Kerala High Court
Punnayyoor Velayudhan @ Sugunan vs Ramankutty on 30 September, 2013
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
FRIDAY, THE 7TH DAY OF FEBRUARY 2014/18TH MAGHA, 1935
RSA.No. 1432 of 2013 ()
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AGAINST THE JUDGMENT IN AS 79/2012 of ADDL.DISTRICT COURT
KOZHIKODE-III DATED 30-09-2013
AGAINST THE JUDGMENT IN OS 260/2010 of PRL.MUNSIFF COURT
KOZHIKODE-I DATED 22-02-2012
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APPELLANT(PPELLANT/DEFENDANT):
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PUNNAYYOOR VELAYUDHAN @ SUGUNAN, AGED 53 YEARS,
S/O.APPUKUTTY, GEETHANJALI, ELAVANAPARAMBA,
KURUVATTOOR AMSOM, POLOOR DESOM, NAMBAYAYATH THAZHAM,
PARAMBIL BAZAR, KOZHIKODE TALUK, KOZHIKODE DISTRICT.
BY ADV. SRI.K.M.SATHYANATHA MENON
RESPONDENTS :
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1. RAMANKUTTY, AGED 71 YEARS,
S/O.CHANDUKUTTY, NELLIKKAL HOUSE, ELAVANAPARAMBA
KURUVATTOOR AMSOM, POLOOR DESOM, KOZHIKODE TALUK
KOZHIKODE DISTRICT-676 611.
2. DHANANI, AGED 61 YEARS,
W/O.RAMANKUTTY, NELLIKKAL HOUSE, ELAVANAPARAMBA,
KURUVATTOOR AMSOM, POLOOR DESOM, KOZHIKODE TALUK,
KOZHIKODE DISTRICT-676 611.
R1 BY ADV. SRI.JACOB ABRAHAM(CAVEATOR)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 07-02-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
BP
P.BHAVADASAN, J.
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Regular Second Appeal No.1432 OF 2013
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Dated this the 7th day of February, 2014.
J U D G M E N T
The defendant in O.S.No.260/2010 before the Principal Munsiff Court, Kozhikode who suffered a decree of permanent prohibitory injunction which was confirmed in appeal is the appellant.
2. The plaintiffs obtained the ownership and possession of the plaint schedule property as per Ext.A1 dated 15.12.2004. The plaint schedule consisted of two items of properties. The relief sought for is in respect of item No.2. The complaint of the plaintiffs is that the defendant who had no right over item No.2 tried to trespass into the property and reduce the same into his possession and use it as pathway.
3. The defendant resisted the suit. It is pointed out by him that he purchased the property from one Anil Kumar, his predecessor-in-interest and the western boundary of the property is set apart as a pathway and that was the pathway provided by R.S.A No.1432/2013 2 vendor for the use of vendees under Ext.B1 document which is dated 08.01.2004. It is contended that plaintiffs have no right to block the use of the said pathway and they are trying to reduce the width of the way. On the basis of these contentions, he prayed for dismissal of the suit.
4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A8 from the side of the plaintiffs. The defendant had DW1 examined and Exts.B1 to B4 marked. The Advocate Commissioner was examined as CW1 and the reports and plans were marked as Exts.C1 to C2(a).
5. On appreciation of the evidence in the case, the trial court came to the conclusion that even though the way is shown on the western boundary of Ext.B1, that was available in the document of title in favour of the predecessor in interest of the defendant and the defendant has no right to use the property as road to his property. Finding that the property was obtained by the plaintiffs, suit was decreed.
6. The defendant carried the matter in appeal. At the R.S.A No.1432/2013 3 appellate stage, the defendant filed I.A.No.549/2012 seeking to amend written statement incorporating prescriptive right as well as easement to use pathway on the western side. By order dated 15.11.2012, the lower appellate court dismissed that petition. Thereafter the appeal was taken up for hearing and concurring with the findings of the trial court, the appeal was dismissed.
7. The substantial questions of law formulated in the memorandum of appeal read as follows:
1) Whether the courts below were right in decreeing a suit for perpetual prohibitory injunction without identifying the plaint schedule property?
