IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 141 of 2010()
1. JOSE, AGED 70,
... Petitioner
2. THOMAS, S/O.THOTTIAN PAILAN,
3. ROSSY, W/O.THOTTIAN VARGHESE,
Vs
1. ANTONY, S/O.VALATHIPARAMBIL
... Respondent
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent :SRI.K.S.BHARATHAN
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :29/11/2010
O R D E R
HARUN-UL-RASHID,J.
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F.A.O. NO.141 OF 2010
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DATED THIS THE 29TH DAY OF NOVEMBER, 2010
JUDGMENT
Defendants in OS.No.291/2001 on the file of the
Principal Munsiff’s Court, Irinjalakuda are the appellants. The
order of remand passed by the Principal Sub Court, Irinjalakuda in
A.S.No.37/2009 is under challenge.
2. The respondent herein as plaintiff filed the suit for
perpetual prohibitory injunction. Admittedly, the plaint A schedule
property belongs to the plaintiff. It is the plaintiff’s case that plaint
B schedule is the way provided to plaint A schedule and other
items of properties in the partition deed. The parties are near
relatives. The property was partitioned in the year 1966. The
plaintiff’s mother and the defendants’ predecessors are parties to the
partition deed. It is also the plaintiff’s case that B schedule is the
way ear-marked for ingress and egress to plaint A schedule
property and that it starts from the Panchayat road towards east and
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leads to the plaintiff’s property and the property of the defendants
on the east of the plaint A schedule property.
3. The defendants denied the plaint averments and
contended that the way mentioned in the partition deed ends on the
property of the 3rd defendant. According to them, access to plaint A
schedule property is possible through the flanges in the properties
lying on the south, east and north of the plaint A schedule property
and that the plaintiff as well as the predecessors have been using
the flanges for access to plaint A schedule property. In short, the
contention is that the way mentioned in the partition deed does not
reach plaint A schedule property. The defendants also filed counter
claim seeking a decree of prohibitory injunction restraining the
plaintiff and his men from trespassing into the defendants’ property
or for making a way through their properties
4. The trial court as well as the Appellate Court read the
relevant provisions in the partition deed. The trial court having
analysed the evidence and considered the contentions raised by
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both sides, held that the plaintiff has not succeeded in proving that
the 2 kole wide way provided by Ext.A1 extends to plaint A
schedule property and that the plaintiff is not entitled to the relief
claimed in the plaint. The trial court also considered the counter
claim on merits and found that the counter claimants are entitled to
get a decree of injunction as prayed for. Accordingly, the trial court
dismissed the suit and allowed the counter claim.
5. The plaintiff preferred the appeal. The Lower
Appellate Court read and interpreted the provision regarding the
way in Ext.A1 partition deed and found that as per the recitals in
Ext.A1, B schedule pathway starts from the Panchayat road on the
western side of the entire property and reached the paddy field on
the east. The paddy field is known as “Mundakan Padam”. On the
basis of the recitals in Ext.A1, the plaintiff contended before the
Appellate Court that the terms in Ext.A1 clearly proved that the
said document is in the nature of express grant. After considering
the nature of the contentions of both the parties, the Appellate
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Court found that the identity of the pathway is clearly proved.
Ext.A1 shows that the disputed pathway runs from west to the
eastern side where the paddy field is situated. The Lower Appellate
Court also discussed the evidence on the basis of the
Commissioner’s report and the oral evidence tendered by the parties
as well. The partition deed produced as Ext.A1 is not disputed by
either side. Three items, i.e. item Nos. 1, 2 and 3 of D schedule in
Ext.A1 are allotted to the plaintiff’s mother. It has come out in
evidence that item No.3 is paddy field lying on the east of the
plaint schedule property. Defendants are also having paddy fields
on the eastern side of plaint A schedule property. After reading
Ext.A1 partition deed, the Appellate Court found that both parties
are having right to use the plaint B schedule pathway to reach
Mudakan Padam from the Panchayat road. The findings entered by
the Lower Appellate Court are in reversal of the findings entered
by the trial court. The Appellate Court observed that on reading the
provisions of the way in Ext.A1 as a whole, it can be seen that all
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the parties are entitled to use the way which starts from the
Panchayat way on the western side which reaches the Mundakan
Padam on the eastern side. The Appellate Court also noted the fact
that the defendants have admitted in paragraph 6 of the written
statement that the defendants are going to the Mundakan Padam on
the eastern side using the beaten track seen by the Commissioner.
The Appellate Court held that the trial court went in error in
interpreting Ext.A1 partition deed. The Appellate Court also noted
that there is mistake in the description of plaint A schedule
property. The western boundary is shown only as C schedule
parambu. There is no indication in the plaint shedule that the B
schedule way is there on the western side. According to the
defendants, the way ends on the northern boundary of the property
of the 3rd defendant. In the circumstances, the plaintiff sought for
amendment of the plaint. It is also admitted by the plaintiff that
during the pendency of the appeal the way was destroyed by the
defendants by making a ditch. This fact was reported by the
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Commissioner in his report dated 4/6/2009. Therefore, it has
become necessary to amend the plaint seeking the relief of
mandatory injunction to restore the way, which is alleged to have
been blocked by the respondents as noted by the Commissioner.
For all these reasons, the Lower Appellate Court found fit to
remand the case for fresh consideration. Since the judgment and
decree passed by the trial court in the suit are set aside, the Lower
Appellate Court also set aside the decree passed by the trial court in
the counter claim.
6. After hearing the parties at length, I find that the
reasons stated by the Lower Appellate Court for re-consideration of
the suit and the counter claim are justified in all respects. The
reasons stated for remand, which I have discussed in the preceding
paragraphs, would show that the Appellate Court had considered
the controversy in the right perspective and ordered fresh trial. The
Appellate Court also issued directions to afford opportunity to the
parties to adduce additional evidence. Since the relief claimed in
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the suit and the counter claim are inter-related, the entire suit as
well as the counter claim shall have to be re-tried and a decision has
to be arrived at afresh. Since the Lower Appellate Court has
directed the trial court to give opportunity to the plaintiff to amend
the plaint and also permitted the parties to adduce additional
evidence, the parties are at liberty to raise all the contentions
including maintainability of the counter claim. The trial court has
to consider all the issues and contentions afresh untrammelled by
any of the findings and conclusions arrived at by the trial court and
the Lower Appellate Court in the respective judgments. The
discussion made above is only for the limited purpose of examining
the legality of the remand order. Therefore, the trial court shall
decide all the questions afresh, after affording opportunity to both
sides.
In the result, the appeal fails and accordingly dismissed.
The suit shall be decided afresh by the trial court within a period of
9 months from the date of appearance of the parties. The
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Interlocutory Applications pressed pending suit shall be considered
on merits. The parties shall appear before the court below on 21st
December, 2010.
Sd/-
HARUN-UL-RASHID,
Judge.
kcv.
True Copy
P.S. to Judge