Kerala High Court
Chacko vs Varghese on 23 July, 2025
RSA No.638 of 2012 1 2025:KER:55063
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 23RD DAY OF JULY 2025 / 1ST SRAVANA, 1947
RSA NO. 638 OF 2012
AGAINST THE JUDGMENT DATED 10.11.2011 IN AS NO.3 OF 2010 OF
ASSISTANT SUB COURT, PERUMBAVOOR ARISING OUT OF THE JUDGMENTAND DECREE
DATED 20.11.2009 IN OS NO.30 OF 2008 OF MUNSIFF COURT, KOLENCHERRRY
APPELLANT/(APPELLANT/PLAINTIFF) :
CHACKO
AGED 78 YEARS
S/O.VARKEY, PANACHIYIL, PERINGOLE KARA,
AIKKARANADU NORTH VILLAGE, KUNNATHUNADU TALUK.
BY ADVS.
SRI.DINESH R.SHENOY
SRI.G.HARIKRISHNAN (TRIPUNITHURA)
SRI.R.V.RAHUL
RESPONDENTS/(RESPONDENTS/DEFENDANTS) :
1 VARGHESE
AGED ABOUT 76 YEARS
S/O.V.CHERIYA PANACHIYIL, PERINGOLE KARA,
AIKKARANAD NORTH VILLAGE, KUNNATHUNADU TALUK.653 548.
2 CHERIYAN.P.VARGHESE
AGED 44 YEARS
S/O.VARGHESE, PANACHIYIL, PERINGOLE KARA, AIKKARANAD
NORTH VILLAGE, KUNNATHUNADU TALUK.653 548.
BY ADVS.
SRI.ANIL GEORGE
SMT.T.ANCY
SRI.JOBY JACOB PULICKEKUDY
SRI.K.S.SUMEESH
THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
23.07.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA No.638 of 2012 2 2025:KER:55063
EASWARAN S., J.
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R.S.A. No.638 of 2012
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Dated this the 23rd day of July, 2025
JUDGMENT
The plaintiff in OS No.30 of 2008 concurrently nonsuited by the Munsiff Court Kolencherry and the Sub Court, Perumbavoor in A.S. No.3 of 2010 has come up in the present appeal raising several substantial questions of law.
2. The brief facts necessary for the disposal of the appeal are as follows:
The plaintiff is in possession of an extent of 24 Ares (measurement found only 22.25 Ares) in survey No.432/12 of the Aikaranadu North village. The property is lying with well defined boundaries and a PWD road lies in the northern side. There is a mud road starting from the PWD road and ending towards the north eastern corner of the plaint schedule property having a width of 3 feet. The property owner of the northern side recently widened the way up to his property to an extent of 10 feet. The ten feet way is now touching towards the north eastern corner of the plaintiff's property. The said way is having 20 feet length and 10 feet width up RSA No.638 of 2012 3 2025:KER:55063 to the property of one George, and thereafter the way is having three feet width up to the property of the plaintiff. There are kayyalas on the north and west, and a paddy field lies on the southern side. There is yet another kayyala on the western side of the property at the level of the paddy field, and the eastern side is lying at a higher level than the neighbouring property. It is also contended that, an electric post is standing on the eastern boundary of the plaint schedule property. There is a pond lying on the south-eastern side of the property of one Thenumkal George. There are steps proceeding from the plaint schedule property to the pond. The plaintiff had planted rubber trees in the property, which were given for slaughter tapping, and the trees were cut and removed from the property in order to plant new rubber saplings. The defendants are trying to obstruct the plaintiff from doing the rubber cultivation on the assumption that there is a five feet width road passing from the northern side of the plaint schedule property to the southern side to enter into the padasekharam. When attempts were made to replant the rubber plants, the defendants obstructed the same, and hence the suit. The defendants entered appearance and contested the claim stating that there is no cause of action against the defendants inasmuch as they are not necessary parties to the suit. In fact, a caveat was lodged by RSA No.638 of 2012 4 2025:KER:55063 certain neighbouring owners, and the plaintiffs, instead of impleading them, had made these defendants in the party array. It is further contended that there is a five feet width pathway from the northern end of the plaint schedule property passing through the plaint schedule property into the southern end in order to enter into the 'padasekharam' which has been used by the general public from time immemorial, and therefore the plaintiff is not entitled for the relief sought for. Before the trial court, the plaintiff produced Exts.A1 to A3 and examined PW1 to PW4. On behalf of the defendants, only a copy of the caveat was produced as B1. Three advocate commissioners were appointed for local inspection who filed Exts.C1 to C3(a) reports and plan. DW1 to DW4 were examined