2) When the lower appellate court is right in dismissing the appeal without complying the directions of this Hon'ble Court vide judgment in O.P(C) No.4027 of 2012 by which the order in I.A.No.549 of 2012 was set aside and it was further directed to consider the said application for amendment along with A.S.No.79 of 2012?
3) Whether granting of injunction by the courts below are sustainable in view of Section 41(g) and (1) of the Specific Relief Act and when the plaint schedule property shown by the R.S.A No.1432/2013 4 Commissioner in Ext.C1(a) and C2(a) is not tallying with the measurements shown in the plaint schedule property?
4) Whether the suit can be decreed when the measurement and identity of the plaint schedule property shown by the Commissioner in Ext.C1(a) and Ext.C2(a) does not tally with the plaint schedule property that too taken without the assistance of an expert?
5) When the plaintiff is having a specific case that the defendant was set apart a separate area of 4 feet as an access to his property, then even without identifying the said way either by documents or by evidence including the Advocate Commissioner is it right in granting an injunction in favour of the plaintiff?
6) When the description of the plaint schedule property itself shows that it is having a width of a way, will it be the only remaining property of Sri.Rajendran or can it be a way as an access to the properties of the defendant?
7) Whether the courts below are right in reaching into a finding that property has been identified including the measurements without measuring the entire property of Rajendran and the properties of plaintiffs and defendant R.S.A No.1432/2013 5 and also to see that whether the remaining property of Sri.Rajendran is the plaint schedule property and the same can be assignable to Shibusco when it can be used only as a way especially when the same has been shown as an eastern boundary of the defendant?
8) Whether the existence of the plaint schedule property remains as such after the sale of item No.1 in Ext.A1 sale deed by the respondents will not add to the presumption that the plaint schedule property is a way used for ingress and egress by the appellants?
8. The crux of the argument of the learned counsel for the appellant was that the property scheduled as item Nos.1 and 2 have not been identified and without identifying the said property, a decree could not be granted. It is further contended that in the document of title in favour of the defendant which is Ext.B1, western boundary is shown as pathway and that shows that there existed a pathway for long time. The defendant again claimed exclusive right to use the said pathway. It is also pointed out that there is no other means of access to the defendant to his property. Further it is contended that the lower appellate court was not justified in dismissing the I.A. R.S.A No.1432/2013 6
9. Learned counsel appearing for the respondents, on the other hand, pointed out that the defendant had no consistent case at all and it was in the light of the contention that the plaintiffs did not possess the property that the lower appellate court was called upon to consider the question of amendment. Apart from the fact that the amendment was highly belated, it is also noticed that it is inconsistent with the earlier pleadings and a new case was sought to be set up by the defendant. It was under these circumstances I.A. came to be dismissed. On the merits of the appeal, it is pointed out that both the courts below found that item No.2 is included in the document of title and even assuming that there is a way as alleged by the defendant, he cannot succeed as he had no manner of right to use the said pathway.
10. Learned counsel for the respondents went on to point out that this Court is exercising its jurisdiction under Section 100 of the Code of Civil Procedure and unless it is shown that there are substantial questions of law, merely because this Court may be inclined to take a different view is not a ground to interfere R.S.A No.1432/2013 7 the judgment and decrees of the courts below.
11. The suit was one for injunction. As is well settled, in a suit for injunction, the only question that arises is regarding the possession of the property. There are two items of plaint schedule i.e. item Nos.1 and 2. The dispute is with regard to item No.2 of the plaint schedule. The plaint schedule property is having an extent of 2.40 cents and it is comprised in resurvey No.11/8 of Kuruvattur Amsom, Polur Desom. Boundaries are shown in the schedule. The plaintiffs purchased the said property as per Ext.A1 sale deed dated 15.12.2004. The purchase by the defendant of his property lying on the eastern side of the property owned by the plaintiffs is as per Ext.B1 dated 08.01.2004. The predecessor-in-interest of the defendant is one Anil Kumar who obtained the property from one Rajendran as per Ext.B2 dated 09.01.2003. It is true that the purchase by the plaintiffs is subsequent to that of the purchase by the defendant and is by Ext.A1 dated 15.12.2004.
