Kerala High Court
Amina vs Asokan
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY,THE 2ND DAY OF MARCH 2017/11TH PHALGUNA, 1938
RSA.No. 305 of 2011 ( C)
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AGAINST THE JUDGMENT AND DECREE IN AS 245/2009 of ADDITIONAL DISTRICT COURT,
NORTH PARAVUR
AGAINST THE JUDGMENT AND DECREE DATED 14-10-2009 IN OS 523/2007 of MUNSIFF
COURT,ALUVA
APPELLANTS/APPELLANTS/PLAINTIFFS NO.1 TO 6 & 8:
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1. AMINA, AGED 68 YEARS,
W/O MADATHALTH KUNJU MUHAMMED,
NEDUVANNOOR KARA, CHENGAMANADU VILLAGE (DIED).
2. UNNI, AGED 58 YEARS,
S/O MADATHALTH KUNJU MUHAMMED,
NEDUVANNOOR KARA, CHENGAMANADU VILLAGE.
3. ABDU, AGED 55 YEARS,
S/O MADATHALTH KUNJU MUHAMMED,
NEDUVANNOOR KARA, CHENGAMANAD VILLAGE.
4. HYDROSE, AGED 53 YEARS,
S/O MADATHALTH KUNJU MUHAMMED,
NEDUVANNOOR KARA, CHENGAMANAD VILLAGE.
5. ABDUL SALAM, AGED 43 YEARS,
S/O MADATHALTH KUNJU MUHAMMED,
NEDUVANNOOR KARA, CHENGAMANAD VILLAGE.
6. ABDUL RAHIM, AGED 38 YEARS,
S/O MADATHALTH KUNJU MUHAMMED,
NEDUVANNOOR KARA, CHENGAMANAD VILLAGE.
7. JAMEELA, D/O AMINA,
MADATHALTH, NEDUVANNOOR KARA,
CHENGAMANAD VILLAGE.
BY ADVS.SRI.K.P.SREEKUMAR
SRI.PAUL K.VARGHESE
RESPONDENTS/RESPONDENTS/DEFENDANTS/7TH APPELLANT:
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1. ASOKAN, AGED 43 YEARS,
S/O KADUNGAPURATH KUNJAPPAN,
NEDUVANNOOR KARA, PO CHANGAMANAD VILLAGE. 680501
2. ABU, AGED 53 YEARS,
KIZHILAKATHOOTTU VEEDU, NEDUVANNOOR KARA,
PO CHENGAMANADU VILLAGE.
3. SAHEER, S/O AMINA,
MADETHALTH, NEDUVANNOOR KARA,
CHANGAMANADU VILLAGE. 680 501
R1 BY ADVS. SRI.B.JAYASANKAR
SRI.K.SREESAKUMAR
R3 BY ADV. SRI.M.P.JOSEPH TIJO
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
02-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
B. KEMAL PASHA, J.
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R.S.A. No.305 of 2011 C
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Dated this the 2nd day of March, 2017
J U D G M E N T
~ ~ ~ ~ ~ ~ ~ ~ ~ Challenging the concurrent findings entered by the Munsiff's Court, Aluva in O.S. No.523/2007 followed by those of the Additional District Court, North Paravur in A.S. No.245/2009, plaintiffs in the suit has come up in Second Appeal.
2. The suit is one for perpetual injunction restraining the defendants and their men from entering into plaint B schedule property, from taking vehicles through plaint B schedule property, and from doing anything to harm the title and enjoyment of the plaintiffs over the plaint B schedule RSA.305/2011 : 2 : property. The case of the plaintiffs is that plaint A schedule property belongs to the plaintiffs, which devolved on them through intestate succession on account of the death of the husband of the 1st plaintiff, and the father of the other plaintiffs. According to the plaintiffs, the plaint A schedule property originally devolved on late Kunju Muhammed through Ext.A1 document of the year 1958. It is the claim of the plaintiffs that there was a pathway, which belong to Kunju Muhammed having a width of 1= kols lying east west. Thereafter, through Ext.A2 sale deed No.4906/1979, Kunju Muhammed purchased a portion of the property having a length of 11 dhandu and having a width of 8= feet. The plaintiffs have scheduled B schedule in the plaint as the said portion purchased through Ext.A2 as well as the earlier pathway mentioned in Ext.A1. According to the plaintiffs, the defendants attempted to take vehicles through the plaint B schedule property on 21.11.2007, and hence the suit.
