High Court Kerala High Court

Narayanan Nair vs Karthiyayani Amma on 29 March, 2010

Kerala High Court
Narayanan Nair vs Karthiyayani Amma on 29 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA.No. 875 of 2007()


1. NARAYANAN NAIR, S/O. GOVINDA PILLAI,
                      ...  Petitioner
2. THANKAMMA, W/O. MADHAVA KURUP,
3. AJI, S/O. THANKAMMA,

                        Vs



1. KARTHIYAYANI AMMA, D/O. LATE KUNJAMMA,
                       ...       Respondent

2. RAJENDRAN, S/O. RAGHAVAN,

                For Petitioner  :SRI.VINOD J.DEV

                For Respondent  :SRI.S.MOHANAN

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :29/03/2010

 O R D E R
                         THOMAS P JOSEPH, J.

                    ----------------------------------------

                         R.S.A.No.875 of 2007

                    ---------------------------------------

                 Dated this 29th day of March, 2010

                                JUDGMENT

Heard both sides.

2. Defendant Nos.1,2 and 4 are the appellants before me.

They are aggrieved by the judgment and decree of learned Additional

District Judge-I, Mavelikkara in A.S.No.8 of 2002 granting decree in

favour of respondent No.1/plaintiff by reversing judgment and decree

of trial court which dismissed the suit. According to the plaintiff, she

got the suit property as per Ext.A1, partition deed No.3768 of 1959

and on its north is the Panchayath road. On the west and south of the

suit property there are pathways used by the neighbouring people

including defendants who owned property on the further south.

Plaintiff apprehended that defendants might trespass into the suit

property and cut open a new pathway along its eastern side for access

to the Panchayath road on the north. Hence the suit for decree for

prohibitory injunction. Appellants/defendant Nos.1, 2 and 4 contended

that plaint schedule description takes in puramboke way used by

defendant Nos.1, 2 and 4 along eastern portion of the suit property.

That pathway has width of 5 feet and originated from the panchayath

road on the northern side. Trial court on the strength of Ext.B1, survey

plan and report of Advocate Commissioner took the view that along the

R.S.A.No.875 of 2007 2

eastern portion of the suit property there was puramboke land along

the eastern portion of the suit property and dismissed the suit. In

appeal at the instance of respondent No.1/plaintiff, learned Additional

District Judge held that Exts.C1 to C3 do not show existence of any

such pathway along the eastern side of the suit property which was

being used by the appellants/ defendant Nos.1, 2 and 4 and others.

On that finding, first appellate court reversed judgment and decree of

the trial court and granted decree in favour of appellants/defendant

Nos.1, 2 and 4 as prayed for, but making it clear that judgment and

decree will not be a bar for defendants moving appropriate authorities

for removal of the encroachment if any made by the plaintiff in

“puramboke” land and restore the “puramboke” way, if any, in

existence in accordance with law. Learned Additional District Judge

also made it clear that the judgment and decree will not be a bar for

the Government authorities to remove the encroachment, if any, made

in “puramboke” property by the plaintiff in accordance with law. That

judgment and decree are under challenge in this second appeal raising

by way of substantial question of law whether first appellate court was

justified in reversing judgment and decree of the trial court. It is

submitted by counsel on both sides that after passing of the impugned

judgment and decree, panchayath has taken steps to take possession

of the disputed ‘puramboke’ land against which respondent

No.1/plaintiff has filed O.S.No.224 of 2008 impleading all the necessary

R.S.A.No.875 of 2007 3

parties including appellants/defendant Nos.1, 2 and 4 and praying for a

declaration that there is no ‘puramboke’ land on the south or east of

the property belonging to respondent No.1/plaintiff and for other

consequential reliefs. Learned counsel for appellants/defendant Nos.1,

2 and 4 contended that in the light of the above development

judgment and decree under challenge may be made subject to the

result of O.S.No.224 of 2008. Learned counsel also requested for a

direction for early disposal of O.S.No.224 of 2008. I have heard

learned counsel for respondent No.1/plaintiff also.

3. In the light of the safeguards already made by the learned

Additional District Judge in the judgment and decree under challenge it

is not necessary to make any further direction as prayed for by the

learned counsel for appellants/defendant Nos.1, 2 and 4. If ultimately

in O.S.No.224 of 2008 it is held that there is puramboke land as

claimed by the panchayath or other authority and if such portion is left

open as pathway, there can be nodoubt that the appellants would have

right of access along the said portion. That is a consequence of the

decision to be rendered in O.S.No.224 of 2008 and what the

Government or panchayath authorities proposed to do with respect to

the alleged ‘puramboke’ land. On going through the judgment and

decree of learned Additional District Judge I do not find any substantial

question of law involved in this second appeal requiring its admission.

4. So far as prayer for direction for early disposal of

R.S.A.No.875 of 2007 4

O.S.No.224 of 2008 is concerned, I do not consider it necessary to

issue any such direction while disposing of this appeal. It is open to

the parties concerned to request the court where O.S.No.224 of 2008

is pending for early disposal of that suit.

In the light of what I have stated above and subject to the

observations made above the second appeal is dismissed in limine.

THOMAS P JOSEPH,
JUDGE

Sbna/