Kerala High Court
V.V.Pathrose vs V.V.Xavier on 12 November, 2012
Author: Thomas P. Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
MONDAY, THE 12TH DAY OF NOVEMBER 2012/21ST KARTHIKA 1934
RSA.NO. 372 OF 2012 ()
-------------------------------------
AS.253/2006 OF II ADDITIONAL DISTRICT COURT, ERNAKULAM
OS.1134/2000 OF III ADDITIONAL MUNSIFF'S COURT, ERNAKULAM
APPELLANTS/APPELLANTS//PLAINTIFF & LEGAL HEIRS :
----------------------------------------------------------------------------------
1. V.V.PATHROSE
S/O.LATE VARUTHU, AGED 66 YEARS, VAZHAKUTTATHIL HOUSE
MATTAMMELPARAMBU,CHENGANADU DESOM,ELAMKULAM VILLAGE
KANAYANNUR TALUK, ERNAKULAM DISTRICT(DIED).
2. REETHA PATHROSE,
W/O.V.V.PATHROSE,VAZHAKUTTATHIL HOUSE
MATTAMMELPARAMBU,CHENGANADU DESOM,ELAMKULAM VILLAGE
KANAYANNUR TALUK,ERNAKULAM DISTRICT(DIED).
3. AGNUS ALICE AGED 49 YEARS
D/O.V.V.PATHROSE,VAZHAKUTTATHIL HOUSE
MATTAMMELPARAMBU,CHENGANADU DESOM,ELAMKULAMVILLAGE
KANAYANNUR TALUK,ERNAKULAM DISTRICT.
4. JUDE ALBERT, AGED 45 YEARS
S/O.V.V.PATHROSE,VAZHAKUTTATHIL HOUSE
MATTAMMELPARAMBU,CHENGANADU DESOM,ELAMKULAM VILLAGE
KANAYANNUR TALUK,ERNAKULAM DISTRICT.
5. ALOSIOUS.V.P, AGED 41 YEARS
S/O.V.V.PATHROSE, VAZHAKUTTATHIL HOUSE
MATTAMMELPARAMBU,CHENGANADU DESOM, ELAMKULAM VILLAGE
KANAYANNUR TALUK,ERNAKULAM DISTRICT.
R.S.A. No.372 of 2012
6. ANCY.V.P, AGED 39 YEARS,
D/O.V.V.PATHROSE,VAZHAKUTTATHIL HOUSE
MATTAMMELPARAMBU,CHENGANADU DESOM,ELAMKULAM VILLAGE
KANAYANNUR TALUK,ERNAKULAM DISTRICT.
BY ADVS.SRI.C.A.CHACKO
SMT.C.M.CHARISMA
RESPONDENTS/RESPONDENTS/DEFENDANTS:
--------------------------------------------------------------------
1. V.V.XAVIER
S/O.LATE VARUTHU,VAZHAKUTTATHIL HOUSE,KONTHURUTHY
THEVARA.P.O.,(DIED).
2. V.V.MICHAEL,
S/O.LATE VARUTHU,VAZHAKUTTATHIL HOUSE,KONTHURUTHY
THEVARA.P.O.,(DIED).
3. THRESIAKUTTY,
W/O PETER,VAZHAKUTTATHIL HOUSE, MATTAMMEL PARAMBU
CHENGANADU DESOM,ELAMKULAM VILLAGE,KANAYANNUR TALUK
PIN-682011.
4. V.P.JOSEPH,
S/O.LATE PETER,VAZHAKUTTATHIL HOUSE
MATTAMMEL PARAMBU,CHENGANADU DESOM,ELAMKULAM VILLAGE
KANAYANNUR TALUK(DIED).
5. MABLE,
W/O.K.V.ANTONY,KALAPURACKAL HOUSE,HOUSE NO.960
TDR CROSS ROAD,THOPPUMPADY,KOCHI-5.
6. GEORGE.V.P,
S/O.LATE PETER,VAZHAKULATHIL HOUSE,VALIYAPARAMBIL
H.NO.14/1171, NAZRETH,KOCHI-2.
7. SEBASTIAN,
S/O.PETER,VAZHAKUTTATHIL HOUSE,MATTAMMEL PARAMBU
CHENGANADU DESOM,ELAMKULAM VILLAGE,KANAYANNUR TALUK
THEVARA.P.O,KOCHI-13.
