IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 709 of 1996(A)
1. BAYINTE MALIYAKKAL UMMATHABI
... Petitioner
Vs
1. M/S.KANJI MORARJI
... Respondent
For Petitioner :SRI.A.A.ABUL HASSAN
For Respondent :SRI.T.A.RAMADASAN
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :01/02/2007
O R D E R
M.SASIDHARAN NAMBIAR, J
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S.A.No.709 of 1996
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Dated this the 1st day of February, 2007
JUDGMENT
Appellants are the plaintiffs and respondent, the defendant
in O.S.No.983 of 1989 on the file of Munsiff Court, Kozhikode-I.
The suit was filed seeking a decree for permanent prohibitory
injunction restraining respondent from demolishing the gates in
the B schedule property, putting up new gates or other
structures therein, altering the nature of the B schedule property
or using B schedule property except the portion on the western
side for the purpose of ingress and egress to the A schedule
property. The respondent is admittedly the tenant of a godown
in the plaint A schedule property. The way leading to the plaint
A schedule property is through plaint B schedule property.
There is a gate as entrance to the plaint B schedule property.
Respondent attempted to put up a new gate removing the old
gate. The suit was filed at that point, contending that
respondent has no right to demolish the existing gate or to put
up a new gate and the only right available to the respondent is to
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use part of the plaint B schedule property as a way to the
godown in the plaint A schedule property. Respondent in the
written statement contended that the old gate has to be replaced
for security of the godown and they sought permission of
appellants and they permitted to change the gate and so
appellants are not entitled to the decree sought for. It was
admitted by respondent that respondent has only a right of way
over plaint B schedule property to take articles to the godown. It
was also specifically pleaded in the written statement that
respondent has no intention to trespass into or reduce the plaint
B schedule property.
2. Learned Munsiff on the evidence of PW1 and DW1,
Exts. A1 & A2 and C1 & C2, dismissed the suit holding that there
is nothing to prove that respondent attempted to construct the
gate as claimed. Appellants challenged the decree in judgment
before District Court, Kozhikode in A.S.No.56 of 1992. Learned
Additional Sessions Judge on reappreciation of evidence found
that respondent has no right to change the gate and respondent
was not permitted to change the gate as claimed in the written
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statement and the only right available to the respondent is to
enter plaint A schedule property through B schedule property
and that right does not clothe him with an authority to demolish
the existing pillars or put up new structures. Learned District
Judge relying on Ext. C1 plan and C2 report submitted by the
Commissioner, found that plaint B schedule property has been
cement plastered and a net has been drawn above the entire B
schedule property and according to the respondent, respondent
was stocking copra in the godown and using B schedule property
for drying and grading the hill produces and the presence of the
net in the B schedule property justifies the claim. Learned
District Judge held that in such circumstances appellants are not
entitled to prevent respondent from using B schedule property
for the purpose of taking any vehicle to the godown for loading
and unloading purpose and for drying and grading hill produces.
A decree was granted as follows:
“A decree is granted to the appellants restraining the
respondent from demolishing any of the existing gates
or pillars in the B schedule, putting up any new gate
or other structure in it or altering the present lie and
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condition of the B schedule, by a decree of permanent
prohibitory injunction.”
3. Appellants are challenging the decree to the limited
extent contending that decree should have been granted as
prayed for and the finding of learned District Judge that
respondent is entitled to use plaint B schedule property for the
purpose of drying and grading his hill produces is against the
pleading as respondent has no such case in his written statement
and the only right claimed in the written statement was a right to
use the plaint B schedule property as a way to the godown. The
substantial question of law formulated was whether first
appellate court was justified in granting a relief to the
respondent/defendant, without pleading and proof and whether
the oral evidence of DW1 without pleading could be accepted.
