallen towards the rain water channel, appellants are not liable to restore that portion of the pathway. But as respondents have a right of way, they are entitled to restore that pathway at their expense in the execution proceedings. If any portion of the pathway was reduced by the appellants by annexing it to the remaining property in R.S.No.1076/2, appellants are liable to restore the pathway. The appeal is allowed in part. The decree granted by the courts below are modified as follows:- Defendants, their men and agents are restrained by a permanent prohibitory injunction from obstructing or interfering the right of way of the plaintiffs to use pathway P,P1, and P4 and the road R upto gate G1 as marked in Ext.C1 plan. Defendants are also restrained by a permanent S.A.168/1995 21 prohibitory injunction from locking gate G1. As the width of gate G1 is less than 2 ½ feet, defendants are directed to provide a gate at G1 having a width of 2 ½ feet for the use of the plaintiffs within two months and on their failure, plaintiffs are entitled to get a gate installed at the expense of the defendants in execution of the decree. That G1 shall not be locked by the defendants without the consent of the plaintiffs. Defendants are directed to restore pathway P1 to its original width of 2 ½ feet. It is made clear that at the execution proceedings if it is found that the width of the pathway P1 as marked in Ext.C1 plan is less than 2 ½ feet due to the erosion of soil of any portion of the property in R.S.No.1076/2 to the rain water channel in R.S.1075, defendants are not liable to restore that portion of the pathway. In that event, plaintiffs are entitled to get it restored at their expense. So also if reduction of the width of the pathway was due to encroaching of any portion of the S.A.168/1995 22 pathway by the defendants to their remaining property in R.S.No.1076/2 plaintiffs are entitled to get it restored at the expense of the defendants. M.SASIDHARAN NAMBIAR JUDGE tpl/-