IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 21 of 1994(C)
1. DAMODARAN
... Petitioner
Vs
1. A.R.THANKAMMA
... Respondent
For Petitioner :SRI.O.RAMACHANDRAN NAMBIAR
For Respondent :SRI.GEORGE THOMAS
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :18/09/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A .NO. 21 OF 1994
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Dated 18th September 2007
J U D G M E N T
Defendants in O.S.142 of 1988 on the file of
Munsiff court, Taliparamba are appellants. Plaintiff
is the respondent. Plaint A schedule property
admittedly belongs to the respondent under Ext.A1
sale deed dated 2/12/1965. Respondent instituted the
suit contending that appellants with the consent of
plaintiff used to go towards west through the northern
boundary of their property and Alakkodu-Manakkadavu
road is only 25 meters to the east of plaint A
schedule property and plaint B schedule property is a
portion of plaint A schedule property and appellants
wanted to construct a road through plaint B schedule
property and sought consent of respondent to form a
road and no consent was granted. Contending that
appellants attempted to construct a road by force,
suit was filed seeking a decree for permanent
prohibitory injunction restraining appellants from
trespassing into the plaint B schedule property and
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forming a road through plaint B schedule property or
interfering with peaceful possession and enjoyment of
the property. Appellants in their written statement
contended that a road has been in existence for the
last 25 years through which vehicles used to be taken
towards west and appellants have been using that road
along with the general public and therefore respondent
is not entitled to the decree sought for. Learned
Munsiff appointed a Commissioner and Commissioner
submitted Exts.C1 report and C1(a) plan. Ext.C1(a) plan
shows that Alakkode-Manakkadavu road lies north-south
towards the east of plaint schedule property and a
road starts from Alakkode-Manakkadavu road which runs
towards west and reaches the plaint A schedule
property and plaint B schedule property is portion of
plaint A schedule property in continuation of that road
if the road extended further towards the west and
there is a stream on the western boundary of plaint A
schedule property and towards west in continuation of
plaint B schedule property there was a newly formed
road. Commissioner also reported that in the B schedule
property there is one electric post and granite rock
indicating that there was no road. Learned Munsiff on
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the evidence found that plaint B schedule property is a
part of panchayat road as evidenced by Ext.X1 road
register maintained by the Panchayat and Alakkode-
Manakkadavu panchayat road was formed after obtaining
surrender, evidenced by Ext.X2 series of surrender
forms and therefore respondent is not entitled to a
decree sought for in respect of plaint B schedule
property. Suit was dismissed. Respondent challenged
the decree and judgment before Sub court, Payyannur in
A.S.101 of 1990. Learned Sub Judge on re-appreciation
of evidence found that Ext.X1 only shows that entry
with regard to panchayat road was made on 11/5/1988
after the institution of the suit and Ext.X2 series do
not establish that respondent surrendered any portion
of his property and if a road was in existence as
claimed by appellants there was no necessity to give
consent in May 1988 and therefore held that case of
appellants that there was an existing road for the
last 25 years is unsustainable. Learned Sub Judge also
found that appellants have no right to construct a
road in the plaint B schedule property without the
consent or permission of respondent and appellants are
not entitled to cause any obstruction to the peaceful
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enjoyment of plaint A schedule property by respondent
and therefore granted a decree as sought for. It is
challenged in the second appeal.
2. Second appeal was admitted formulating
following substantial questions of law.
1) Whether on the facts
and circumstances of the case
plaintiff is entitled to a
decree for injunction under
Section 41 (g) of Specific
Relief Act.
2) Whether suit is
maintainable when plaint B
schedule property is used as a
road by general public and suit
is not instituted seeking
permission as provided under
Rule 8 of Order I of Code of
Civil Procedure.
3) Whether first appellate
Court was justified in granting
a decree when appellants have
been using the road as members
of general public.
3. Learned counsel appearing for appellants and
respondent were heard.
4. Arguments of learned counsel appearing for
appellants is that First Appellate Court was not
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justified in interfering with the decree of the trial
court when Ext.X1 establish that plaint B schedule
property is part of panchayat road. It was also agreed
that suit was dismissed by the trial court accepting
evidence of Dws.2 and 3 which were not considered by
First Appellate court. It was further argued that in
the plaint itself it is admitted that appellants are
using plaint B schedule property to pass towards west
with her consent and even if there is no road,
appellants are entitled to pass through plaint B
schedule property and first appellate court was not
justified in granting a decree restraining them from
passing through plaint B schedule property, especially
when no such relief was sought for in the plaint.
