IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 100 of 2007()
1. RAGHAVAN, AGED 78 YEARS,
... Petitioner
2. R.MANILAL, S/O.RAGHAVAN,
Vs
1. BENNY, S/O.ULAHANNAN,
... Respondent
For Petitioner :SRI.N.NEELAKANDHAN NAMBOODIRI
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :26/06/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.Nos. 100 & 101 OF 2007
............................................
DATED THIS THE 26th DAY OF JUNE, 2007
JUDGMENT
Appellants in R.S.A.100 of 2007 are defendants in O.S.201
of 2004. First appellant therein is the appellant in R.S.A.101 of
2007. Respondent in R.S.A.100 of 2007 is the first respondent
in R.S.A.101 of 2007. Appellant in R.S.A.101 of 2007 is the
plaintiff in O.S.212 of 2003 and respondent in R.S.A.100 of 2007
is the plaintiff in O.S.201 of 2004. The appellant instituted
O.A.212 of 2003 seeking a decree for permanent prohibitory
injunction contending that plaint A schedule property belongs to
him and plaint B schedule property is the way(road) which
exclusively belong to him and respondents have no right over the
same and therefore respondents are to be restrained by a
permanent prohibitory injunction. Respondent in R.S.A. 100 of
2007 instituted O.S.201 of 2004 contending that plaint B
schedule way was formed by the owners of respective properties
including the appellant by surrendering a portion of their
property under Ext.B1 and B4 agreements and defendants
therein have no right to obstruct his right to use that road and
therefore they are to be restrained by a decree for injunction.
RSA 100 & 101/2007 2
The suits were tried separately. Learned Munsiff in O.S.201 of
2004 found that the road has been formed not by the appellant
but including the assignor of respondent and defendants therein
are not entitled to obstruct his right to use the way. A decree
for permanent prohibitory injunction restraining appellants from
obstructing plaint B schedule property being the road to plaint
A schedule property belonging to respondent was granted. In
O.S.212 of 2003, learned Munsiff, relying on the evidence
including the report submitted by Commissioner, found that
there is an existing road and it was formed not exclusively by the
plaintiff but by the assignor of the respondent also. Learned
Munsiff therefore held that appellant is not entitled to a decree
for permanent prohibitory injunction. That suit was dismissed.
Appellant challenged the said decree and judgment before
District Court, Thodupuzha in A.S.269 of 2004. The decree
granted in O.S.201 of 2004 was challenged in A.S.45 of 2006.
Learned Additional District Judge heard both appeals together,
as the dispute was with regard to the very same road. Learned
Additional District Judge, on appreciation of evidence, found that
report of the Commissioner establish that there is a well defined
road as claimed by the plaintiff in O.S.201 of 2004 and plaintiff
in O.S.212 of 2003 is not entitled to the decree for injunction and
RSA 100 & 101/2007 3
plaintiff in O.S.201 of 2004 is entitled to the decree for
injunction. Appeals were dismissed. It is challenging the decree
and judgment of first appellate court these appeals are filed.
R.S.A.100 of 2007 was filed challenging the concurrent decree in
O.S.201 of 2004 and R.S.A.101 of 2007, the concurrent decree in
O.S.212 of 2003.
2. Learned counsel appearing for the appellants and
learned counsel appearing for respondents, who appeared
pursuant to a notice issued before admission were heard. The
argument of the learned counsel appearing for appellant was
that though courts below found that there is an existing road
relying on Ext.C1 report and the evidence, the exact width of the
road was declared and the road described in plaint B schedule
property in O.S.201 of 2004 is in fact having less than the width
of the road reported by the Commissioner in Ext.C1 report and
without demarcating the exact width of the road, courts below
should not have granted a decree for injunction restraining
appellants from obstructing the road, as it would be an
encroachment into a portion of the plaint A schedule property
belonging to the appellants. It was also argued that though
Ext.B4 shows that agreement was relied on by courts below,
Ext.B4 shows that a survey sketch was appended to the
RSA 100 & 101/2007 4
agreement and the same was not produced and Ext.B4(a) shows
that parties have not signed in the sketch and therefore Ext.B4
(a) is not the sketch appended to Ext.B4 agreement and
therefore on the strength of Ext.B4(a) courts below should not
have granted the decree. Learned counsel further argued that
appellant is entitled to make use of his property and by
encroaching a portion of that property to the existing road,
respondents are not entitled to seek a decree for injunction.
