Kerala High Court
N.M.Alexander vs Ulahannan Varkey on 1 November, 2010
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 355 of 2000(A)
1. N.M.ALEXANDER
... Petitioner
Vs
1. ULAHANNAN VARKEY
... Respondent
For Petitioner :SRI.K.GOPALAKRISHNA KURUP
For Respondent :SRI.G.PRABHAKARAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :01/11/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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S.A.NO.355 OF 2000
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Dated this the 1st day of November, 2010
J U D G M E N T
Plaintiff in a suit for injunction is the appellant. A perpetual prohibitory injunction was sought for against the defendants/respondents to restrain them from trespassing upon the plaint property and also committing any waste and constructing a pathway through that property. The trial court negatived the claim mainly for the reason that the challenge raised by the defendants that they have a right of enjoyment over a pathway through the plaint property, is borne out by the materials tendered. Challenge by way of an appeal against the decree of dismissal of the suit by the plaintiff led to partly decreeing of the suit by the lower appellate court restraining the defendants by an injunction from cutting open a pathway through the plaint property. To the extent, the decree applied for in the suit was not granted by both the courts below, the S.A.NO.355/2000 2 plaintiff has preferred this second appeal.
2. Suit property is described as having 9 acres 12 cents of land, which formed part of 28 acres 74 cents obtained by the plaintiff under A1 partition deed executed between the members of his family. There is a cartable road in the property leading to the residential building of the plaintiff, over which, none other has got any right, was his case. The 1st defendant is the father of defendants 2 and 3 and they have got 1 acre 60 cents of land, and the 4th defendant, an extent of 80 cents adjoining thereto, and both the above properties lie contiguously, surrounded by the plaint property. The defendants have access to their properties by a pathway running towards south through the properties of the plaintiff's son, and so much so, they have no right to use any portion of the plaint property or cut open a way through such property, is the case of the plaintiff. Alleging that the defendants made an attempt to cut open a road towards north, from their properties, and cut down a rubber tree from the plaint property, the suit was laid for a perpetual prohibitory S.A.NO.355/2000 3 injunction to restrain them from trespassing upon the plaint property and from committing waste or cutting open a pathway through such property. The defendants 1 to 3 filed a joint written statement resisting the suit claim. The 4th defendant remained ex parte. The contesting defendants challenging the description of the plaint property contended that they have been in continuous enjoyment of a pathway from their property towards north through the plaint property and they have perfected a right of easement over such pathway. It was further contended that the case of the plaintiff that they are in enjoyment of a way through the property of the 4th defendant is false and unworthy of any merit. On the pleadings of the parties, the trial court raised the necessary issues for adjudication, which included the correctness of the description of the plaint property and also the claim of the defendants as to having a right of way through the plaint schedule property. Appreciating the materials tendered by both sides which consisted of PWs.1 to 3 and Exts.A1 to A6 for the plaintiff and DWs.1 to 3 for the contesting defendants and C1 series, the report, mahazer and sketch S.A.NO.355/2000 4 prepared by the advocate commissioner, after conducting local inspection, the trial court came to the conclusion that the properties of the defendants are surrounded on all sides by the plaintiff's property, and the alternate pathway enjoyed by the contesting defendants, as alleged by the plaintiff, is not in use and, further, to have such enjoyment, the defendants 1 to 3 have to pass through the property of the 4th defendant, which is separated from their property by a kayyala wall, and if the 4th defendant, admittedly, a worker of the plaintiff cause any obstruction, they will not be able to enjoy such a pathway, which, according to the plaintiff, then passed through the property of his son. It was further found that over a way which passed through the property of the plaintiff and in respect of the obstruction caused thereto, there had been previous proceedings before the Sub Divisional Magistrate and, later, such disputes were settled by the plaintiff providing an alternate way for the use of the public, over which, no doubt, the defendants too could claim every right for its enjoyment. On the evidence let in the case and also the report of the commissioner, the contentions S.A.NO.355/2000 5 raised by the defendants that they used to travel through the plaintiff's private pathway, having a width of 12 feet, which extended upto the north-eastern corner of their property, was found probable and acceptable. Noticing that the contesting defendants are residing in their property, and the 28 acres of land described in the plaint surrounded on all sides the properties of those defendants, and also the unequivocal statement made by the 1st defendant when examined as DW1 that he had no intention to cut open a pathway through the plaint property, the trial court concluded that the plaintiff is not entitled to the discretionary relief of injunction applied for, and the suit was dismissed. However, in the appeal preferred by the plaintiff, the lower appellate court, after re-appreciating the materials, holding that the defendants have not established their right of prescriptive easement over any definite pathway in the plaint property concluded that the plaintiff, in the given facts, is atleast entitled to a decree of injunction restraining the defendants from cutting open a new pathway through the plaint property. The rest of the suit claims, injunction restraining the S.A.NO.355/2000 6 defendants from trespassing upon and committing waste in the plaint property should have also been granted by the lower appellate court where the claim of the defendants of having prescriptive easement over a way through the plaint property had been found against, is the challenge raised by the plaintiff in the second appeal to canvass for a decree in toto as applied for in his suit.
