IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 662 of 1994()
1. SHANKARANARAYANA BHAT
... Petitioner
Vs
1. DRUIPADI AMMA
... Respondent
For Petitioner :SRI.K.G.GOURI SANKAR RAI
For Respondent :SRI.N.L.KRISHNAMOORTHY
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :14/08/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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S.A. NO. 662 OF 1994
===========================
Dated this the 14th day of August, 2007
JUDGMENT
Plaintiffs 1 and 3 in O.S.284/1986 on the file
of Munsiff Court, Kasaragod are the appellants.
Defendants 2, 4,5 are respondents 1 to 3 and
plaintiffs 2 and 4 are the respondents 4 and 5.
The first defendant died and respondents 2 and 3
were impleaded as his legal heirs in the suit
itself. Third defendant also died during the
pendancy of the suit. First defendant was the
father and plaintiffs and third defendant are his
children. Second defendant is his wife. The
properties belonging to the joint family were
divided under Ext.A1 partition deed dated 8.6.1984
whereunder plaint A schedule properties were
allotted to the share of defendants 1 and 3 and
plaint B schedule properties to the shares of the
plaintiffs. Under Ext.A1 partition deed it was
provided that all mamool pathways shall be used by
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all the sharers without any obstruction by the
other sharers to whom the properties are allotted,
as was being done till then. A plan was also
appended to Ext.A1 partition deed where all
mamool pathways till then used by the sharers were
marked. Plaintiffs contended that mamool pathway
which was being used and provided under Ext.A1
partition deed, proceeds from survey No.834/4 the
residential plot of the plaintiffs and proceeds
towards the north upto plot R.S.863/3 as marked in
the plan appended to Ext.A1 partition deed and that
pathway passes through R.S.No.835/1, 835/4 and
defendants have no right to cause any obstruction
to the way. Contending that pathway was obstructed,
plaintiffs sought a decree for declaration of their
right of way as granted to under Ext.A1 and a
consequential permanent prohibitory injunction.
Defendants in the written statement admitted Ext.A1
partition deed as well as the plan appended to
Ext.A1. But it was contended that certain recitals
in Ext.A1 regarding the pathways are not clear and
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correct and the marking of pathways in the plan are
not fully correct. According to them, and there is
no pathway passing through R.S.No.835/4 and a
pathway through that survey number was wrongly
marked and plaintiffs have no right of way through
that property and therefore they are not entitled
to the decree for declartion or injunction.
2. Learned Munsiff on the evidence of Pws.1 and
2, DW1, Exts.A1 and A2 and Exts.C1 and C2 rejected
the case of defendants and found that the pathway
provided under Ext.A1 is the one as marked in
Ext.A1. The case of the defendants that pathway
was mistakenly marked in Ext.A1 was not accepted,
and a decree for declaration and injunction were
granted. Defendants 2,4 and 5 challenged the
decree and judgment before Sub Court, Kasaragod in
A.S.54/1991. Learned Sub Judge on reappreciation
of evidence found that Section 91 and 92 of Indian
Evidence Act will not prevent defendants from
proving that mistake was crept in the plan
appended to Ext.A1 and relying on Ext.C1 report
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and C2 plan found that pathways as marked in the
plan appended to Ext.A1 partition deed are not
correct and pathway as marked did not exist and
the pathway in existence is the one marked by the
Commissioner in Ext.C2 plan. Holding that there was
no pathway through R.S.835/4 it was held that
plaintiffs are not entitled to the decree for
declaration or injunction granted by the trial
court. The appeal was allowed and the decree
granted by the trial court was set aside and the
suit was dismissed. Plaintiffs are challenging the
said decree.
3. The appeal was admitted formulating the
following substantial questions of law.
1. Has not the first appellate court erred in
its construction of the terms of Ext.A1 partition
deed.
2. When a deed of partition inter parties
refers to the existence and user of pathways and
provides for future use of those pathways by the
parties, can the parties dispute the existence and
S.A.662/94 5
user alleging it to be a mistake.
3. Is not the finding of the first appellate
court opposed to the right of easement as
provided under section 13 of the Easements Act.
4. Learned counsel appearing for appellants
and respondents were heard.
5. Under Ext.A1 partition deed joint family
properties were divided by the father and his
children. Along with the third defendant, the son,
first defendant, father was allotted plaint
schedule properties. Plaintiffs the other
children were allotted plaint B schedule
properties. The dispute in the suit is only with
regard to the right of way provided under Ext.A1.