on the part of the defendants. The trial court, on appreciation of the oral and documentary evidence, found that the case set up by the defendants that there exists a five feet width pathway in the plaint schedule property is not proved and further that the defendants do not claim any right of way over the five feet pathway. After entering into a specific finding with reference to the report of the advocate commissioner, the trial court proceeded to find that the extent of property as claimed by the plaintiff is 24 Ares whereas on measurement it was found that only an extent of 22.25 Ares of land RSA No.638 of 2012 5 2025:KER:55063 is in the possession of the plaintiff and therefore it probabilises the case of the defendants regarding the existence of 5 feet width pathway from time immemorial and accordingly dismissed the suit. The trial court further found that the plaintiff had no cause of action against the defendants, and also that the suit was bad for non-joinder of necessary parties. Aggrieved by the dismissal of the suit, the plaintiff preferred A.S. No.3 of 2010 before the Sub Court, Perumbavoor. The first appellate court found that the finding of the trial court that the suit is bad for non-joinder of necessary parties is incorrect, and also found that the suit being filed for injunction simplicitor, the plaintiff had a cause of action to maintain the suit against the defendants. However, concurred with the findings of the trial court as regards the existence of the five feet width pathway, the first appellate court dismissed the suit. Aggrieved by the dismissal of the suit and the appeal, the plaintiff is before this Court.
3. When the appeal was admitted to file by order dated 2.8.2012, this Court framed the following questions of law.
(i) Whether in the light of identification and demarcation of the plaint schedule property though survey measurement in the absence of any claim of easement as against the owner of the property a suit for injunction to restrain trespass by the defendants into the property does not necessarily have to be decreed?
RSA No.638 of 2012 6 2025:KER:55063
(ii) Whether in a case where defendants placed a case of public pathway lying outside the property of the plaintiff as a defence in a suit for injunction and it is established through survey measurements that no land other land than the property covered by the plaintiff's title deed is available at the site a suit for injunction simplicitor to protect the plaintiff's possession and enjoyment of his land is not to be decreed.
(iii) Whether the findings and conclusions being contrary to the pleadings and the evidence in the case and hence unsustainable?
(iv) Whether in the light of defendants' willful omission to produce the title deed to exam any independent witness including the alleged mediators, an adverse reference is not liable to be drawn against them for the supervision of the best evidence?
4. Heard Sri.Dinesh R Shenoy, the learned counsel appearing for the appellant and Sri.Joby Jacob Pulikekudy, the learned counsel appearing for the respondents.
5. Sri.Dinesh R Shenoy, the learned counsel appearing for the appellant, contended that the findings of the trial court as well as the first appellate court are completely perverse inasmuch as the defendants had no case of any right of easement by prescription. The defendants also failed to establish that, there exists a five feet width pathway which runs from the northern end of the plaint schedule property of the plaintiff up to the southern end. The contention of the RSA No.638 of 2012 7 2025:KER:55063 defendants that, they are using the pathway for entering into the padasekharam which lies in the southern side of the plaint schedule property, is also not established. Still further, it is pointed out that the report of the advocate commissioner, Ext.C2 and C2(a), specifically shows the existence of steps in the southern end which are being used for the purpose of entry into the pond lying towards the southern end of the property. The oral testimony of DW2, the immediate neighbour of the plaintiff, was examined by the defendants to prove that there existed a five feet width pathway dehors the fact that there existed a well-defined boundary separating the property of the plaintiff and the property of the defendants on the eastern side. The oral testimony of DW2 itself is sufficient to disprove the contention of the defendants. It is further argued that the trial court has rendered mutually contradictory findings and still dismissed the suit.
