IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 RSA.No. 343 of 2011 --------------------------------- AS.309/2003 of SUB COURT, NEYYATTINKARA OS.435/2002 of II ADDL.M.C., NEYYATTINKARA .................... APPELLANT/APPELLANT/DEFENDANT: K.RAJAN, AGED 48, S/O. KRISHNAN NADAR, KILIMANVILA PUTHEN VEEDU, MACHEL, MACHEL P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP SRI.VIJULAL RESPONDENTS/RESPONDENTS/PLAINTIFF: 1. A.THOMAS, S/O. ALBERT, CHALOORMELE PUTHEN VEEDU, MACHEL, MURUKIL VILLAGE, THIRUVANANTHAPURAM-695 571. 2. SAJI KUMAR, S/O. SAHADEVAN, MACHEL PLAVILA VEEDU, MARUKIL DESOM, MALAYINKEEZHU-695 571. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- R.S.A.No.343 of 2011 --------------------------------------- JUDGMENT Defendant in O.S.No.435/2002 on the file of II Additional Munsiff Court, Neyyattinkara is the appellant. First respondent is the plaintiff. The suit was instituted seeking a decree for permanent prohibitory injunction restraining the appellant from trespassing into the plaint schedule property contending that though the way available to the property of the appellant is a four feet width way to the north of the property of the first respondent, appellant attempted to trespass into the plaint schedule property and cut open a way having a width of four feet and he has no right to do so and therefore, appellant is to be restrained from trespassing into the plaint schedule property. Appellant filed a written statement contending that he has a right of easement by grant through the southern side of the plaint schedule property and that way is having a width of four feet and attempt of the first respondent is to close down that pathway and he is not entitled to close that way. Appellant also sought a decree, by preferring a counter claim, restraining the RSA 343/2011 2 first respondent from closing down the pathway having a width of four feet. 2. Learned Munsiff, on the evidence of PWs 1 to 3, DWs 1 and 2 and Exhibits A1 to A4, B1 and C1 to C2(a), dismissed the suit and allowed the counter claim partly and restrained first respondent from obstructing or closing down the pathway lying on the south of the plaint schedule property, as shown by the Commissioner in Exhibit C1(a) plan, which is having a width of only 70 cm. Appellant challenged the judgment before Sub Court, Neyyattinkara in A.S.No.309/2003 contending that learned Munsiff should have granted a decree for injunction in respect of a four feet width way and should not have restricted the width to 70 cm, as demarcated by the Commissioner. Learned Sub Judge, on re-appreciation of evidence, found that report of the Commissioner with Exhibit C1(a) plan show that at the starting point of the plaint schedule property, the width of the way was only 70 cm. and therefore, appellant is entitled to a decree for injunction in the counter claim only in respect of the said way. The appeal was dismissed. It is challenged in the second appeal. RSA 343/2011 3 3. Learned counsel appearing for the appellant was heard. 4. Argument of the learned counsel is that in the plaint itself, first respondent admitted that appellant has a right of way having a width of four feet and report of the Commissioner shows that at the starting point of the way, the width is four feet and therefore, when it is found that first respondent has a right of easement by grant, the right should not have been restricted to 70 cm, as has been done by the courts below. Learned counsel argued that in view of Section 27 of Indian Easement Act, it should have been found that respondent, the survient owner, is not entitled to reduce the width of the pathway, which is available to the appellant, namely, a pathway having four feet width. 5. First respondent instituted the suit seeking a decree for injunction alleging that appellant attempted to cut open a pathway through the southern boundary of his property and he has no right to do so. A commission was taken out and the Commissioner submitted Exhibit C1 report and C1(a) plan. Subsequently, the same Commissioner submitted Exhibit C2 report and C2(a) plan. Though first respondent denied existence RSA 343/2011 4 of the way, learned Munsiff, on the evidence, found that appellant has a right of easement over the way which runs through the plaint schedule property. First respondent did not challenge that finding of the trial court by filing an appeal. Appellant alone filed a first appeal challenging the decree granted in the counter claim restricting the width of the way to 70 cm contending that it should have been four feet. The way provided under Exhibit B1 is the way claimed by the appellant. It is not disputed that though a way is provided under Exhibit B1, width of the way is not shown. Therefore, as the counter claim is only one for injunction, appellant is entitled to get a decree for injunction only in respect of the way which was available at the time of institution of the suit. Exhibit C2(a) plan submitted by the Commissioner shows that plot ABCDEFGH is the plaint schedule property. On that aspect, there is no dispute. Commissioner also reported that when he inspected the property and submitted Exhibit C1 report and C1(a) plan, the way, which starts from the eastern public way and runs towards the west and reaches the plaint schedule property, was having only a width up to ABGH, as shown in Exhibit C1(a) plan. Its width is only 70 cm. RSA 343/2011 5 Commissioner reported that when he inspected the property for the second time, for the purpose of submitting a further report, the way was found widened, including the plot BCFG, with the original way ABGH. The newly added pathway is also having a width of 70 cm. The question is, when the suit was instituted the available way was having only a width of 70 cm., whether appellant is entitled to a decree for injunction in respect of the way, having a width of four feet. As found by the first appellate court, appellant is not entitled to such a decree. Though learned counsel argued that under Section 27 of Indian Easement Act, the width of the way cannot be reduced, Section 27 has no application in this case. Section 27 would apply only in a case where the width of the way, which is available to the appellant, was established and there was any attempt to restrict the width of that way by the survient owner. As stated earlier, Exhibit B1 does not show the width of the way. There is no other evidence to prove that first respondent had a right of way, having a width of four feet. Admission in the plaint that appellant is having a right of way, having a width of four feet, towards the north of his property cannot be taken as an admission of existence of a way RSA 343/2011 6 having four feet towards east of the property of the appellant. Hence, no substantial question of law is involved in the appeal. Learned counsel appearing for the appellant submitted that dismissal of the appeal may not be a bar to the appellant to seek a decree for declaration of right of way. Dismissal of the appeal will not be a bar to the appellant to institute a suit for declaration. Appeal is dismissed. 23rd March, 2011 (M.Sasidharan Nambiar, Judge) tkv