5. Learned counsel appearing for respondent
argued that if road was in existence as claimed by
appellants, there was no necessity for a consent or
surrender evidenced by Ext.X2 series after institution
of suit and entry in Ext.X1 only shows that a road was
formed subsequent to filing of suit and there is no
case that respondent either surrendered any portion of
plaint A schedule property or any portion of plaint A
schedule property was acquired for forming the road
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and so after filing of the suit, no road could be
formed and First Appellate Court rightly appreciated
the evidence and found that no road is in existence
through plaint B schedule property. It was also pointed
out that from the existence of an electric post,
granite rock in the plaint B schedule property noted by
the Commissioner a road could not have been in
existence and as respondent did not surrender any
portion of plaint A schedule property to form a road,
no road could be formed without an acquisition and as
there is no case of acquisition appellants cannot
construct a road through plaint B schedule property and
decree is sustainable.
6. Though it was contended that a road was in
existence for the last 25 years, evidence adduced on
the side of appellants themselves establish that no
road was in existence prior to institution of the suit
through plaint B schedule property. Admittedly,
Alakkode-Manakkadavu road lies further to east of
plaint schedule property and a road which starts from
that road runs towards west up to the plaint A
schedule property. But there is no evidence to prove
that that road is running further towards west. As
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rightly found by First Appellate court existence of
electric post, granite rock and a stream on the west
and absence of extension of that road towards further
west, establish that there was no such road through
plaint B schedule property or towards its west as
claimed by appellants. If there was such a road, then
Ext.X2 series of surrender forms would not have been
executed in May 1988 and that too for the purpose of
forming a road. It proves that till a road could be
formed making use of the surrender of land evidenced
by Ext.X2 series of surrender forms, no road could have
been formed. It is in such circumstances, First
Appellate court found that no road was in existence
through plaint B schedule property before the
institution of the suit. That finding of fact is
perfectly in accordance with the evidence and warrants
no interference.
7. Then the question is whether appellants have
a right to form a road. Unless respondent gives consent
to form a road or surrenders a portion of her
property for forming a road or a portion of plaint A
schedule property is acquired for the purpose of
forming road, no road could be constructed through
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plaint B schedule property. Appellants have no case
that there was any surrender or consent by respondent
or any acquisition to enable appellants to form a road
through plaint B schedule property. As it was contended
that a road has been formed by panchayat subsequent to
institution of suit, First Appellate court was
justified in granting a decree restraining appellants
from forming a road through plaint B schedule property
as they have no right to form a road through plaint B
schedule property.
8. Then the question is whether respondent is
entitled to decree granted by First Appellate court
either in view of Section 41 (g) of Specific Relief
Act or for the reason that respondent has consented
appellants to pass through plaint B schedule property.
9. Section 41 of Specific Relief Act provides
that injunction cannot be granted if any of the
conditions provided under sub sections(a) to (j) apply.
Under clause (g) injunction cannot be granted to
prevent a continuing breach in which the plaintiff
has acquiesced. Question is whether respondent has
acquiesced either the forming of road or making use
to any portion of plaint A schedule property as a road.
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Evidence establish that no road was in existence
through plaint B schedule property prior to the
institution of suit. Therefore no question of
acquiescence as provided under clause (g) of Section
41 arises. Argument of learned counsel appearing for
appellants is that the decree granted by First
Appellate court even restrains appellants from
passing through plaint B schedule property and as
appellants have been using that way and it was not
prevented by respondent till the date of filing of the
suit, there is acquiescence and therefore decree to
that extent is not sustainable.
10. Paragraph 3 of plaint shows that respondent
specifically pleaded that appellants 1 to 3 are owners
of the property to the west of plaint A schedule
property and they got number of entries to the house
and compound to go to west and they pass through plaint
A schedule property between the house and the
northern boundary with the consent of respondent. There
is no case in the plaint that the said consent was
withdrawn at any point of time. A reading of the plaint
shows that grievance of the respondent was only against
forming a road through plaint B schedule property as
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according to respondent, if a road is formed it would
cause difficulty and impediment to residential house
of respondent which is touching plaint B schedule
property. In the plaint respondent did not seek a
decree restraining appellants from passing through
plaint B schedule property to reach eastern Alakkode-
Manakkadavu road. In such circumstances, First
Appellate court was not justified in granting a decree
restraining appellants from passing through plaint B
schedule property. To that extent the decree granted is
to be modified. In all other respects decree granted by
First Appellate court is perfectly correct.
11. Second appeal is allowed in part. Decree
granted by Sub court, Payyannur in A.S.101 of 1990 is
confirmed with the modification that the decree will
not affect the rights of the defendants/appellants to
pass through plaint B schedule property as admitted by
in para 3 of the plaint.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.
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M.SASIDHARAN NAMBIAR,J.
JUDGMENT
S.A.NO.21 OF 1994
18th September 2007
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