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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.

(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.