3. The learned counsel for the appellant/plaintiff impeaching the conclusions drawn by both courts to the extent the injunction claimed by the plaintiff against the defendants was negatived contended that both the courts lost sight of the fact that the plaint property is only in respect of 9.12 acres out of 28 acres shown in the schedule, and where the defendants who claimed right of easement of way through such property neither pleaded nor proved the ingredients of such claim, and when such claim was rightly and correctly negatived by the lower appellate court, the plaintiff was entitled to a decree of injunction to restrain them from trespassing upon and committing waste in S.A.NO.355/2000 7 the plaint property. The report of the commissioner clearly demonstrate that there was an attempt to cut open a pathway through the plaint property, and as such, where an injunction to restrain them from committing such acts had been granted on the materials placed, the plaintiff should have been given a decree of injunction with respect to the rest of the claim as well to prevent the defendants from committing trespass and waste over his property, is the submission of the counsel. When a right of way through the plaint property had been claimed by the defendants as an easement, and that having been found against, even assuming that there was permissive user to walk through the plaint property before, on revocation of such permission, the defendants cannot have any right to pass through the property, is the submission of the counsel to contend that the plaintiff is entitled to a decree in toto as applied for in his suit.
4. Perusing the judgments rendered by both the courts with reference to the materials tendered and the submissions made by the counsel for the appellant, I find there is no merit in S.A.NO.355/2000 8 the challenges raised to assail the declining of the injunction against the defendants, canvassed by the plaintiff in a suit. The description of the plaint property has been challenged by the defendants and an issue was cast in the suit over the same as well. Admittedly, property comprising the residential building of the defendants having an extent of 1 acre 60 cents with the adjoining land belonging to the 4th defendant on its west, who is stated to be a worker of the plaintiff, is surrounded of all four sides by the plaint property. It is also not disputed that there is a kayyala wall separating the property of defendants 1 to 3 from that of the 4th defendant. The case of the plaintiff that the defendants 1 to 3 have a right of way through the property of the 4th defendant to the western side and that way then pass through the property of his son to reach a nadavarambu and then to a public road has to be appreciated in the backdrop that even on the date of the suit a boundary wall (kayyala) separated the properties of the defendant with that of the 4th defendant. It has also come out in evidence that there was previously a dispute over a way which passed through the plaint property before the S.A.NO.355/2000 9 Sub Divisional Magistrate and later plaintiff got surrender of that way providing an alternate way for the use of the public after effecting purchase of 6 cents of land. On the north-eastern corner of the defendants property, provision is made for access to that property through the plaint property. There are features evidencing the use of a way by the defendants through plaint property is borne out by the commission report and also other pieces of evidence let in the case. A1 partition deed is the basic document produced to establish the reliefs canvassed in the suit. Strangely enough, in that partition, the plaintiff got allotment of 28 acres of land which takes in the suit property of 9.12 acres. No material whatsoever was produced by the plaintiff to fix the identity of the suit property though a commission was taken. What is seen prepared is only a rough sketch which does not enable in any way in fixing the identity of the property. The rough sketch, C1 (b) does not show any access or way to the property of defendants 1 to 3, the contesting defendants in the suit. When the suit property in respect of which injunction is claimed has not been identified, it goes without saying, such a S.A.NO.355/2000 10 discretionary relief could not have been granted at all. Any decree of injunction granted in respect of a property not identified, where its identity is disputed, would only give rise to more confusion and, further, in the event of any violation of such decree it cannot be given effect to by appropriate orders. Without noticing that there was no identification of the suit property, it is seen, the lower appellate court has granted a decree of injunction restraining the defendants from cutting open a pathway through the property. What exactly is the plaint property which, admittedly, is surrounding the property of the defendants is not borne out by any records tendered in the case. As there is no appeal against the decree so granted in favour of the plaintiff by the lower appellate court though the circumstances indicated above are sufficient to invoke the powers of this Court under Order XLI Rule 33 of the Code of Civil Procedure to interfere with such decree, even without any appeal, as the discretion thereof has to be sparingly exercised I refrain from doing so. The lower appellate court has confirmed the findings of the trial court that on the proved facts and S.A.NO.355/2000 11 circumstances of the case, the contesting defendants are using the plaint schedule property for access to their properties, which is landlocked on all sides by the plaintiff's property and 4th defendant. Both the courts have held, in the proved facts established, the plaintiff is not entitled to get the injunction to restrain the defendants from entering into the plaint schedule property. There is no infirmity or error in the findings so entered by the courts below. There is no question of law leave alone any substantial question of law in the appeal, which is found to be devoid of any merit.
The appeal is dismissed directing both sides to suffer their respective costs.
S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J.
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S.A.NO.355 OF 2000
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J U D G M E N T 1st day of November, 2010 S.A.NO.355/2000 13