IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 636 of 2010()
1. M.J.JOSEPH, AGED 72 YEARS,
... Petitioner
Vs
1. SASIKALA, AGED 51 YEARS,
... Respondent
2. PADMINI AMMA, AGED 61 YEARS,
3. NABEESHA UMMA, AGED 60 YEARS,
For Petitioner :SRI.S.CHANDRASENAN
For Respondent :SRI.ROY CHACKO
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :01/10/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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R.S.A.NO.636 OF 2010
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Dated this the 1st day of October, 2010
J U D G M E N T
Defendant is the appellant. Concurrent decision rendered
by the two courts below granting a decree of perpetual
prohibitory injunction in favour of the respondents against the
appellant/defendant is challenged in the second appeal.
2. Plaint schedule property in respect of which injunction
was sought for, is a pathway over which the plaintiffs claimed
exclusive right on the basis of title. That property originally
belonged to one Kamala Bai and her children and by an
assignment deed executed by them, the vendors of the plaintiffs
obtained possession thereof under Ext.A1 deed and, later, by
virtue of Ext.A2 deed in favour of the plaintiffs, they got title,
possession and enjoyment over the property, was their case. The
appellant/defendant, a neighbouring property owner beside the
plaint schedule pathway, has no right over such pathway but he
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made attempts to destroy the seperating fence on the southern
side of his property with the plaint schedule, after making a road
through his property so as to join it with the plaint pathway, for
the purpose of disposing of his property after effecting division
of it in plots, was the case of the plaintiffs for the relief of
injunction set up in the suit. The defendant resisted the suit
contending that the plaint schedule is a public way over which
the plaintiffs have no exclusive right. It is further contended
that the plaint schedule way connects two public roads, one on
the east and the other on the west. On the materials tendered in
the case by both sides, which consisted of PW1 and Exts.A1 and
A2 for the plaintiffs, DW1 and Exts.B1 and B2 for the defendant
and Exts.C1 to C5, the reports and plan prepared by an Advocate
Commissioner, the trial court upheld the claim of the plaintiffs
negativing the defenses canvassed to resist the suit claim.
Decree passed by the trial court challenged in appeal by the
defendant, after re-appreciation of the pleadings and evidence of
the parties, was confirmed without any modification by the lower
appellate court.
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3. I heard the learned counsel for the appellant. Both the
courts below have misread, misappreciatied and misconstrued
the evidence tendered in the case and that has led to forming
wrong conclusion resulting in manifestation of injustice, is the
submission of the learned counsel for the appellant for
entertaining this appeal and for its disposal on merits after
collecting the records of the case. Even Ext.A2 title deed of the
plaintiffs on which, the suit claim for injunction was canvassed,
clearly spells out that the plaint schedule is lying as a way and
right of enjoyment over the same is not confined to the plaintiffs
but to others as well, according to the counsel. Not only the
plaintiffs but the public in the locality including the defendant
have the right to use the pathway and there is evidence on
record that the pathway joins at least a public road on its eastern
side, according to the counsel. Overlooking the challenge raised
that the suit is bad for non-joinder of necessary parties, the
courts below have wrongly granted a decree in favour of the
plaintiffs, according to the counsel.
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4. After going through the judgments rendered by the
courts below with reference to the submissions made by the
learned counsel for the appellant, it is seen that the findings of
fact concurrently made by such courts based on the materials
tendered in the case to grant the relief of injunction to the
respondents/plaintiffs do not suffer from any infirmity, leave
alone, give rise to any substantial question of law in the case for
determination by this Court, which is essential to entertain a
second appeal, as covered by Section 100 of the Code of Civil
Procedure. Even the boundary description in title deeds of the
defendant and his wife, over their properties adjoining to the
plaint schedule pathway, it has been found by the lower
appellate court, negatived the defense of the defendant as to
having any right over that way. Plaintiffs had purchased the
property covered by plaint schedule, to use it as a way for
reaching their properties situate nearby, and in the conveyance
deed executed in their favour (Ext.A2), a reservation had been
made that their vendors can also make use of it, it is seen, was
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canvassed by the defendant to contend that the pathway does
not belong to the plaintiffs alone but to others as well. Both the
courts below have rightly and correctly repelled such a defense
canvassed by the defendant to claim right over the pathway as
the reservation in Ext.A2 document in favour of the vendors for
use of the pathway is enjoyable by them and they alone, to have
access to their property situate nearby. The defendant
contended that the plaint schedule is a public way, but, he did
not produce any scrap of paper to show that there was
dedication of the pathway to the public, which is shown to be a
registered holding as under ExtsA1 and A2 deeds. The Advocate
Commissioner, who conducted local inspection has reported that
the plaint schedule pathway which is connected to a public road
in the east, terminates beside a canal in the west, negativing the
defense canvassed by the defendant that to in the west also it is
connected to a public road. Though the defendant has filed
objections to the commission report, he did not take any steps to
examine the Commissioner nor make an attempt to substantiate
his objections. The lower appellate court has taken note that in
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Exts.B1 and B2, by which, the defendant has obtained property
to the south of the plaint schedule pathway, the description of
such properties in the documents is silent as to having any public
way or even a way on its northern side. In Ext.B2 document,
which related to the property purchased by the wife of the
defendant, the description of the northern boundary of that
property, it has been noticed by the lower appellate court, is
shown as the property of Kamala Bai and her children, the
executants of Ext.A1 sale deed. The defendant’s wife purchased
the property from Kamala Bai and others, and if at all any way or
road separated the properties so purchased from the rest of the
property of the vendors situate on the northern side, definitely, it
would have reflected in her sale deed. In Ext.B2 document the
northern boundary is shown as the properties of the vendors,
Kamala Bai and others. Ext.A1 sale deed was later executed by
Kamala Bai and another in favour of T.M.Sebastian and others,
the vendors of Ext.A2 sale deed. It is evident that Kamala Bai
and others had conveyed a portion of their registered holding
situate on the northern side of the property covered by Ext.B2
RSA.NO.636/2010 7
sale deed, under Ext.A1 deed to the vendees therein. The
vendees under Ext.A1 deed had conveyed whatever rights they
had obtained over the plaint schedule in favour of the plaintiffs
under Ext.A2 sale deed, but reserving right for them and also
their assignees to use it as a pathway to reach their properties
situate nearby. No material worth mentioning was tendered by
the defendant to show that the plaint schedule, which continued
as a registered holding of the executants of Ext.A1 deed, was
dedicated to the public or any member of the public to make use
of that way as of right. In such circumstances, the decree
granted by the trial court, which was confirmed by the lower
appellate court as well, deserve only to be upheld. There is no
merit in the appeal, and, hence, it is dismissed.
S.S.SATHEESACHANDRAN
JUDGE
prp
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