6. Per contra, Sri.Joby Jacob Pulikekudy, the learned counsel for the respondents, would argue that both the trial court as well as the first appellate court have found concurrently that the plaintiff is not entitled for the injunction. The remedy of injunction is an equitable remedy, and the plaintiff approached the trial court with unclean hands. It is further pointed out that, going by Ext.C3 report RSA No.638 of 2012 8 2025:KER:55063 of the advocate commissioner, there is clear evidence to show that the plaintiff tried to annex the five feet width pathway into the plaint schedule property and therefore has come before the trial court with unclean hands. It is further pointed out that this Court cannot re- appreciate the evidence in an appeal under Section 100 of the Code of Civil Procedure and enter into a different finding. In support of his contention, the learned counsel relied on the decision of the Supreme Court in Jaichand (dead) Through Lrs. V. Sahnulal [2024 KHC 6720] and the decision in Anathula Sudhakar v. P Buchi Reddy (dead) by Lrs and Others [2008 KHC 6249].
7. I have considered the rival submissions raised across the Bar and have perused the judgment of the trial court as well as the first appellate court and the records of the case.
8. To answer the questions of law framed by this Court, it is imperative for this Court to discuss certain pleadings in the written statement preferred by the defendants. As stated above, the suit is filed for injunction simpliciter restraining the defendants from trespassing into the plaint schedule property and obstructing the plaintiff from enjoying the property. The defendants resisted the suit by contending that there existed a five feet width pathway towards the eastern side of the plaint schedule property. The pathway, RSA No.638 of 2012 9 2025:KER:55063 according to the defendants, starts from the northern end and ends on the southern side, which has a direct entry into the Padasekharam. The averments regarding the existence of a five feet width pathway are stated in paragraph No.4 of the plaint. Still further, going forward, in paragraph No.5 of the written statement, it is stated that the plaintiff had tried to annex the portion of the pathway on the eastern side into his plaint schedule property, and therefore the plaintiff is not entitled to the relief sought for. It is in this context that the reports of the advocate commissioner must be considered by this Court.
9. As stated above, three reports were filed by the advocate commissioner. More pertinently, Exts.C2 and C3 are the reports that falls for consideration. In Ext.C2 report, which was taken out at the time when the suit was initially moved, the advocate commissioner found the existence of steps towards the southern side of the plaint schedule property entering into a pond. The advocate commissioner found that the said steps can be used for entry into the pond as well as to the Padasekharam.
10. However, later, the plaintiff took out yet another commissioner, and the very same commissioner who filed Ext.C3 had filed the Ext.C2 report and Ext.C2(a) plan. Pertinently, Ext.C2(a) RSA No.638 of 2012 10 2025:KER:55063 plan was drawn after measuring the property with the help of the surveyor. In the Ext.C2 report, the advocate commissioner has specifically stated that the steps which are in existence towards the southern side are basically used by the plaintiff to enter into the pond which lies towards the south east corner. The commissioner has specifically noticed the level difference between the plaint schedule property as well as the so called padasekharam and also the defendants claim that they are using the five feet width pathway to access the entry into the padasekharam. With these infirmities, when this Court proceeds to consider the findings rendered by the trial court, it becomes inevitable for this Court to find that there exists mutually contradictory findings rendered by the trial court, which will be discussed in the preceding paragraphs.
11. On a cursory glance on the findings rendered by the trial court, this Court finds that the claim of the defendants that there exists a way and that, the defendants are using the way to enter into the padasekharam is categorically found against them. The relevant findings in Paragraph Nos.26 of the judgment is extracted as under:
26. It is argued by the plaintiff that, there is no documentary evidence to show that there is a five feet pathway lies on the eastern side of the plaintiff's property. The defendants have adduced oral evidence to substantiate the same. On RSA No.638 of 2012 11 2025:KER:55063 going through the evidence adduced it is seen that all the witnesses examined on the side of the defence are interested witnesses. Exts. A1 to A3 would show that the plaintiff is paying tax for 24 Ares of land. But during the measurement it was found that the total extent of property is 22.25 Ares. It is categorically stated by PW4 surveyor that he could not fix the eastern boundary of the plaint schedule property since the kayyala was collapsed recently.
It is further stated by the plaintiff that the western boundary of Thenumkal George is touching with the eastern boundary of the plaintiff. The defendants have no case that there is a fencing between the plaint schedule property and the property of the defendants. Hence the contention raised by the defendants that the plaintiff tried to amalgamate the way portion to his property is unsustainable. If at all there is a way, the right of way of these defendants has not been established. There is no pleadings in the written statement to the effect that these defendants have right of way through the alleged 5 feet pathway. The said fact has not been proved with the oral evidence of DW1 to DW4.