8. V.P.JOY,
S/O.LATE PETER,VAZHAKUTTATHIL HOUSE,MATTAMMEL PARAMBU
CHENGANADU DESOM,ELAMKULAM VILLAGE,KANAYANNUR TALUK
THEVARA.P.O,KOCHI-13.
R.S.A. No.372 of 2012
9. PHILO,
D/O.LATE PETER,VAZHAKUTTATHIL HOUSE
MATTAMMEL PARAMBU,KCHENGANADU DESOM
ELAMKULAM VILLAGE,KANAYANNUR TALUK,THEVARA.P.O
KOCHI-13.
10. JUDE,
S/O.LATE PETER,VAZHAKUTTATHIL HOUSE
MATTAMMEL PARAMBU,CHENGANADU DESOM,ELAMKULAM VILLAGE
KANAYANNUR TALUK,THEVARA.P.O,KOCHI-13.
11. JUDY,
W/O.BABY,KALLAPARAMBIL HOUSE,ELTHURUTH.P.O
LALOOR,THRISSUR-682 004.
12. GLADY,
D/O.PETER,VAZHAKUTTATHIL HOUSE,MATTAMMEL PARAMBU
CHENGANADU DESOM,ELAMKULAM VILLAGE,KANAYANNUR TALUK
THEVARA.P.O,KOCHI-13.
13. AGNES XAVIER,
W/O.LATE V.V.XAVIER,VAZHAKUTTATHIL,KONTHURUTHY
THEVARA.P.O,PIN-682015.
14. V.X.GEORGE,
S/O.LATE V.V.XAVIER,VAZHAKUTTATHIL,KONTHURUTHY
THEVARA.P.O,PIN-682015.
15. MAGI,
W/O.GEORGE,PADIOTHUMPARAMBIL,SUDER NAGAR
IRIMPANAM.P.O,PIN-682 015 (DIED).
16. ANNIE,
W/O.JOY,CHULLICKAL HOUSE,CHULLICKAL.P.O
KOCHI-5.
17. ROSILY,
W/O.JOSEPH,VAZHAKUTTATHIL HOUSE
VEEPEE WELDING & ENGINEERING
RESIDING AT MATTAMMAL PARAMBU,CHENGANADU DESOM
ELAMKULAM VILLAGE,KANAYANNUR TALUK,THEVARA.P.O
KOCHI-13.
R.S.A. No.372 of 2012
18. GIGO,
S/O.JOSEPH,VAZHAKUTTATHIL HOUSE
VEEPPEE WELDING & ENGINEERING
RESIDING AT MATTAMMAL PARAMBU,CHENGANADU DESOM
ELAMKULAM VILLAGE,KANAYANNUR TALUK,THEVARA.P.O
KOCHI-13.
19. RIGO,
S/O.JOSEPH,VAZHAKUTTATHIL HOUSE
VEEPPEE WELDING & ENGINEERING
RESIDING AT MATTAMMAL PARAMBU,CHENGANADU DESOM
ELAMKULAM VILLAGE,KANAYANNUR TALUK,THEVARA.P.O
KOCHI-13.
20. SAJI,
S/O.JOSEPH,VAZHAKUTTATHIL HOUSE
VEEPPEE WELDING & ENGINEERING
RESIDING AT MATTAMMAL PARAMBU,CHENGANADUDESOM
ELAMKULAM VILLAGE,KANAYANNUR TALUK,THEVARA.P.O
KOCHI-13.
ADDITIONAL RESPONDENTS IMPLEADED:
-----------------------------------------------------------
21. GEORGE, PADIOTHUMPARAMBIL,
SUDER NAGAR, IRIMPANAM P.O.
22. SOUMYA, D/O. GEORGE,
PADIOTHUMPARAMBIL, SUDER NAGAR,
IRIMPANAM.P.O.
23. SANOOP, S/O.GEORGE,
PADIOTHUMPARAMBIL, SUDER NAGAR,
IRIMPANAM.P.O.
ADDITIONAL RESPONDENTS 21 TO 23 ARE IMPLEADED AS
LEGAL REPRESENTATIVES OF THE DECESED 15TH
RESPONDENT AS PER ORDER DATED 12.11.2012 ON
I.A. NO.1639 OF 2012
BY ADV. SRI.A.BALAGOPALAN )
BY ADV. SRI.A.RAJAGOPALAN )
BY ADV. SRI.M.S.IMTHIYAZ AHAMMED ) R3 & R5 TO R12
BY ADV. SRI V.N.GOPINATHAN )
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
12.11.2012 ALONG WITH R.S.A. NO.373 OF 2012, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
THOMAS P. JOSEPH, J.