12. The plaintiffs in the plaint had categorically asserted that the plaint item No.2 is covered by their document of title and R.S.A No.1432/2013 8 the defendant had no manner of right over the same. The main emphasis is laid on the fact that document of title of the defendant shows an 8 feet pathway on the western side of the property. The plaintiffs have pointed out that there is no such pathway claimed by the defendant in existence. It may be noticed that the property purchased by Anil Kumar as per Ext.B2 has direct access from the main road. It was he who sold the property to the defendant. The lie and location of the property as would be discernible from commission reports and plans shows that Anil Kumar did not have to use the pathway on the western side. It is seen mentioned as boundary of the property which was assigned to the defendant by Anil Kumar. The lower court also noticed that Ext.B2 document whereby Anil Kumar obtained the property does not show the pathway. On the other hand, it is shown as the property belonging to the vendor of Anil Kumar. The courts below therefore came to the conclusion that it was for the first time in Ext.B1 that the pathway came to be mentioned. Both the courts below have taken the view that since Anil Kumar had no manner of right as per Ext.B1, the defendant cannot have R.S.A No.1432/2013 9 a better right.
13. It is also significant to notice that as per Ext.B3, the western boundary of Rajendran's property was shown as item Nos.9 and 13 of Edavanaparamba partition deed. A perusal of that document would show that the property covered by that document was not item Nos.9 and 13 but the remaining properties which are in the possession of Rajendran.
14. On consideration of Exts.A1, B2 and B3, it can be seen that the plaint schedule property is lying between the defendant's property and item Nos.9 and 13, the property of Edavanaparamba partition deed. The commission reports and plans also show that the plaint schedule property has been identified. No objection is seen filed by the defendant to the commission reports. It can be seen from the commission report that while Anil Kumar was enjoying the property, he had no necessity to use the pathway as he has direct access from the main road. As rightly noticed by the courts below, the assignment in favour of Anil Kumar does not make mention of the pathway on the western side. It would appear from the lie R.S.A No.1432/2013 10 and location of the property as evidenced by Exts.C1 to C2(a) that the plaint schedule item was being used as means of access to the plaintiff's property lying on the western side. Whatever that be, it is quite evident that Ext.A1 is a document of title executed in favour of the plaintiffs. Even assuming that there is a way on the western side as shown in the document of title of the defendant, it does not follow that defendant is entitled to use that way. It cannot be disputed now that the property over which the so called way is now alleged belongs to the plaintiffs. Unless and until the the plaintiffs try to block the same, it does not follow that the defendant can use the same.
15. At the appellate stage, there was an attempt to incorporate the plea of prescriptive right and easement of necessity by way of amendment. That, as rightly noticed by the lower appellate court, is totally different with the former plea and therefore it could not have been entertained. Moreover, it is not disputed that the plaint item shown as 2.40 cents does not belong to the plaintiffs. The main contention is that the said property has not been properly identified by the Commissioner. R.S.A No.1432/2013 11 But, as already noticed, the commission reports and plans show that he has located the plaint schedule item and shown it as a way in the sketch. Since no objection is taken to the identification made by the Commissioner, it is idle for the defendant to contend that there was no proper identification of the plaint schedule property. It is also seen that on the southern side of the so called pathway, there were trees like coconut trees and mango trees and they were seen cut down and that the stumps were seen at the spot. True, the Commissioner also found it difficult to accept the plea of the defendant that the plaint schedule property was being used as pathway. It has come out in evidence that Anil Kumar sold his property to the defendant and his brother and they subsequently divided the property whereby the southern portion was taken by the defendant's brother and the northern portion by the defendant. If at all any easement of right is as against the parties to a deed by which southern side was taken by the defendant's brother and the northern portion by the defendant, the plaintiffs have no objection regarding pathway.
R.S.A No.1432/2013 12
16. On perusal of the judgments of the courts below and also on re-appreciation of the evidence in the case, this Court is unable to find any error on the findings of the courts below. Admittedly, when the document of title of the predecessor-in- interest of the defendant does not show western boundary as pathway, the conclusion drawn by the courts below are fully justified going by the evidence on record. The findings are pure questions of fact arrived at on appreciation of evidence in the case. No question of law arises for consideration in the R.S.A. Therefore, the R.S.A is without merits and it is accordingly dismissed. However, there will be no order as to costs.
P.BHAVADASAN JUDGE smp