3. Learned counsel appearing for respondents argued that
the courts below on the evidence found that much before the
suits were filed there existed a road as reported by the
Commissioner and that road as found by the Commissioner in
Ext.C1 report, is having more width than the width of the road
described in plaint B schedule and in such circumstances
appellant is not entitled to get a decree for injunction in respect
of a portion of the road and appellant is not entitled to obstruct
the use of the road as the road was formed by the assignor of the
respondent also.
4. On hearing learned counsel appearing for both sides and
going through the judgments of the courts below, I do not find
any substantial question of law involved in the appeal. The
appellant instituted O.S.212 of 2003, seeking a decree for
RSA 100 & 101/2007 5
injunction contending that plaint B schedule way therein
exclusively belong to the appellant and respondents have no
right to use the way and therefore appellant is entitled to get a
decree for injunction. As per the description of plaint B schedule
way in O.S.212 of 2003, the way which is also shown as the road
has a width of 5 feet and a length of 33 metres. Ext.C1 report
shows that the road is having a width of about 15 feet and that
road was in existence much prior to the institution of the suit.
Courts below, on the evidence found that the said road was
formed by utilising the property surrendered under Ext.B1
agreement which connects the road to the existing public road.
Ext.B4 establish that road was further extended upto the
property of respondent and his assignor was one of the
executants under Ext.B4 agreement. Courts below also found
that even when the appellant was examined as PW1, he admitted
that he and his son executed Ext.B4 agreement and had affixed
their signature on each pages of Ext.B4 agreement. Evidence
also establish that Manilal, son of appellant is an Inspector in
Sales tax department. Therefore it cannot be believed that
without realising the contents of Ext.B4 agreement, they
subscribed their signature to Ext.B4. Ext.B4 establishes that a
road in continuation of the road formed after surrender
RSA 100 & 101/2007 6
evidenced by Ext.B1, was made and that road reaches the
property of the respondent. Ext.C1 report establishes that, that
road is having much more width than what is shown in the plaint
B schedule in O.S.201 of 2004 or the width of the road shown in
O.S.212 of 2003. As the existence of the road even prior to the
institution of the suit having more width than what was
described in O.S.212 of 2003 was established, courts below were
perfectly justified in not granting a decree for injunction sought
for by the appellant. Even though the argument of learned
counsel appearing for appellant was that as the exact width of
the road was not declared by the courts below, plaintiff in
O.S.201 of 2004 should not have been granted a decree for
injunction. When appellant admitted in the plaint itself that there
is a road and a decree for injunction is sought in respect of the
remaining portion of plaint A schedule property, plaintiff in
O.S.212 of 2003 should have taken out a Commission to
demarcate that road so that actual width of the road could have
been fixed. Without doing so appellant is not entitled to contend
that respondents are not entitled to the decree for injunction
granted in O.S.212 of 2003. Ext.C1 report shows that the
existing width of the road is much more than the plaint B
schedule property shown in O.S.201 of 2004. When Ext.A4
RSA 100 & 101/2007 7
establishes that the road was formed by surrendering portions
of the property by the executants of Ext.B4 agreement, including
assignor of the respondent, respondent is entitled to make use of
that road and appellant is not entitled to obstruct the same. As
evidence establish that the existing road is having more width
than plaint B schedule property described in O.S.201 of 2004, I
do not find any reason to interfere with the decree granted in
O.s.201 of 2004 also. The argument of learned counsel
appearing for appellants is that respondent is not entitled to
make use of, more extent than the width of the road shown in
plaint B schedule property. As the evidence would establish that
part of plaint A schedule property belonging to the appellant has
already been converted into part of the existing road, if at all the
remedy of the appellant is only to seek recovery of possession of
that portion of the road establishing his title. As no substantial
question of law arises, the appeals are dismissed.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-