3. The 1st defendant alone contested the suit by RSA.305/2011 : 3 : filing a written statement. It has been contended that plaint B schedule is one obtained by way of easement by grant to the 1st defendant and his predecessors-in-interest of his property. Over and above it, through dedication, the property owners on either side of the pathway gave properties for increasing the width of the pathway, whereby its width has been increased to 10 feet. According to the 1st defendant, he is not a party to Ext.A2 document and, therefore, the said document is not binding on him. If at all Ext.A2 is found to be genuine, the same also forms part of the pathway and the same was being used by the 1st defendant and his predecessors-in-interest, from the date of execution of Ext.A2 onwards. It has also been contended that the 1st defendant has right to take vehicles through the plaint B schedule property and the plaintiffs have no manner of right to obstruct the same.
4. On the side of the plaintiffs, the 2nd plaintiff was examined as PW1, and Exts.A1 and A2 were marked. None RSA.305/2011 : 4 : of the defendants has cared to mount the Box. At the same time, Exts.B1 to B4 were marked. Ext.C1 series and Ext.C2 series were also marked. The trial court found that the plaint B schedule property is lying as a pathway and, therefore, a decree of perpetual injunction as sought for cannot be granted. The suit was dismissed. Aggrieved by the dismissal, the plaintiffs as appellants preferred A.S. No.245/2009. The lower appellate court, without much discussions, concurred with the findings entered by the trial court and dismissed the appeal.
5. This Court admitted the Second Appeal on the following substantial questions of law:-
"(i) Is the court below right in law in refusing relief to the appellants for the reason that the plea of grant has not been properly pleaded or proved by the defendants?
(ii) What is the effect of non-examination of any of the defendants in a case where the onus to prove the nature of grant is on the defendants? Shall not the court draw adverse RSA.305/2011 : 5 : inference against the defendants in view of the decision reported in AIR 1999 SC 1441 and as per Sec.144 of the Evidence Act?
(iii) Are the courts below right in law in refusing relief to the appellants especially in view of the fact that the property in dispute has been properly identified as per title deeds of the appellants and the defendants has omitted to prove their plea of grant as well as public way in their favour?
(iv) Are the courts below committed grave error in not considering as to whether the plea of grant is in favour of an individual and the plea of public road will co-exist?
(v) Are the courts below justified in dismissing the suit without considering the evidences and pleadings of the appellants?
(vi) Whether the courts below are justified in dismissing the suit holding that the plaint B schedule is a public way without any oral or documentary evidence?
(vii) Whether the courts below are justified in acting upon Exts.B1 to B4 documents merely because the same were marked, when the marking and proving of documents are entirely RSA.305/2011 : 6 : different?
(viii) Whether on the pleadings and documents alone the defendants have made out a case to deny the valid claim of the plaintiff?
(ix) Whether the courts below are justified in entering a finding that the plaint B schedule property belongs to the plaintiffs is a public pathway in the absence of surrender, assignment or sale by the appellants or their predecessor?"
6. Heard learned counsel for the appellants and the learned counsel for the 1st respondent.
7. Learned counsel for the appellants has pointed out that the trial court as well as the lower appellate court have not appreciated the evidence and the documents and thereby, both the courts below have simply thrown out the genuine suit filed by the plaintiffs. It has also been argued that there is no denial of the title or the possession of the plaintiffs over the plaint B schedule property. It has also been pointed out that even though evasive denials and false claims have been forwarded in the written statement of the RSA.305/2011 : 7 : 1st defendant, the 1st defendant has not cared to mount the Box.
8. The suit is one for injunction simplicitor. It is true that the plaintiffs have claimed a decree of perpetual injunction over plaint B schedule property as a whole. Plaint B schedule property involves two portions. The first portion was earlier being used as a pathway. According to the plaintiffs, the said pathway was set up through Ext.A1 in the year 1958 for the use of Kunju Muhammed, who was the predecessor-in-interest of the plaintiffs in respect of plaint A schedule property. The said pathway was having a width of 1= kols south north and the said pathway was lying east west, which leads to the thodu. It is true that in Ext.A1 gift deed, it was mentioned in the schedule relating to plaint A schedule property in Ext.A1 that the said property is situated at the northern side of the pathway having a width of 1= kols and that the said pathway is leading to the thodu. Apart from that, there is no recital in Ext.A1, which shows that the RSA.305/2011 : 8 : said pathway was allotted by the donors to any of the donees. Therefore, the donees or persons claiming under them cannot forward a claim that the said pathway was set apart by way of an easement by grant through Ext.A1. They can only claim the right of user over such a pathway. At present, no evidence is available to show as to whether the said portion having 1= kols width is a private pathway or a public pathway. When the existence of such a pathway was acknowledged in Ext.A1, it has to be taken note of that the said portion was a public pathway. Otherwise, the same would have been clearly mentioned in Ext.A1.
