Kerala High Court
Thomas Kurian vs Souda Kassim on 7 February, 2013
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
THURSDAY, THE 7TH DAY OF FEBRUARY 2013/18TH MAGHA 1934
FAO.No. 315 of 2007 ( )
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AS.271/2005 of DISTRICT COURT,KOTTAYAM.
OS.88/2003 of ADDL.MUNSIFF COURT, KOTTAYAM.
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APPELLANT/RESPONDENT/DEFENDANT:
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THOMAS KURIAN, S/O KURIAN,
KINNATTUMOOTTIL HOUSE, CHENGALAM VILLAGE
CHENGALAM SOUTH P.O., KOTTAYAM DISTRICT.
BY ADVS.SRI.PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
RESPONDENT(S)/APPELLANTS/PLAINTIFFS:
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1. SOUDA KASSIM, W/O KASSIM RAWTHER,
KOCHUPARAMBIL, KUMMANAM KARA, THIRUVARPPU VILLAGE
NOW RESIDING AT, BLISS VILLA, EDATHINAKAM
CHENGALAM SOUTH P.O., CHENGLAM VILLAGE, KOTTAYAM.
2. MUHAMMED BASHEER, S/O KASSIM RAWTHER,
KOCHUPARAMBIL, KUMMANAM KARA, THIRUVARPPU VILLAGE
NOW RESIDING AT, BLISS VILLA, EDATHINAKAM
CHENGALAM SOUTH P.O., CHENGLAM VILLAGE, KOTTAYAM.
3. KASSIM SHIBI, S/O KASSIM RAWTHER,
KOCHUPARAMBIL, KUMMANAM KARA, THIRUVARPPU VILLAGE
NOW RESIDING AT, BLISS VILLA, EDATHINAKAM
CHENGALAM SOUTH P.O., CHENGLAM VILLAGE, KOTTAYAM.
R1 & 3 BY ADV. SRI.T.MADHU
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON
07-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
tss
S.S.SATHEESACHANDRAN,J.
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F.A.O.No.315 of 2007
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Dated this the 7th day of February,2013
JUDGMENT
Appellant is the defendant in a suit for injunction. Respondents are the plaintiffs. Appeal is directed against the Order of remand passed by learned District Judge, Kottayam in the appeal preferred by the plaintiffs against the dismissal of their suit. Allowing the application to amend the suit for mandatory injunction also, reversing the decree of dismissal the case was remanded. Order of remand passed is unsustainable is the case of the defendant for filing this appeal.
2. Short facts necessary for disposal of the appeal can be summed up thus:- Plaintiffs are admittedly the owners of plaint property which lies to the north of a property belonging F.A.O.315/2007 2 to the defendant. For ingress and egress to the property of the defendant, according to plaintiffs, permission had been accorded to use a pathway through the plaint schedule property having a width of 3 feet. That was only a licence on permission granted by the plaintiffs. However, defendant who purchased a four wheeler recently constructed some culverts beside the pathway widening it to nearly 10 feet and also dumped four loads of sand raising the level of such pathway cutting the plaint schedule property into two halves. Plaintiffs instituted the suit to restrain the defendant from using vehicular traffic through the plaint schedule property or making any construction therein, and also to reclaim the property as before. Defendant resisted the suit raising challenges contradicting one from the other. Disputing the ownership of plaintiffs over the portion of property covered by the road passing through the plaint schedule property he contended that that portion of the F.A.O.315/2007 3 plaint schedule property is continuously used by him openly without obstruction in continuation of the right exercised by his predecessors and such use continues for more than eighty years. Width of the road, according to defendant, is ten ft,. but it has been reduced by plaintiffs to 8 ft. He has a right of way through the road passing in the plaint property as an easement by prescription, and he has been maintaining such road for the last thirty years was his further case to resist the decree of injunction applied for.
3. The trial court on the materials placed by both sides forming conclusions that the pathway existing through the plaint property has a width of 8 feet, that the defendant has crystalised a right of easement by prescription over that pathway by continuous use without obstruction, and, that the interference over the pathway by defendant imputed by plaintiffs had taken before institution of the suit in which no mandatory injunction was F.A.O.315/2007 4 sought for non-suited the plaintiffs. Suit was however dismissed with some directions namely., that the report and plan prepared by Commissioner shall form part of the decree, defendant has to maintain height difference at all time between the road and adjoining plaint schedule property on either sides as noted in the above report and plan of Commissioner and that in the event of the defendant reclaiming plaint schedule property disturbing the width and height difference noted in Ext.C1 report plaintiffs shall have a right to institute a fresh suit. Suit dismissed with directions as aforesaid was challenged in appeal by plaintiffs. In that appeal plaintiff moved an amendment application seeking an additional relief of mandatory injunction for removal of the culvert put up by the defendant beside the pathway. The appeal was allowed and reversing the decree of dismissal the case was remitted with some observations/directions. In fact, entering certain F.A.O.315/2007 5 findings, the case was remitted for fresh disposal, after affording opportunity to the defendant to file written statement to the amended plaint, and, also both sides to lead further evidence in support of their respective case. Against that order of remission passed by the learned District Judge defendant has come up with this appeal.
