Kerala High Court
John Varghese(Pazhampallil) vs Sweena Anna Thomas on 8 November, 2013
Equivalent citations: AIR 2014 KERALA 1, (2014) 137 ALLINDCAS 338 (KER), (2013) 4 KER LJ 579, (2013) 4 KER LT 130
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
FRIDAY, THE 8TH DAY OF NOVEMBER 2013/17TH KARTHIKA, 1935
FAO.No. 316 of 2010 ( )
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AGAINST THE JUDGMENT IN AS 86/2007 of D.C & SESSIONS
COURT,TRIVANDRUM
AGAINST THE JUDGMENT IN OS 1785/2004 of PRL.M.C.,TRIVANDRUM
APPELLANT/RESPONDENT/DEFENDANT:
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JOHN VARGHESE(PAZHAMPALLIL), SANTHOSH
BHAVAN, KELIND LANE, PARUTHIPPARA
THIRUVANANTHAPURAM.
BY ADVS.SRI.RAM MOHAN.G.
SRI.G.P.SHINOD
SRI.MANU V.
RESPONDENT/APPELLANT/PLAINTIFF:
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SWEENA ANNA THOMAS, D/O.THOMAS.K.JACOB,
JAITHA, PARUTHIPPARA, THIRUVANANTHAPURAM
REP.BY HER FATHER AND POWER OF ATTORNEY HOLDER
THOMAS K.JACOB, RESIDING AT JAITHA, PARUTHIPPARA
THIRUVANANTHAPURAM.
R,R1 BY ADV. SRI.MATHEW SKARIA
R,R1 BY ADV. SRI.K.J.JOSEMON
R,R1 BY ADV. SRI.JOY JOSEPH (MUNDACKAL)
R,R1 BY ADV. SRI.SUJESH J.MATHEW
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD
ON 08-10-2013, THE COURT ON 08-11-2013 DELIVERED THE FOLLOWING:
"CR"
S.S.SATHEESACHANDRAN, J.
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F.A.O.No.316 OF 2010 ()
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Dated this the 8th day of November, 2013
J U D G M E N T
~~~~~~~ Order of remand passed by the learned District Judge, Thiruvananthapuram reversing the decree of dismissal passed in a suit for injunction and remitting the case for fresh disposal, is challenged in this appeal. Defendant in the above suit is the appellant, and respondent, the plaintiff.
2. Parties are referred to as plaintiff and defendant hereinafter. Short facts necessary for disposal of the appeal can be summed up thus:
Suit was for injunction, both prohibitory and mandatory. Plaintiff claimed title and possession over plaint schedule property having an extent of eight cents under two settlement deeds, Exts.A2 and A3, executed by her grandmother. Plaint property according to plaintiff formed part of 20 cents lying behind the property of the F.A.O.No.316/2010 2 husband of executant of Exts.A2 and A3, situate to the east of M.C.Road. The only access to the plaint property is through a gate installed on its eastern compound wall, to a pathway leading to Kelind line situate on its east. Blocking that gate defendant, adjacent property owner, had put up a wall and, later, he unauthorisedly constructed a car shed demolishing the mud wall separating his property with the plaintiff, was her case. For removal of the wall put up blocking the gate and the car shed illegally constructed, and for restoration of the separating compound wall of the two properties, plaintiff filed the suit seeking the decree of injunction.
3. Defendant resisted the suit questioning the title deeds, Exts.A1 and A2, as sham documents and disputing the right claimed by plaintiff over the pathway leading to Kelind line from the eastern side of her property. Defendant contended that the pathway over which plaintiff claimed right formed part of 83 cents in Survey No.618 belonging to F.A.O.No.316/2010 3 the predecessors of his transferor in Ext.B2 sale deed. According to defendant when a partition was effected by his transferor with her sister under Ext.B1 deed excluding the properties already transferred, a pathway was provided for their convenient enjoyment of the divided items. Defendant under Ext.B2 sale deed obtained 6.625 cents of land from one among the sharers in Ext.B1 partition deed and that property is situate on the north western side of the pathway provided under that partition deed. Over the pathway plaintiff has no right and the documents obtained in her favour, Exts.A2 and A3, were fraudulently created to set up a claim over the private pathway was his case contending that to the existing temporary car shed in his property some maintenance works alone were done. Allegations imputed over the blocking of gate, destruction of compound wall separating the properties of plaintiff and defendant, construction of car shed etc. were also repudiated by defendant.
