Kerala High Court
Unknown vs The Honourable Mr.Justice ... on 18 August, 2014
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
MONDAY, THE 18TH DAY OF AUGUST 2014/27TH SRAVANA, 1936
RSA.No. 901 of 2013 ()
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I.A. NO.1520/2012 IN A.S. NO.151/2012 OF DISTRICT COURT, KOLLAM.
OS. NO.664/2009 OF ADDITIONAL MUNSIFF COURT, KOLLAM.
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APPELLANTS/APPELLANTS IN A.S.NO.151/2012/
DEFENDANTS IN O.S.NO.664/2009.:
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1. NISAM, S/O.MUHAMMED KUNJU, AGED 41 YEARS,
RESIDING AT VALIYA MAMOOTTIL VEEDU, THATTAMALA P.O.,
MAYYANAD VILLAGE, KOLLAM-691 020.
2. JALEENA, D/O.JALALUDEEN, AGED 33 YEARS,
RESIDING AT VALIYA MAMOOTTIL VEEDU,
THATTAMALA P.O., MAYYANAD VILLAGE, KOLLAM-691 020.
BY ADVS.SRI.P.GOPAKUMARAN NAIR,
SRI.C.S.DIAS,
SRI.N.K.SUBRAMANIAN.
RESPONDENT/RESPONDENT IN A.S.NO.151/2012/PLAINTIFF IN O.S.NO.664/2009.:
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SREEDEVI, D/O.VIJAYANANDAN NAIR, AGED 41 YEARS,
NOW RESIDING AT PLAVILA VEEDU (UTHIRATHU),
MANGALATHU NAGAR 81, KILIKOLLOOR P.O.,
PUNTHALATHAZHOM, KOLLAM-691 004-
FROM PADAVILATHU, PEEDIKA VEEDU,
PINACKALCHERRY, MAYYANADU VILLAGE.
BY SRI.S. SREEKUMAR, SENIOR ADVOCATE.
ADVS. SRI.P.PRIJITH,
SRI.A. JANI.
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 18-08-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
rs.
P. BHAVADASAN, J.
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R.S.A. No. 901 of 2013
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Dated this the 18th day of August, 2014.
JUDGMENT
This appeal is by the defendants in O.S. 664 of 2009 on the file of Additional Munsiff's Court, Kollam, who suffered a decree at the hands of the trial court. Their appeal was dismissed since the delay condonation petition was dismissed.
2. The dispute relates to the existence and use of a pathway shown as plaint B schedule passing through the northern side of the plaint A schedule property covered by document No.44/89. B schedule pathway was shown as the southern portion of 49 cents that is shown in the plan attached with the document of title of the respective parties. The plaintiff had obtained possession of the plaint schedule property as per the decree in O.S. 748 of 1996.
3. The defendants resisted the suit and contended that the plaintiff is not entitled to any relief. RSA.901/2013.
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4. On the basis of the above pleadings, issues were raised and the parties went to trial. The evidence consists of the testimony of P.W.1 and documents marked as Exts. A1 to A4 from the side of the plaintiff. The defendants had D.W.1 examined and Ext. B1 marked. Exts. C1 and C1(a) are the commission report and plan.
5. After evaluation of the evidence, the trial court passed a decree in the following terms:
"In the result, it is ordered and decreed that let the plaint A schedule property as mentioned in Ext.C1(a) plan be recovered from the defendants and the same be delivered to the possession of the plaintiff. Let the defendants be directed to make useful the plaint B schedule pathway through the northern side of B (A), C and E schedules of the document No.44/89 in a width of 140 cms. From the road to the A schedule. Regarding prayer for mesne profits, the suit stands dismissed. ....."
6. The aggrieved defendants carried the matter in appeal as A.S. 151 of 2012. As the appeal was filed out of RSA.901/2013.
3time, they filed I.A. No. 1520 of 2012 to condone the delay. That petition was dismissed and consequently the appeal was also dismissed.
7. Learned counsel appearing for the appellants contended that the trial court was not justified in granting a decree in favour of the plaintiff especially when there is nothing to show that the pathway exists as claimed by the plaintiff. It is further contended that the lower appellate court has grossly erred in dismissing the delay condonation petition when sufficient cause has been shown to condone the delay. At any rate, the defendants were entitled to have their appeal heard on merits.
8. The learned counsel contended that the lower appellate court ought to have condoned the delay and heard the appeal on merits in view of the fact that there was an obvious error in the decree granted by the trial court. According to him, the relief claimed in the plaint is with regard RSA.901/2013.
4to 4 links pathway, whereas the trial court has granted a decree to restore a pathway having 140 cms. width, relief being granted far in excess than what was prayed for in the plaint.
9. Learned counsel appearing for the respondent on the other hand pointed out that the lower appellate court was justified in dismissing the delay condonation petition in the light of the fact that no sufficient cause has been shown to condone the delay. Further, the trial court has found that there does exist a way and the plaintiff is entitled to use the same.
10. Learned counsel for the respondent had to admit this Court that all that is claimed in the plaint is 4 links width pathway.
11. The existence of the pathway and the right of the plaintiff to use the same have been found by the trial court and on going through the records and on hearing the parties, RSA.901/2013.
5this Court finds no ground to interfere with the said findings on fact.
12. The controversy therefore in this appeal narrows down to the width of the pathway in respect of which decree was granted by the trial court.
13. Obviously in the plaint the width of the pathway is shown as 4 links. On the basis of the commission report the decree was granted. However, the court below has granted a decree directing restoration of the pathway having a width of 140 cms. It is not possible to understand how a decree could be passed for a pathway having more than 4 links width when the claim was limited to a 4 links wide pathway. Relief more than what was sought for could not have been granted by the trial court.
Hence, the decree granting pathway having a width of 140 cms. is set aside and it is directed that a pathway having a width as claimed in the plaint alone is available to the RSA.901/2013.
6plaintiff. The alignment of the pathway with a width of 4 links will be determined in execution in terms of the deed relied on by the plaintiff and in the light of the commission report accepted by the trial court except for the width of the pathway.
P. BHAVADASAN, JUDGE sb.