4. Learned counsel appearing for the defendant contended that dismissal of the suit by the trial court on the facts established and materials produced called for no interference. In fact remission was ordered solely on the belated application moved for amendment of the plaint to seek a mandatory injunction, which, according to counsel, was not entertainable, and that was allowed without taking note that the relief of mandatory injunction, was not available to plaintiffs. Learned District Judge proceeded as if the amendment sought by a decree of mandatory F.A.O.315/2007 6 injunction was for removal of culverts beside the pathway, but, infact, plaintiffs have sought for another direction also of mandatory nature for removal of the loads of sand allegedly dumped in the pathway by defendant. Right of prescriptive easement claimed by defendant over the pathway which was determined as having a width of 8 feet as against the claim of plaintiffs that it has only 3 feet, established by the materials produced had been affirmed by learned District Judge with a specific direction that the finding shall remain undisturbed on remission of the case. When such be the case, dismissal of the suit rendered by the trial court could not have been interfered with, according to counsel, as the entitlement of plaintiffs to seek discretionary and equitable relief of injunction on the allegations raised and case presented by them in the plaint was found to be unworthy of any merit. Over the plaint property defendant has a right of prescriptive F.A.O.315/2007 7 easement of way which has a width of eight feet and that is being used by him for vehicular traffic also, according to counsel, would clearly demonstrate that in exercise of such right of easement he has every right to do all acts necessary to secure the full enjoyment of such easement. A dominant owner who enjoys a right of easement over a way, it is submitted by the counsel, is entitled to do all acts necessary to secure the full enjoyment of easement and such right is insulated under section 22 of the Indian Easements Act. Order of remission passed by the District Judge is therefore liable to be reversed affirming the dismissal of the suit by the trial court, is the further submission of the learned counsel. Per contra learned counsel appearing for respondents/plaintiffs contended that order of remission passed by the lower appellate court allowing the application for amendment of the plaint does not warrant any interference. The acts F.A.O.315/2007 8 done by defendant over the pathway even if he is treated as a dominant owner enjoying easement of right over that pathway can never be considered as lawful acts done in exercise of his rights of easement, but, only illegal acts injuring the rights of servient owners, plaintiffs in the suit. Construction of culverts beside the pathway and also raising the height of pathway dumping sand had cut the plaint property into two halves affecting its peaceful enjoyment by servient owners/plaintiffs and the acts of the defendant interfering with the pathway had taken place immediately prior to the institution of the suit, according to the counsel. Suit was instituted for perpetual injunction alone would not disentitle the plaintiffs to seek for amendment of the plaint to have a decree of mandatory injunction for removal of the culverts and also the loads of sand dumped over the pathway by the defendant, is the further submission of the counsel. No prejudice F.A.O.315/2007 9 or hardship is caused to the defendant by the amendment allowed and remitting case for fresh disposal after affording him an opportunity to file additional written statement. Appeal filed by defendant against the order of remission passed by the learned District Judge, it is contended, has no merit, and is liable to be dismissed.
5. Going through the judgment rendered by the learned Munsiff who dismissed the suit with some directions and also the order of remission passed in the appeal against such dismissal by the learned District Judge, that too affirming some findings stated to have been entered in the judgment of the trial court, I find both courts have lost sight of the fact that the suit instituted by plaintiffs was one for a decree of perpetual prohibitory injunction alone. Strangely, learned Munsiff dismissed the suit with some directions. Issues (1) and (2) raised by the trial court are thus:-
(1) whether plaintiffs have any cause of action F.A.O.315/2007 10 against the defendant? (2) Whether the plaintiffs are entitled to a decree for permanent prohibitory injunction as sought? After having a discussion on issue No.1 and 2 together, on the materials placed, and conclusion formed the learned Munsiff has issued some directions while dismissing the suit.
