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