IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 185 of 2010()
1. A,,OMO MAOR. W/O.K.S.RAVINDRAN NAIR,
... Petitioner
2. LAKSHMIKUTTY AMMA, W/O.GOPALAN NAIR,
Vs
1. JOSEPH,S/O.MATHEW AGED 41 YEARS,
... Respondent
2. RENJITH JOHN, AGED 38 YEARS,
3. JAYAN, S/O.CHANDRASEKHARAN NAIR,
4. SMITH JAYAN, W/O.JAYAN, AGED 36 YEARS,
5. ADV.S.SUNIL KUMAR, S/O.SREEDHARAN NAIR,
6. RADHAKRISHNAN NAIR, AGED 59 YEARS,
For Petitioner :K.S.RAVINDRAN NAIR(PARTY-IN-PERSON)
For Respondent :SRI.T.J.MICHAEL
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :15/03/2010
O R D E R
THOMAS P JOSEPH, J.
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R.S.A.Nos.169 and 185 of 2010
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Dated this 15th day of March, 2010
JUDGMENT
These appeals arise from common judgment and decree of
learned District Judge, Thodupuzha in A.S.Nos.66 of 2008 and 67 of
2008, respectively confirming judgment and decree of learned Munsiff,
Thodupuzha in O.S.No.217 of 2007. The appeals are at the instance of
defendant Nos.2 and 3. Parties, for the sake of convenience are
referred to as plaintiffs and defendants as in the trial court.
2. Dispute is concerning the alignment and use of a pathway
referred to in Ext.A3, settlement deed No.3006 of 1999 executed by
defendant Nos. 2 and 3 and other members of their family As per that
settlement deed properties were settled in favour of different sharers.
The F schedule therein, 44 cents was allotted to one Radhakrishnan
from whom plaintiff Nos.1 and 2 purchased it as per Ext.A1, sale deed
No.4035 of 2006. Of the said 44 cents, plaintiff Nos.1 and 2 sold 10
cents to plaintiff Nos.3 and 4 as per sale deed No.2474 of 2007.
Plaintiff Nos.1 and 2 sold another 26 cents to one Radhakrishnan (he is
not a party to the proceeding). The remaining 8 cents of plaintiff Nos.1
and 2 situated towards the north eastern portion of the 44 cents (F
schedule in Ext.A3) is the property described in plaint A schedule. The
R.S.A.Nos.169 and 185 of 2010
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10 cents sold in favour of plaintiff Nos.3 and 4 is plaint B schedule.
According to the plaintiffs as per Ext.A1, assignment deed they are
also entitled to make use of the common pathway provided as per
Ext.A3, settlement deed No.3006 of 1999. The said pathway is
described in the plaint as C schedule. Plaintiffs say that defendants
are causing obstruction to their user of plaint C schedule and hence
the suit for prohibitory injunction. Defendant Nos.2 and 3 while
resisting the suit made a counter claim. According to defendant Nos.1
and 3, pathway described in plaint C schedule is not the one referred
to in Ext.A3, settlement deed. They would say that the pathway
referred to in Ext.A3 originated from the Vazhithala-Purappuzha road
on the extreme south, went “straight” towards north through plaint A
and B schedules, ends in B schedule of Ext.A3 and all the allottees
under Ext.A3 have right over the said way. That pathway, defendant
Nos.2 and 3 extended up to the property of defendant No.2 (E
schedule in Ext.A3 situated on the north of F schedule of that
document (which is the 44 cents, portion of which are plaint A and B
schedules). It is also the contention of defendant Nos.2 and 3 that for
their convenience they constructed a new way which is described in
the plaint as C schedule over which plaintiff have no right or interest.
In the circumstance, they prayed for a decree for prohibitory injunction
against plaintiffs using plaint C schedule way. Learned Munsiff was of
the view that plaint C schedule is the pathway referred to in Ext.A3
R.S.A.Nos.169 and 185 of 2010
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which extended only up to the B schedule in Ext.A3 set apart to the
share of defendant No.3, Lakshmikutty Amma. Ext.A3 does not say
that the said way extended further towards west to reach the E
schedule allotted to defendant No.2. Learned Munsiff also found
against the contention of defendant Nos.2 and 3 that plaint C schedule
is the new pathway formed by them and accordingly dismissed the
counter claim while a decree was granted in favour of the plaintiffs as
prayed for. Decree in favour of plaintiffs was challenged in A.S.No.66
of 2008 while dismissal of the counter claim was challenged in
A.S.No.67 of 2008. Learned District Judge has confirmed the finding of
learned Munsiff and dismissed the appeals. Hence these second
appeals urging by way of substantial questions of law whether courts
below are legally and factually correct in concluding that plaint C
schedule is the pathway referred to in Ext.A3, settlement deed and
whether courts below went wrong in not finding that plaintiffs
instituted the suit after destroying the existing pathway.