The aforesaid issues are answered thus:-
"In the above backdrop of facts and evidence the defendants are directed to maintain the height difference at all time between the disputed pathway and the adjoining plaint schedule property on either sides as reported in C1 report and C1(a) plan. C1 report and C1(a) plan shall form part of this decree. The defendant denied any such intention on their part and since it is true that such an attempt was not made till date, I find that the relief sought by the plaintiff is premature. A decree cannot be as a luxury to any person. However, if the defendants reclaim the plaint schedule property in such a way so as F.A.O.315/2007 11 to disturb the width and height difference noted in C1 report, the plaintiffs right to file a suit against the defendant is reserved.
These issues are answered
accordingly."
If the suit was premature and plaintiffs have no entitlement to get the decree of injunction, then, the plaintiffs should have been non-suited for that reason, and no direction as indicated above could have been given. Even otherwise in a suit dismissed, whatever adverse findings rendered or directions issued against the defendant would serve no purpose. The decree of dismissal with adverse directions or findings will not entitle the defendant to challenge such findings/directions in appeal except under special circumstances as he could not be treated as aggrieved where the suit claim of the plaintiffs had been negatived and they are nonsuited. There is no executable decree on dismissal of a suit, and in such a decree F.A.O.315/2007 12 directions given including those for appending Ext.C1 and C1(a) plan of the Commissioner is not only irregular but perverse. Suit being one for perpetual injunction, its dismissal in no way will affect the plaintiffs from seeking relief on title over the property instituting a fresh suit. A fresh suit for injunction may also be available to plaintiffs on a subsequent cause of action over interference with their possession and enjoyment of the suit property which, admittedly, is owned and possessed by them. So much so directions issued by learned Munsiff while dismissing the suit as indicated above were not only warranted, but, have no value or merit at all. Whatever that be, ignoring the nature of suit and also the issues that arose for consideration which have been stated supra, learned District Judge in the judgment rendered in the appeal has entered certain findings as if the defendant has established his right of prescriptive easement F.A.O.315/2007 13 claimed over a pathway running through the plaint property with direction that on remission that finding shall remain undisturbed. Operative portion of the judgment rendered by the District Judge reads thus:-
"The finding of the learned lower court that the respondent has exercised the right of way by way of easement by prescription through the plaint schedule property is upheld. But the suit is remanded to the lower court to consider the other question namely whether the plaintiff is entitled to the injunctions claimed. That question is to be considered in the light of the observation in paragraph 12 F.A.O.315/2007 14 of the judgment. The learned Munsiff shall also allow the appellant to carry out the amendment in the plaint and after obtaining the additional written statement if any from the respondent and collecting further evidence if any, the suit is to be decided afresh."
6. The defendant had raised divergent and contradictory defences, one destroying the other, that the plaintiffs are not the owners of the property and then, their entitlement for a right of prescriptive easement over a pathway having a width of 10 feet running through the plaint schedule property. He has not raised any counterclaim to sustain the claim of prescriptive easement which was one among the two contentions. What are the issues raised in the suit by the F.A.O.315/2007 15 Munsiff have been stated supra. So much so,any observation made by learned Munsiff with respect to the right of easement claimed by defendant over the pathway running through the property or its width cannot be considered as a conclusive finding over such claim, which was never raised as an issue in the suit, but, only a challenge putforth to resist the entitlement of plaintiffs to get the equitable relief canvassed by them in the suit. Right of easement claimed by defendant to resist the suit claim of injunction if so found tenable and acceptable on the materials placed at best can only form acceptance of a defence projected, and in a suit of this nature where no counterclaim for declaration of right of easement is claimed by plaintiffs, no conclusive finding on the right so claimed can be entered by the court when on the pleadings of the parties no issue thereof was raised for adjudication. Even an incohate right, which has not matured into a full right for use of F.A.O.315/2007 16 the pathway by defendant if established would be sufficient to non-suit the plaintiffs when their suit is only for injunction. In such a suit entitlement of plaintiffs to the equitable relief thereof depends on the question whether there has been an invasion or threatening to plaintiffs' right to or enjoyment of their property by the act or deed of the defendant against whom the injunction is sought for. Where the defendant shows that he has a legal right to enjoy any portion of the plaint property whatever be restrictive right of such enjoyment he need not further show his entitlement for declaration of such right in that suit to resist the injunction applied for. So whatever observations made by learned Munsiff with respect to the right of easement by prescription claimed by defendant over the pathway can only be considered as having been made with respect to the acceptance of the defence presented by him and not of a finding as if the F.A.O.315/2007 17 defendant has a right of prescriptive easement over any portion of the suit property. Whether he has a right of prescriptive easement would arise for consideration only on raising an issue thereof and its determination by the court. Otherwise the claim of easement made by defendant can be appreciated only as a defence to resist the suit claim. On materials placed tentative opinion over acceptance of that defence alone is called for especially where the suit is filed for injunction alone.