12. Still further, the trial court found that the contention of the defendants that the plaintiff tried to amalgamate the pathway into plaint schedule property is also not proved. In paragraph No.29 of the judgment, the trial court found after analysing the oral testimony of DW1 to DW4 that they have given inconsistent versions with RSA No.638 of 2012 12 2025:KER:55063 regard to the lie and nature of the alleged pathway. More pertinently, after analysing the oral testimony of DW2, the court found that "in case there is any such fencing in existence, the contention taken by these defendants that there is a five feet pathway through the eastern side of the plaintiff's property is also incorrect". However, the oral testimony of DW1, DW3 and DW4 are not consistent with that of the oral testimony of DW2. With the above back drop, when this Court proceeds further to read the findings of the trial court, it becomes clear that while concluding, the trial court went wrong in holding that the existence of a five feet pathway is more probable. The specific finding rendered by the trial court is seen in paragraph 31 of the judgment, which reads as under.
31. According to the defendants, the total extent of plaint schedule property has been shown in the schedule as 24 Ares. But during the measurement, it was found that the plaintiff has got possession and ownership only over 22.25 Ares. Hence the averment to the effect that the total extent of the plaint schedule property is 24 Ares has not been established. More over, subsequent to the filing of the commission report the plaintiff has not raised any objection to the effect that the measurement is incorrect and he has not amended the plaint to that aspect. Hence the plaintiff admitted the fact that the plaint schedule property is having only 22.25 Ares.
RSA No.638 of 2012 13 2025:KER:55063
13. The only reason why the trial court found that, the case pleaded by the defendants is probable is because of the difference in the extent of the plaint schedule property as claimed by the plaintiff and as found by the commissioner with the help of the surveyor. As stated above in the plaint, the plaintiff claimed that the plaint schedule property is having an extent of 24 Ares while on measurement it is found that it is having only 22.25 Ares. The serious infirmity in the aforesaid finding is writ large especially since the trial court misread the report of the advocate commissioner. In Ext.C2 report and Ext.C2(a) plan the advocate commissioner had clearly identified the property in relation to the old survey records as well as the new survey records with the extent and the boundaries mentioned in the title documents. The difference in the extent of property measured out as per the old survey records as well as the records leads to an irresistible conclusion that there is no balance property left out after measuring the plaint schedule property. If the defendants case is to be sustained, there should be balance extent of property left out after measuring the property to an extent of 22.25 Ares. The defendants miserably failed to establish that there is balance property left out after the extent of 22.25 Ares. That apart, a reading of the written statement shows that the defendants had no RSA No.638 of 2012 14 2025:KER:55063 specific case on what right, they had over the plaint schedule property. Of course, there is an assertion that the defendants and other public were using the five feet width pathway from time immemorial. Therefore, if there is a specific case for easement by prescription set out, pertinently, it must be noted that the suit is only for injunction simplicitor. No counter claim was lodged by the defendants to establish that they had the right of easement by prescription over the extent of the plaint schedule property. Therefore, in the absence of any such case, and that the trial court also finding that the defendants were unsuccessful in establishing their case set up in the written statement, could not have proceeded to dismiss the suit on a probable assumption that there exists balance property after measuring out the 22.25 Ares of land by the advocate commissioner.
14. Hence, this Court concludes that, in the light of the identification and demarcation of the plaint schedule property with reference to the survey records and also in the absence of claim for easement against the true owner, the suit for injunction ought not have been dismissed by the trial court. Furthermore, the trial court having concluded that the defendants failed to produce the alleged settlement between the plaintiffs and the defendants through RSA No.638 of 2012 15 2025:KER:55063 mediators whereby the plaintiff agreed to allow the defendants access to the five feet width pathway, it could not have dismissed the suit.
15. Resultantly, answering the questions of law in favour of the appellant, this Court finds that the dismissal of the suit by the trial court as well as the first appellate court was wrong and that the trial court had appreciated the evidence adduced by the appellant/plaintiff in a perverse manner which necessitates this Court to reverse the findings. Accordingly, the appeal is allowed and the judgment in OS No.30 of 2008 as confirmed in AS No.3 of 2010 is set aside. The defendants are restrained by an order of injunction trespassing into the plaint schedule property and obstructing the right of the plaintiff to use the plaint schedule property. However, the judgment of this Court will not stand in the way of the defendants establishing any right of easement by prescription over the plaint schedule property, if any, and the same is permissible under law.
Sd/-
EASWARAN S. JUDGE NS