3. Appellants/defendant Nos.2 and 3 are represented by their
power of attorney holder, Sri.K.S.Ravindran Nair, a retired Engineer
vide order on I.A.No.444 of 2010, I have permitted Sri.K.S.Ravindran
Nair to address arguments on behalf of appellants/defendant Nos.2 and
3. He contends that the photographs (Ext.B1 series) taken
immediately after alleged destruction of the existing pathway would
eloquently indicate that there was such a pathway in existence as
R.S.A.Nos.169 and 185 of 2010
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referred to in Ext.A3 which has nothing to do with the plaint C
schedule. According to Sri. K.S.Ravindran Nair in the way courts below
have granted decree in favour of the plaintiffs, defendant No.2 has no
access to the property belonging to her (E schedule in Ext.A3). He has
also a contention that defendant Nos. 2 and 3 are not being permitted
to take water from the well in the tarvad property. Learned counsel for
plaintiffs in response contends that there is no acceptable evidence as
to the existence of a way other than plaint C schedule and that
contention of appellants/defendant Nos.2 and 3 that the pathway
referred to in Ext.A3 extended up to the E schedule in Ext.A3 allotted
to defendant No.2 is belied by the description of counter claim pathway
as well as Ext.A3.
4. Going by Exts.C1(a) and C2(a), plaint C schedule way starts
from Vazhithala-Purappuzha road on the extreme south, it goes
towards north, takes a slight deviation towards east and then goes
further towards north. It ends at the north eastern corner of plaint A
and B schedules (which is the north-eastern portion of B schedule in
Ext.A3). In Ext.A3 a common way originating from Vazhithala-
Purappuzha road on the south and going straight towards north is
provided for the use of all sharers under Ext.A3. But it is relevant to
note from Ext.A3 that the said pathway reached only upto the property
where B schedule house (in Ext.A3) is situated. It is also not disputed
before me that E schedule allotted to defendant No.2 as per Ext.A3 is
R.S.A.Nos.169 and 185 of 2010
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situated on the north western side of F schedule (the 44 cents acquired
by plaintiff Nos.1 and 2 as per Ext.A1). In other words going by the
description in Ext.A3, the way does not reach up to the E schedule in
Ext.A3 allotted to defendant No.2. It is also relevant to note that in the
boundary descriptions of the separate schedules in Ext.A3, except for E
schedule allotted to defendant No.2 the common way referred to in
Ext.A3 is described as a boundary. But the boundary description for E
schedule allotted to defendant No.2 as per Ext.A3 is the property
referred to in B schedule in Ext.A3 and comprised in survey
No.214/1/1, 214/2 and 214/5/2. Therefore from Ext.A3 it is not
possible to say that the common way referred to therein extended up
to E schedule referred in Ext.A3 and allotted to defendant No.2 and
hence plaint C schedule is not the way referred to in Ext.A3.
5. Yet another contention raised by the power of attorney
holder on behalf of defendant Nos.2 and 3 is that the way referred to in
Ext.A3 goes “straight” towards north while, what the Advocate
Commissioner has reported in Ext.C1(a) and C2(a) is a pathway which
starts from Purappuzha road on the extreme south, goes towards
north, takes a (slight) deviation towards east and then again goes
towards north. According to the power of attorney holder, pathway
referred to in Ext.A3 went “straight” towards north cutting across the F
schedule (part of which is the plaint A and B schedules). But, that
contention cannot be accepted for the reason that the eastern
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boundary of F schedule is given as the common pathway (referred to in
Ext.A3). Learned counsel for plaintiffs points out that even as per the
counter claim schedule described in the written statement, pathway
claimed by defendant Nos.2 and 3 does not extend to E schedule on
the north-west of plaint A and B schedules (F schedule in Ext.A3). I am
also unable to accept the contention that because the common way is
stated in Ext.A3 as “straight”, it should go like a straight line without
any deviation at all.
6. Yet another contention is that Ext.B1 series, photographs
which according to the power of attorney holder were taken
immediately after the filing of the suit and after the plaintiffs
(allegedly) interfered with the existing pathway would show that the
pathway referred to in Ext.A3 was destroyed by the plaintiffs. Plaintiffs
have an explanation that there was no such interference on any such
pathway and instead, at a time when plaint C schedule was not usable
as it was slippery in rainy season some alternative access was used.
Whatever be the correctness of that explanation, in the light of what I
have stated from the description in Ext.A3, I am unable to accept the
contention that plaint C schedule is not the way referred to in Ext.A3
and that instead, it is the exclusive way of defendant Nos.2 and 3. This
court while considering the second appeal is concerned only with
substantial question of law involved. True, a finding of fact if perverse
or is not supported by any evidence involved a substantial question of
R.S.A.Nos.169 and 185 of 2010
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law. Courts below have found against case of defendant Nos. 2 and 3
with reference to the relevant recitals in Ext.A3 and the evidence.
Courts below have only protected the right of plaintiffs to sue plaint C
schedule way. The decree does not affect the right of
appellants/defendant Nos.2 and 3 to use the said way. Decision of the
courts below is based on the evidence on record. In the circumstance,
I am inclined to think that there is no substantial question of law
involved in the appeals requiring admission.
7. So far as grievance of appellants/defendant Nos. 2 and 3 as
to their right to draw water from the well in the tarvad property which
the power of attorney holder says have been in use for the last 150
years is concerned, that is not the subject matter of the suit. If
appellants/defendant Nos.2 and 3 have any such right and that is
infringed they can seek appropriate reliefs in appropriate proceeding.
With the above observations the second appeals are dismissed
in limine.
THOMAS P JOSEPH,
JUDGE
Sbna/