Ext.A1 provides a right to use all existing mamool
pathways to the sharers inspite of the division of
the properties thereunder. The relevant recitals
in Ext.A1 (as translated in English, the document
being English) reads:-
“Mamool pathways shall be used by all the
sharers without any obstruction as is being
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used hitherto.”
Therefore the right to use the mamool pathways,
which were being used till then, and protected is
preserved under Ext.A1 making it unambiguously
clear that all the sharers are entitled to use the
mamool pathways without any obstruction from other
sharer. But in the body of Ext.A1, the mamool
pathways were not described including the direction
of the pathways or the details of the properties
through which the pathways run. But a plan showing
the plots allotted was appended to Ext.A1. Hence
the plan so appended shall treated as part of
the partition deed. That plan shows the existing
mamool pathways. The pathways are marked therein.
As per the said plan, one of the pathways leads
from plot R.S.No.834/4 and proceeds towards the
north east through plot R.S.No.833/8 then enters
northern plot R.S.No.835/9 and then proceeds
through R.S.No.835/1 and proceeds towards east
through R.S.No.835/2 and through R.S. No.835/4 and
reaches R.S.No.836/3. Plaintiffs are claiming that
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they have a right to use the said pathway as a
right of easement by grant, as provided under
Ext.A1. Defendants are not disputing the right of
the plaintiffs to use the pathway provided under
Ext.A1. The only contention was that the pathway
is not passing through R.S.835/4 and there is no
pathway as claimed by the palintiffs. The trial
court on the evidence found that the pathway
provided under Ext.A1 is as claimed by the
plaintiffs and granted a decree declaring that
right. The first appellate court set aside that
finding relying on Exts.C1 report and Ext.C2 plan
which show that the pathway which is being used by
the parties not as shown in the plan appended to
Ext.A1, but a pathway which starts from the western
plot R.C.834/4 where the plaintiffs resides and
proceeds through R.S.833/8, R.S.No.833/9,
R.S.No.833/10, R.S.No.833/11 and thereafter enters
R.S.835/2 and proceeds towards the north through
R.S.835/3 and reaches R.S.No.836/3. As per Ext.C1
report and C2 plan the disputed pathway does not
S.A.662/94 8
proceeds through R.S.No.835/1 or R.S.No.835/4.
Learned Sub Judge on that basis held that
plaintiffs are not entitled to a declaration of
the right of way through R.S.834/4.
6. Advocate Sri.Gowri Shankar Rai, learned
counsel appearing for appellants vehemently argued
that when mamool pathways preserved under Ext.A1
are marked in the plan appended to Ext.A1, which is
to be treated as part of the partition deed,
defendants are not entitled to lead evidence
against the provisions in Ext.A1, in view of the
mandate under sections 91 and 92 of Indian
Evidence Act. Learned counsel appearing for
respondents argued that the bar provided under
sections 92 of Indian Evidence Act is only with
regard to varying or adding or contradictory the
terms of a document and not with regard to the
modifying the terms of a document and it does not
prevent a party from proving that the facts stated
including marking of the pathways in the plan
appended to Ext.A1 was mistakenly shown and
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first appellate court rightly appreciated the
evidence and found that the pathways marked in the
plan appended to Ext.A1 are not correct but
mistakenly shown and pathway does not run through
R.S.No.835/4. It was argued that there is no
reason to interfere with the decree granted by the
first appellate court. Reliance was placed on the
decisions of this court in Kunhammed kutty v.
Avokker & Others(1984 KLT 716) and Apex Court in
Krishnabai Bhritar Ganpatrao Deshmukh v. Appasheb
Tuljaramarao Nimbalkar (1979) 4 SCC 60).
7. When the plaintiffs specifically pleaded in
the plaint that the pathway as marked in the plan
appended to Ext.A1, is the pathway which is
provided under Ext.A1 in the written statement
while admitting that right what was pleaded by the
defendants was that certain recitals made in the
partition deed regarding the pathways are not clear
or correct and similarly the marking of the
pathways in the plan appended to the partition
S.A.662/94 10
deed are not fully correct. It was also pleaded
that there is no pathway passing through R.S.834/4
of Bayar village. As rightly pointed out by
Advocate Sri. Gowri Shankar Rai, there is no
specific plea in the written statement that the
mamool pathway preserved under Ext.A1 is the one
running through R.S.835/2 and proceeds towards
north through R.S.835/3. Instead the only pleading
was that there was a mistake in showing the pathway
and the pathway does not proceeds through
R.S.835/4. When Ext.A1 provides that mamool
pathways are existing in the properties dividied
thereunder and a right to use the mamool pathway as
used till then was also provided and in the plan
appended the mamool pathway are marked and
plaintiffs claim a right to use that mamool pathway
as marked in the plan, defendants while projecting
a case of mistaken identity of the pathway marked
in the plan should have pleaded what was the
direction, identity and details of the mamool
pathway. It was not pleaded.