F.A.O.No.316/2010 4
4. Suit was dismissed by the learned Munsiff, after trial, holding that the plaintiff was not entitled to the decree of injunction applied for. In the appeal by plaintiff after re-appreciating the pleadings and evidence learned District Judge upsetting the findings entered by the Munsiff reversed the dismissal of the suit and remitted the case for fresh disposal with some directions. Impeaching the correctness of that Order, the defendant has preferred this appeal.
5. I heard the counsel on both sides.
6. After going through the pleadings of parties and also materials tendered, with reference to the submissions made by counsel, I find that the one and only issue that required to be considered and decided by the court in the suit was not taken note of either by the trial court or lower appellate court even when it reversed the decree of dismissal and remitted the case for fresh disposal. What was in dispute to be adjudicated upon related to the right claimed by plaintiff over a pathway situate on the eastern F.A.O.No.316/2010 5 side of her property which led to Kelind line. Access to the pathway from the gate installed on the eastern boundary of her property was blocked by defendant putting up a wall, and he had put up an unauthorised car shed in violation of building rules and demolished the mud wall separating the properties belonging to the two parties, was the case of plaintiff for removing such constructions by mandatory injunction, and, also for prohibitory injunction to enable her to use the pathway unobstructed after such removal. Apart from the contentions raised disputing the title deeds of the plaintiff as sham documents the suit was resisted by defendant contending that the plaintiff has no specific case whether the pathway is a public way or a private way, and also of any right of easement to enjoy that way. Some complaints filed by plaintiff before police and panchayat, copies of which were produced with the plaint, were banked upon by the defendant before the trial court to contend that the pathway was claimed as a public way but, without any F.A.O.No.316/2010 6 particulars or proof over its dedication to the public. Relying on Ext.B1 it was also contended that the pathway was carved out when a partition was effected by his transferee and her sister. Learned Munsiff found merit in those objections to nonsuit the plaintiff, which in appeal was reversed by the lower appellate court.
7. Plaintiff has not scheduled the pathway with respect to which the decree of mandatory and prohibitory injunction was canvassed in the suit, but, only the property of eight cents covered by her title deeds. District Judge has held that inclusion of description of that pathway in the plaint over which decree is applied for has to be made, and plaintiff has to be given an opportunity to file an amendment application. A further direction was also given by the District Judge referring to some authorities over claiming of right of easement by prescription, that plaintiff has to amend the plaint specifying the nature of right claimed by her over the pathway. Unless the plaintiff F.A.O.No.316/2010 7 specifically pleaded whether her right is over a public pathway or right of easement over a private way she cannot be granted the decree of injunction applied for was the reasoning of learned District Judge to give directions as indicated above providing opportunity to plaintiff to amend the plaint specifying her right over the pathway.
8. I have already indicated that the dismissal of the suit by the learned Munsiff was also more or less on the same line that the plaintiff has not specifically claimed the right over the pathway showing it as a public way or by prescriptive easement over the land owned by defendant. Both the courts have not taken note of the crux of the issue involved over the right claimed by the plaintiff in the pathway with reference to admitted facts and documentary evidence tendered in the case.