--------------------------------------
R.S.A. Nos.372 & 373 of 2012
--------------------------------------
Dated this the 12th day of November, 2012.
JUDGMENT
These second appeals arise from the common judgment and decree of the III Additional District Court, Ernakulam in A.S.Nos.253 of 2006 and 265 of of 2006 which in turn arose from the common judgment and decree of the III Additional Munsiff's Court, Ernakulam in O.S.Nos.1134 of 2000 and 242 of 1994, respectively and the counter claim in O.S.No.242 of 1994.
2. The original plaintiff sued the defendants 1 and 2, his brothers and defendants 3 and 4, children of a pre-deceased brother in O.S.No.242 of 1994 for a decree for prohibitory injunction and for fixation of boundary and injunction in O.S.No.1134 of 2000. According to the plaintiff, the plaint A schedule is 9.100 cents belonging to the plaintiff as per will No.15 of 1967 (Ext.A1 is the copy of letter of administration with copy of Will) executed by the father who died on 25.05.1971. Plaint B schedule is described as a common pathway provided as per the Will. On the north of the plaint A schedule there is a pathway leading to the main road from the common pathway. On the north of that pathway is the property of defendants 1, 3 and 4. The defendants tried to annex the plaint B schedule way to their property. Hence the suit for injunction against trespass into the plaint A schedule and causing obstruction to the plaintiffs using the plaint B schedule.
RSA No.372 & 373 of 2012 2
3. In O.S.No.1134 of 2000 on the very same allegations the plaintiff prayed for fixation of boundary of plaint A schedule and prohibitory injunction.
4. The defendants resisted the suit and raised a counter claim in O.S.No.242 of 1994. They claimed that as per the Will the common pathway starts from the public road on the western side and passed in between the two items set apart to the plaintiff. The plaintiff has shown the plaint A schedule as if it is a single, compact plot. In fact it is in two blocks as per the Will. The attempt of the plaintiff is to enclose the common pathway provided as per Ext.A1 in between the two items allotted to him. The plaintiff has closed that pathway. The description of plaint B schedule is wrong. In the counter claim the defendants prayed for a decree for mandatory injunction to restore the common pathway as per the Will.
5. The trial court found that the plaint A schedule is described as if it is a compact plot allotted to the plaintiff as per the Will. The trial court found that the description of the plaint A schedule is not correct in so far as, as per the Will, the common pathway passes through the plaint A schedule. Accordingly the suits were dismissed and the counter claim in O.S.No.242 of 1994 was allowed. That judgment and decree are confirmed by the first appellate court. Hence the Second Appeal.
6. The learned counsel for the appellants/legal representatives of the deceased plaintiff has contended that the finding of the courts below that the common pathway referred to in the Will passes through the plaint A schedule is RSA No.372 & 373 of 2012 3 not correct. According to the learned counsel, the plaint B schedule is the common pathway provided as per the Will. The learned counsel has invited my attention to the sketch proved through the Surveyor.
7. It is not disputed that the D schedule in Ext.A1 is the plaint A schedule. The plaintiff when examined as PW1 has also admitted that. In Ext.A1, the D schedule is described as two items. There is no description of any pathway on the north of the said items (as now stated in the plaint and as if the plaint B schedule is that common pathway). On the otherhand, the pathway is described as on the west and east of the D schedule item No.I. Based on the description of the D schedule items (plaint A schedule) in Ext.A1, the courts below found that the common pathway left as per Ext.A1 is through the two items allotted to the plaintiff as D schedule of Ext.A1. DW1, the 4th defendant in O.S.No.242 of 1994 has given evidence that the plaintiff enclosed the pathway (referred to in Ext.A1, Will) and constructed a compound wall. The courts below have observed that the said evidence of DW1 was not challenged in cross examination on behalf of the plaintiff. The courts below also referred to the evidence of PW1, the plaintiff that the plaint schedule descriptions do not tally with the descriptions of the D schedule of Ext.A1. It is based on the above evidence that the courts below found that the plaint A schedule description is not correct and that the defendants are entitled to restoration of the pathway as referred to in the D schedule of Ext.A1.
RSA No.372 & 373 of 2012 4
8. The finding of the courts below having regard to the above circumstances is found to be based on the evidence and involves no substantial question of law.
The Second Appeals are dismissed.
All pending interlocutory applications will stand dismissed.
THOMAS P.JOSEPH, Judge.
cks