S.A.662/94 11
8. First appellate court relied on Exts.C1
report and Ext.C2 plan to hold that the pathway
provided under Ext.A1 does not run through
R.S.No.835/4. Unfortunately the first appellate
court omitted to take note of the fact that the
defendants are also disputing the way as marked in
the plan appended to Ext.A1 which runs through
R.S.835/1. Before the Commissioner it was contended
that the pathway runs from R.S.No.833/9 through
R.S.No.833/10 and thereafter through R.S.No.833/11
and enters R.S.No.835/2. The plan appended to
Ext.A1 shows the pathway running through
R.S.No.833/8, R.S.No.833/9, R.S.No.835/1,
R.S.835/2 and thereafter R.S.No.835/4 and reaches
R.S.No.836/3. Defendants have no case in the
written statement that there is no pathway as
marked in Ext.A1, which runs along R.S.No.835/1.
Instead the mistake alleged in the written
statement is only about R.S.No.835/4. That cannot
be the case, if Exts.C1 and C2 report and plan are
to be relied on.
S.A.662/94 12
9. When Ext.A1 provides for preservation of
existing mamool pathways with specific provision
that sharers are not entitled to cause any
obstruction to the usage of the mamool pathways
and the pathways are marked in the plan appended to
Ext.A1 partition deed, it cannot be said that
varying or contradicting or changing the pathway
from the one demarcated in the plan appended to
Ext.A1 is not permitted under section 92 of
Evidence Act as canvassed by learned counsel
appearing for respondents. Section 92 of Evidence
Act mandates that no evidence of an oral agreement
or statement shall be admitted for the purpose of
contradicting, varying, adding to or subtracting
from the terms of the document. Changing of the
pathway as marked in Ext.A1 would amount to varying
and contradicting the terms of Ext.A1. The
principles laid by the Apex Court in Krishnabai
Bhritar Ganpatrao Deshmukh’s case (supra) is not
applicable on the facts of this case. If the case
of the defendants was that there was a mistake in
S.A.662/94 13
marking the pathway in the plan appended to Ext.A1,
they should have pleaded as to what exactly was
the existing mamool pathway at the time of the
partition deed. Without pleading that fact, they
are not entitled to contend that a mistake was
committed while marking the plan appended to
Ext.A1 partition deed. As rightly pointed out by
learned counsel appearing for appellants, if the
right of way which is preserved under Ext.A1 is
not as marked in the plan appended to Ext.A1 and
the pathway runs through R.S.835/3 as claimed by
the defendants, it would have been specifically
marked in R.S.No.833/3, as it admittedly did not
belong to the joint family at the time when Ext.A1
partition deed was entered into, though after
Ext.A1, plaintiffs purchased the said paddy field
also. It is therefore absolutely clear from the
evidence that the mamool pathway preserved under
Ext.A1 is the pathway as demarcated in the plan
appended to Ext.A1. The defendants are not
entitled to plead or prove that pathways preserved
S.A.662/94 14
thereunder is another pathway and not the one as
marked in the plan appended to Ext.A1. If that be
so, first appellate court was not justified in
interfering with the finding of the trial court
that the pathway provided under Ext.A1 is the one
marked in Ext.A1 and claimed by the plaintiffs in
the suit. When a right of way is provided under
Ext.A1, defendants are not entitled to contend
that plaintiffs are not entitled to use that
pathway, for the reason that the pathway was not
being used by the plaintiffs. Exts.C1 report and
C2 plan, at best would show that for some period
the pathway provided under Ext.A1 was not used.
But that will not enable defendants to deny the
right granted to the plaintiffs under Ext.A1.
Plaintiffs are therefore entitled to the decree for
declaration and injunction granted by the trial
court.
Second appeal is allowed. The decree and
judgment passed by the Sub Court, Kasaragod in
A.S.54/1991 are set aside. The decree passed by
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Munsiff Court, Kasaragod in O.S.284/1986 is
restored. No cost.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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S.A. 537 /1994
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JUDGMENT
17TH AUGUST,2007