4. The learned counsel for the appellants vehemently
argued that there is an unambiguous admission in the written
statement by the respondent that respondent has no intention to
trespass into the plaint B schedule property or reduce the same
into his possession and there is no pleading that plaint B
schedule property was cement plastered by respondent or walls
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have been constructed on the eastern and western boundaries of
plaint B schedule property and a net was put up over the walls or
that plaint B schedule property was being used for drying hill
produces as found by the learned District Judge and evidence of
DW1, which was not supported by pleading should not have been
accepted and respondent should not have been permitted to use
plaint B schedule property except for ingress and egress to the
godown in the plaint B schedule property. The learned counsel
argued that without appreciation of the pleading and evidence,
first appellate court virtually granted a decree in favour of
respondent by granting a decree in favour of the plaintiffs in part
and permitting respondent to use plaint B schedule property for
drying the hill produces and therefore that portion of the decree
of the appellate court is to be set aside. The learned counsel for
the respondent argued that Ext.C2 report establish that walls on
the eastern and western side of the plaint B schedule property
are having a height of more than six feet were constructed in the
plaint B schedule property and a net was put over the walls and
evidence of DW1 establish that the plaint B schedule property,
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which was plastered with cement has been used for drying hill
produces necessary in the godown in the plaint A schedule
property and therefore first appellate court rightly did not grant
a decree in favour of the appellants. It was also argued that
respondent has been using plaint B schedule property as a
drying yard for the hill produces.
5. As rightly pointed out by the learned counsel for the
appellants, there is no pleading by the respondent that plaint B
schedule property was being used for any other purpose than as
a way leading to the godown in the plaint A schedule property.
Respondent is admittedly the tenant of the A schedule property.
Appellants are not disputing the right of respondent to use a part
of plaint B schedule property as a way to the godown in the
plaint A schedule property. In fact, right of respondent to use
that part of the plaint B schedule property leading to the plaint A
schedule property as a way was admitted in the plaint itself.
When there is a godown in the plaint A schedule property and
the only way leading to the plaint A schedule property is through
plaint B schedule property, the case of respondent that
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respondent is entitled to take vehicles through the B schedule
property cannot be disputed. Learned District Judge rightly
found that respondent is entitled to take vehicle to the godown
through the plaint B schedule property and appellants are not
entitled to a decree for injunction restraining respondent from
doing so. That finding is perfectly in accordance with the
pleadings, evidence and warrants, no interference.
6. But the question is whether respondent is entitled to
use plaint B schedule property either as a drying yard or grading
the hill produces except for taking vehicle to the plaint A
schedule property. In the absence of a specific case in the
written statement that the appellants or the predecessors
permitted respondent to use plaint B schedule property as a
drying yard or grading yard of hill produces or that respondent
has been using the plaint B schedule property as a drying yard of
the hill produces, learned District Judge should not have acted
upon the interested testimony of DW1 to hold that respondent
has got a right to use plaint B schedule property for drying or
grading the hill produces. So also in the absence of pleading, on
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the ground that when the Commissioner has inspected plaint B
schedule property it was found enclosed by walls on the east and
west and a net was found placed above the B schedule property,
it should not have been found indicating a right to use the
property other than as a way. The learned District Judge on the
evidence should not found that it was constructed by the
respondent or that respondent is entitled to use the plaint B
schedule property except for using it as a way including for
taking vehicles to the godown.
7. Learned District Judge did not grant a decree in
favour of respondent. But, the finding in the judgment of
learned District Judge providing a right to use plaint B schedule
property is unsustainable. But as no decree was granted in
favour of respondent, no interference in the judgment was
warranted except clarifying the legal position. It is made clear
that the decree granted by the learned District Judge is
restraining respondent/defendant from demolishing the existing
gates or pillars in the B schedule property, putting up a new gate
or other structure or altering the present lie and condition of B
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schedule property by a permanent prohibitory injunction.
Respondent is only entitled to use plaint B schedule property, as
a way inclusive of taking vehicles to the godown in the plaint A
schedule property.
The Second Appeal is disposed of accordingly.
M.SASIDHARAN NAMBIAR,
JUDGE
csl