Kerala High Court
Sneha Joy vs George Pathrose on 18 July, 2019
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.M.BABU
THURSDAY, THE 18TH DAY OF JULY 2019 / 27TH ASHADHA, 1941
RSA.No.119 of 2016
AGAINST THE ORDER/JUDGMENT IN AS 3/2014 of SUB COURT, PERUMBAVOOR
DATED 10-08-2015
AGAINST THE ORDER/JUDGMENT IN OS 53/2011 of MUNSIFF COURT,
KOLENCHERRRY DATED 22-11-2013
APPELLANT/S:
SNEHA JOY
AGED 29 YEARS
D/O.JOY,PATHAPPILLIL HOUSE,MARANGATTULLY
KARA,THIRUVANIYOOR VILLAGE,KUNNATHUNADU TALUK,NOW
RESIDING AT PATHAPPILLIL(KUNNAMKOTTIL),PATTIMATTOM
KARA,PATTIMATTOM VILLAGE.
BY ADV. SRI.P.P.RAJESH
RESPONDENT/S:
GEORGE PATHROSE
AGED 61 YEARS
S/O.PATHROSE,PATHAPPILLIL HOUSE,ARAKUNNAM KARA,
MULAMTHURUTHY VILLAGE,KANAYANNOOR TALUK.
BY ADVS.
SRI.A.T.ANILKUMAR
SMT.V.SHYLAJA
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
18.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
RSA.No.119 of 2016
JUDGMENT
The suit was for injunction. The trial court dismissed it. The lower appellate court allowed the appeal and decreed the suit. A decree of permanent prohibitory injunction was granted restraining the defendant from causing any obstruction to the plaint schedule pathway, reducing its width, causing any obstruction to the vehicular traffic through the said pathway and from committing acts of waste therein. The plaint schedule property is shown in the plaint to be a puramboku land. It is stated in the plaint to be a pathway. The pathway is shown to have a length of 100 metres and a width of 13 feet. According to the plaintiff, at the terminal point of the pathway at the property of the plaintiff there is a bell-mouth having a width of 13 feet. The plaintiff filed the suit alleging that the defendant attempted to reduce the width of the bell-mouth and the pathway. The defendant denied most of the allegations in the plaint. But the existence of the pathway is not denied by her. Her case is that the width of the pathway is only 2 feet.
2. Heard Sri.P.P.Rajesh, the learned counsel for the appellant/defendant.
3. The dispute is all about the width of a pathway. The existence of the pathway is reported by the commissioner. The commissioner has reported the width of the pathway to be ranging from 3.5 to 3.7 metres. The width of the bell-mouth as reported by the commissioner is 13 feet. The commissioner was examined as PW4. 3 RSA.No.119 of 2016 Nothing was brought out from the commissioner to reject her report and plan.
4. On facts, the appellant has no case. There is no reason to reject the reasons stated by the appellate court to decree the suit. In the absence of any perversity, misreading of evidence or skipping of vital evidence, the second appeal cannot be admitted.
5. Three questions are formulated in the memorandum of appeal as substantial questions of law. Those three questions are extracted below:
(i) Whether the lower appellate court is legally justified in decreeing the suit in the absence of any pleadings by the plaintiff with regard to the infringement on the right of way over the plaint schedule pathway for a considerable period?
(ii) Whether the lower appellate court is justified in discarding the earlier decisions in Exts B3 and A1 judgments of the Munsiff's Court, Kolencherry with regard to the width of the pathway as 2 feet in the absence of any rebuttable evidence to its conclusiveness?
(iii) Whether the earlier findings of the Munsiff's Court, Kolencherry in Exts B3 and A1 with regard to the width of the plaint schedule pathway which was described as a thondu having 2 feet width would act as constructive resjudicata in the subsequent present suit?
These questions will be referred to in this judgment as questions (i) to
(iii).
6. I am shown a copy of the plaint. There are sufficient pleadings suggesting obstruction to the way caused by the defendant. There is no merit in question no.(i) in the memorandum of appeal which is formulated as if the plaint does not contain sufficient pleadings.
7. Question nos (ii) and (iii) in the memorandum of appeal relate to Exts A1 and B3 judgments. What is attempted to be 4 RSA.No.119 of 2016 impressed upon is that the appellate court did not take into consideration the findings in Exts A1 and B3 judgments that the width of the pathway is 2 feet. The appellate court considered Exts A1 and B3 judgments. As rightly stated by the learned appellate judge, those judgments do not bind the plaintiff. For, he was not a party in those suits. That apart, Exts A1 and B3 judgments are not at all relevant in the suit at hand. For, those judgments do not come within the purview of Secs 41 to 43 of the Indian Evidence Act. Question nos (ii) and (iii) formulated in the memorandum of appeal are also without merit.
8. The appeal is devoid of merit. No substantial question of law is involved in it. What it deserves is only a dismissal.
7. Dismissed.
Sd/-
A.M.BABU
Sks/18.7.2019 JUDGE