IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 RSA.No. 287 of 2008() --------------------- AS.86/2005 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.282/1996 of MUNSIFF COURT,KAYAMKULAM .................... APPELLANT/APPELLANT/PLAINTIFF ---------------------------------------------- SADANANDAN S/O.KUNJAPANICKEN, PANAYIL, NAMBARUVILAKAM MURI, KARUNAGAPPALLY VILLAGE. BY ADV. SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN RESPONDENTS/ RESPONDENTS/DEFENDANTS ----------------------------------- 1. RAJAMMA W/O.LATE KARUNAKARAN ULLAS BHAANATHIL, CHIRAKKADAVUM MURI, KAYAMKULAM VILLAGE 2. K. SANTHOSH S/O.LATE KARUNAKARAN. 3. K.ULLAS, S/O.LATE KARUNAKARAN. 4. LISSA D/O.RAJAMMA. BY ADV.S.JAMES VINCENT (CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.716/08 & 717/08 IN RSA 287/08 DISMISSED 19/3/2008 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ R.S.A .NO. 287 OF 2008 ------------------------------------------ Dated 19th March 2008 J U D G M E N T Plaintiff in O.S.282/1996 on the file of Munsiff court, Kayamkulam is the appellant. Respondents are defendants. Appellant instituted the suit for permanent prohibitory injunction restraining respondents from causing any obstruction to plaint C schedule way to plaint B schedule property. Plaint C schedule way is through plaint A schedule property belonging to respondents. Both plaint X and B schedule properties were admittedly owned by the same person and divided under Ext.A4 partition deed of 1120 M.E. Plaint A schedule property was allotted to the respondents under Ext.A4 partition deed. Appellant purchased plaint B schedule property from an assignee of the sharer to whom it was allotted under Ext.A4. Appellant contended that as per Ext.A4 partition deed plaint C schedule way was provided. Case of the appellant is that the way provided to plaint B schedule property is through plaint A schedule RSA 287/08 2 property and that way is plaint C schedule way which runs through the middle of plaint A schedule property and having a width of 8 feet. Contending that respondents are not entitled to cause any obstruction, suit was filed for injunction. Respondents resisted the suit contending that there is no way available to plaint B schedule property through plaint A schedule property and plaint C schedule property is not a way and Ext.A4 does not provide such a way and as no way exists, appellant is not entitled to the decree sought for. 2. Learned Munsiff on the evidence of Pws.1 and 2, DW1, Exts.A1 to A7, B1 to B4, dismissed the suit holding that appellant failed to establish the existence of plaint C schedule way or a right of way through plaint A schedule property as provided under Ext.A4. Appellant challenged the judgment before Additional District court, Mavelikkara in A.S.86/2005. Before the first appellate court appellant took out a commission and the commissioner submitted a report. Learned Additional District Judge on re-appreciation of evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant and RSA 287/08 3 learned counsel who appeared for the respondents by lodging a caveat were heard. 4. Argument of the learned counsel appearing for the appellant is that when Ext.A1 provides a way, courts below were not justified in dismissing the suit and Ext.A1 provides a right of way by express grant. Learned counsel also argued that though appellant did not take out a commission before the trial court, a commission was taken out before the first appellate court and that report establish that there is no other way available to the plaint B schedule property except through plaint A schedule property and courts below should have granted a decree as sought for and dismissal of the suit is not at all sustainable. Learned counsel appearing for respondents argued that even though respondents specifically contended in the written statement that there is no way available to plaint B schedule property through plaint A schedule property and plaint C schedule property is not a way provided under Ext.A4, appellant did not take out a commission before the trial court to establish the existence of plaint C schedule way on the date of institution of the suit. It was argued that Ext.B4 report submitted by DW1, the commissioner in O.S.172/1976 RSA 287/08 4 establish that no way much less plaint C schedule way existed and appellant is not entitled to the decree for injunction sought for and dismissal of the suit is perfectly correct. 5. On hearing the learned counsel for both parties I do not find any substantial question of law involved in the appeal. Suit is only for injunction simplicitor and not for any declaration of right of way. True, if appellant is having a right of way available to plaint B schedule property through plaint A schedule property and respondents are causing obstruction to the way, even without seeking a decree for declaration, appellant is entitled to a decree for injunction restraining respondents from causing obstruction to the way. But if no way was available on the date of institution of the suit, a suit for mere injunction is not sustainable. Hence the crucial question is whether plaint C schedule way, through Plaint A schedule property was existing on the date of filing of the suit. 6. What was contended by the appellant was that plaint C schedule way is the way provided under Ext.A4 and appellant has a right of easement by grant over plaint C schedule way. If in fact, a way as claimed by the RSA 287/08 5 appellant was existing on the date of institution of the suit, appellant should have taken out a commission along with the institution of the suit to establish the existence of the alleged way. Even if appellant did not take out a commission on institution of the suit, when respondents specifically contended that no way exists through plaint A schedule property, it was incumbent upon the appellant to take out a commission and establish that a way as claimed by the appellant, namely plaint C schedule way, existed. Though learned counsel appearing for appellant argued that appellant did not take out a commission, because if the commissioner inspected the property at the time of institution of the suit he could not have identified the way because of the debris of the demolished building in the plaint A schedule property and DW1 the commissioner appointed in another suit when examined deposed that debris of the demolished building was scattered in the property. Even if it is taken that debris was scattered around the property, it is not impossible for a commissioner to identify the way, if in fact a way existed. Debris could be removed and existence of the way could have been found out. The very fact that appellant did not take out a commission from the trial RSA 287/08 6 court is a strong circumstance indicating that if the commissioner had gone to the plaint A schedule property, immediately on institution of the suit, he could not have found out the alleged way claimed by the appellant. Respondents have produced Ext.B4 report of the commissioner submitted in O.S.172/1996 and examined the commissioner as DW1. Courts below relying on that evidence found that no way existed in the plaint A schedule property at the time of institution of the suit. Argument of the learned counsel is that DW1 could not identify the way because of the debris scattered in the property and that does not mean that way was not existing. On the evidence I cannot agree. 7. On going through the judgments of the courts below, I cannot agree with the argument of the learned counsel appearing for the appellant that factual finding entered by the courts below was either perverse or was not in accordance with the evidence. When appellant is claiming a right of way and that too as provided under Ext.A4, it is upto the appellant to identify the property covered thereunder and establish the way provided under Ext.A4. What is provided under Ext.A4 is not any particular way. It only provides that sharers are RSA 287/08 7 entitled to use the existing way. Therefore, Ext.A4 does not create any new way but enable the sharers to use the existing way. There is no acceptable evidence to hold that they way provided under Ext.A4 is the plaint C schedule way. Evidence establish that no way through plaint A schedule property much less plaint C schedule way exists. In such circumstances, courts below rightly found that appellant is not entitled to a decree for injunction and dismissed the suit. 8. Learned counsel appearing for appellant submitted that as there is no other way available to plaint B schedule property, appellant is entitled to get a right of way by easement by necessity. That question is to be considered only in a properly instituted suit for declaration of that right. As that question is not decided in this case dismissal of the suit will not prevent the appellant from instituting a suit for declaration of right of way, if it is available to him. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR, JUDGE. uj.