9. Regarding plaint B schedule item, it can be seen that the other portion in plaint B schedule was one purchased by the predecessor-in-interest of the plaintiffs through Ext.A2, from the third donee in Ext.A1 and his wife for enabling the plaintiffs to take lorries into plaint A schedule property. It has also been clearly mentioned in Ext.A2 that the purchase of the said portion having a length RSA.305/2011 : 9 : of 11 dhandu east west and 8= feet width north south is for the purpose of joining that portion also to the then existing pathway having a width of 1= kols. It is true that thereafter the plaintiffs have transformed the said portion also as one lying contiguously with the then existing 1= kols width pathway. In Ext.A2, the vendors have also reserved their right to make use of the said property as a pathway for them also.
10. The validity of Ext.A2 has not been denied in the written statement of the 1st defendant. The other defendant has not cared to file any written statement. According to the 1st defendant, when the said portion purchased by the plaintiffs through Ext.A2 was also transformed as portions of the earlier pathway, which was in existence, the 1st defendant has also the right to make use of that portion covered by Ext.A2 for taking vehicles to his property. The question to be decided is whether the portion of plaint B schedule property purchased by the plaintiffs through Ext.A2 RSA.305/2011 : 10 : has to be regarded as a private pathway or public pathway. The 1st defendant has no case that the said portion covered by Ext.A2 was lying as a pathway prior to the execution of Ext.A2. The admitted case of the 1st defendant is that after the purchase of the property through Ext.A2 by the plaintiffs, the 1st defendant has also been making use of the said portion for having access to his property. When the title of the plaintiffs over that portion of plaint B schedule item covered by Ext.A2 is not denied, there is no reason to disbelieve the recitals in Ext.A2. It has to be considered that through Ext.A2, the plaintiffs have derived title over a portion of plaint B schedule item and the said portion was purchased by the plaintiffs for enabling them as well as the vendees to Ext.A2 to take vehicles into their properties.
11. The next question to be considered is whether that portion of plaint B schedule covered by Ext.A2 is identifiable or not. It is trite law that a decree of perpetual injunction can be passed only in respect of a property which RSA.305/2011 : 11 : is identifiable. It is true that a decree of perpetual injunction cannot be granted for plaint B schedule as a whole when it takes in the then existing pathway having a width of 1= kols also. At the same time, the plaintiffs are entitled to have a decree of perpetual injunction in respect of the portion of plaint B schedule property covered by Ext.A2. The plaintiffs have taken out a second Commission also. The second Advocate Commissioner was accompanied by a Surveyor. The second Advocate Commissioner filed Ext.C2 report and Ext.C2(a) plan prepared by the Surveyor. Ext.C2(a) plan shows the entire measurements of all the properties. In Ext.C2(a) plan, the blue shaded portion is the property covered by Ext.A2. The same has been separately demarcated in Ext.C2(a) plan. Therefore, it cannot be said that presently, the said portion is not identifiable. Of course, even though the plaintiffs are not entitled to have a decree of perpetual injunction in respect of the plaint B schedule property as a whole, they are entitled to a decree of RSA.305/2011 : 12 : perpetual injunction in respect of the property covered by Ext.A2, which is shown as the blue shaded portion in Ext.C2
(a) plan. The courts below ought to have moulded such a relief and granted such a relief to the plaintiffs and instead of that, both the courts below have chosen to non suit the plaintiffs, which could be an easy course.
12. From the discussions made above, this Court is satisfied that a decree of perpetual injunction as prayed for in the plaint can be passed in favour of the plaintiffs in respect of the blue shaded portion in Ext.C2(a) plan, which is covered by Ext.A2 sale deed. It is made clear that the plaintiffs are not entitled to a decree of perpetual injunction as far as the red shaded portion, which is shown lying south to the aforesaid blue shaded portion in Ext.C2(a).
In the result, this Regular Second Appeal is allowed and the judgments and decrees passed by both the courts below are set aside. The suit is decreed as above and a decree of perpetual injunction is granted as prayed for in RSA.305/2011 : 13 : respect of the blue shaded portion shown in Ext.C2(a), which is covered by Ext.A2 sale deed. Ext.C2(a) shall form part of the decree. In the nature of this appeal, the parties shall bear their respective costs. All pending interlocutory applications in this appeal are closed.
Sd/-
(B.KEMAL PASHA, JUDGE) aks/02/03 // True Copy // PA to Judge