9. Plaint schedule property having an extent of eight cents on its east has access to the pathway which leads to Kelind line but for a wall, allegedly, put up by F.A.O.No.316/2010 8 defendant blocking the gate on the eastern boundary of that property, is borne out by the commission reports, Exts.C1 and C2. Existence of a gate in the eastern boundary of plaint property which was disputed by defendant, is amply proved. Even assuming that no such gate existed whether the defendant has any right to put up any wall blocking portions of the plaint schedule property having access to the pathway is a question that necessarily has to be considered to examine the right claimed by plaintiff to use that pathway. Where a person has a common boundary with a pathway beside his property unless that pathway is shown to be the private property of another, normal rule is that he can make use of that pathway for enjoyment of his property. Plaintiff's definite case is that the only access to her property is through the pathway situate on the eastern side which leads to Kelind line. I do note that in the plaint allegations the pathway is also referred to as Kelind line. Whatever that be, we are concerned only with the question F.A.O.No.316/2010 9 whether the plaintiff has the right to use the pathway which is stated to be the only access to her property. Should she plead and prove that her right to use the pathway is under a right of easement obtained by prescription or that it is public way by dedication or otherwise. If she fails to establish any one of the above two aspects, then, her suit has to fail seems to be the reasoning followed by both the courts below. If any portion of the pathway is owned by defendant, no doubt she has to establish one of the two aspects aforementioned. If we go by Exts.B1 and B2 documents it is crystal clear that the right conferred on defendant over the pathway is only for enjoyment of property, having an extent of 6.625 cents transferred to him, situate to the north west of the pathway. Defendant and purchaser of the adjacent property on the eastern side of pathway from the successors of the sharer under Ext.B1 partition deed, both of them, are not conferred with any ownership over the pathway. Ext.B1 partition deed would F.A.O.No.316/2010 10 show that the pathway had been carved out earlier even before execution of that deed, for convenient enjoyment of the properties. The right to make use of that pathway without any proprietary title thereto alone was transferred to the defendant under Ext.B1 sale deed. The terms stipulated under Ext.B2 deed would indicate that all transferees of the parties thereto have indefeasible rights to use that pathway. Defendant who has obtained a portion of the property covered by Ext.B2 which was allotted to one of the two sharers has no proprietary title over the pathway and as such no question of the plaintiff setting up any claim of easement against the defendant would arise for consideration. Then the question is whether the plaintiff has to establish that the pathway has been dedicated to public and it was enjoyed by her as a public way to sustain the suit claims, or, only, that she has been using it as of right to enjoy her property. Here also it has to be noted that if we go by Ext.B2 all the transferees under the two shareholders F.A.O.No.316/2010 11 or their successors, on the stipulations made under that deed have right to use that pathway, its entire extent, without obstruction from any other transferee. Proprietary title over the pathway is not given to the transferees but only right to use alone for enjoyment of properties beside the pathway transferred to them. Where defendant is not the owner of any portion of the pathway but only a transferee of a portion of the property situate on north west of that pathway, who has been given right to use the pathway alone, the plaintiff need not plead or prove any prescriptive right of easement by prescription over such pathway. When that be the case, where plaintiff who has a common boundary with the pathway with a gate already put up on such boundary comes before the court with a suit that her access to the property is only through the pathway and its use enjoyed as of right had been obstructed by the defendant putting up a wall blocking the gate, and also by unauthorised construction of a car shed, necessarily, the right so claimed by her to use the pathway F.A.O.No.316/2010 12 with that of the defendant, to cause any obstruction to such use, has to be scrutinised. Defendant can cause obstruction to the use of the pathway by plaintiff only if he has a legal right to do so. In the given facts of the case plaintiff need not establish that the pathway had been dedicated to the public as a public way. She need only show that she has been using the pathway as of right and it was obstructed by the defendant who has no right to cause such obstruction. Right to use the pathway through the portions of her property where it is touching the pathway when she claims of no other way of access to her property has to be considered in the backdrop that the defendant under Ext.B2, a purchaser of a portion of the property situate beside the pathway, has only a right to use the pathway and nothing more. That being so, I find the reasoning taken and direction given by the learned District Judge while remitting the case that the plaintiff has to amend the plaint to specify her right over the pathway to claim the reliefs canvassed in F.A.O.No.316/2010 13 the suit is not correct. However an amendment describing the pathway including it as a separate schedule in the plaint is necessary, and, opportunity has to be provided to the plaintiff to seek such amendment. On such amendment applied and allowed, the defendant is also to be provided opportunity to file additional written statement, but, only over correctness of the description of the pathway. Parties should also be provided an opportunity to take out a fresh commission to ascertain matters required for fair adjudication and disposal of the suit.
Remand order passed by the District Judge, subject to the observations and modifications made as indicated, is to be confirmed, and I do so. Learned Munsiff shall make every endeavor to dispose the suit as expeditiously as possible, but, after giving opportunity to plaintiff to amend the plaint to include the schedule description of the pathway and both parties to give further evidence, if any, in the case.
F.A.O.No.316/2010 14
Parties are directed to appear before the Munsiff Court on 2.12.2013.
Appeal is disposed as indicated directing both sides to suffer their costs.
Sd/-
S.S.SATHEESACHANDRAN JUDGE ps/4/11 //True copy// PA to Judge