7. Learned Munsiff had issued directions to treat Ext.C1 report and C1(a) plan as part of the decree while dismissing the suit, after holding that the pathway running through plaint property has a width of 8 feet which is not the width described by the plaintiffs or defendant.The rough sketch prepared by the Commissioner,Ext.C1((a)would have no relevance in identifying or determining the pathway if that become essential at a later stage. F.A.O.315/2007 18 Commissioner conducted inspection soon after the institution of the suit. Features noticed by him at the site were reported by him in Ext.C1 report. Even the description of pathway stated by him in that report which are quoted in the judgment of the Munsiff would serve no purpose for its identification. Identification of pathway in relation to the rest of the plaint property and preparing of plan by a surveyor after measurement of the property would be absolutely essential where parties have disputes regarding width, and also height from the rest of the plaint property lying on its two sides on account of alleged dumping of soil by the defendant. I have adverted to the aforesaid aspects only to point out the need for taking out such a Commission to identify the pathway to consider the issues arising for adjudication and also entitlement of plaintiffs for the relief canvassed.
8. So far as the challenge raised against the F.A.O.315/2007 19 order of remission passed in appeal by the learned District Judge, I do not find any merit. Commission report would indicate tampering with pathway took place three days prior to the institution of the suit. Plaintiffs failed to seek a decree of mandatory injunction but only sought for a perpetual injunction and the suit after trial led to its dismissal, cannot be a ground to deny the amendment sought to seek a decree of mandatory injunction. Amendment thereof allowed by the learned District Judge in the given facts of the case is only proper and correct. As rightly contended by learned counsel for plaintiffs no prejudice or hardship has been caused to the defendant by such amendment as his right to file a written statement and resist the claim thereunder leading evidence is still protected and ensured. Plaintiffs are admittedly the owners of plaint property. Whatever be the right claimed by defendant to use the pathway, that too for F.A.O.315/2007 20 vehicular traffic in exercise of his alleged right of easement by prescription what is the width of the pathway and its height from the rest of the property and whether defendant has tampered with plaint property constructing culverts, dumping of soil etc and whether such acts could be treated as acts done for maintenance of the pathway in exercise of the right of easement claimed, are all matters that can be decided only on the materials produced in the case. Even assuming that defendant has a right of prescriptive easement over the pathway no conclusion as such could be formed that construction of culverts, dumping of soil, if such acts have been done by him over the pathway, are acts done in exercise of maintaining the pathway and that is protected under section 22 of the Indian Easement Act. What was the nature of pathway previously what acts were done by defendant over such pathway and whether such acts could be treated as acts done for maintaining the F.A.O.315/2007 21 pathway in exercise of his right for use of the pathway, provided he has a right of easement by prescription by long and continuous use, are questions to be looked into and decided in the suit to consider the entitlement of plaintiffs and the reliefs canvassed under the amended plaint by which injunction both perpetual and mandatory are claimed.
9. Direction given by the District Judge that the issues in the suit, on remission, have to be resolved as if there has been a specific finding over the right of prescriptive easement by the defendant is not proper and correct. The learned Munsiff is directed to consider the claim of prescriptive easement by defendant only as defence to resist the suit. Tenability of that defence, and if so found acceptable, no doubt will have significance in considering the acts done by him, which, according to him, were done exercising his right to maintain the pathway and thus legal and F.A.O.315/2007 22 proper. That will have a bearing in deciding the entitlement of plaintiffs for the decree of injunction, prohibitory and mandatory applied for, in the suit.
10. Order of remission passed by the lower appellate court allowing the amendment of the plaint and reversing the dismissal of the suit is upheld. However the direction issued by the lower appellate court for consideration of the issues upholding the finding and prescriptive easement canvassed by the defendant directing the Munsiff to keep in tact the finding under paragraph 12 of his judgment and on that basis to adjudicate the other issues in the suit on remission is not sustainable and such directions shall stand vacated. On remission the learned Munsiff shall afford opportunity to the defendant to file additional written statement to the amended plaint and both parties shall be provided reasonable opportunity to substantiate their respective case. F.A.O.315/2007 23 A decision on the issues already cast in the suit and also that would arise from the amended plaint, and additional written statement thereto, shall be made by the court below taking note that the suit is one for injunction, that alone, and also the observations made in this judgment and in accordance with law.
Parties are directed to appear before the trial court on 11.3.2013. Munsiff is directed to give the case top priority for hearing to have an expeditious disposal, at any rate within a period of ten months from the date of receipt of a copy of this judgment. Both parties are directed to suffer their costs.
S.S.SATHEESACHANDRAN
JUDGE
tpl/
F.A.O.315/2007 24
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006