In this second appeal concerning property rights and a pathway, the High Court of Kerala dismissed the appeals in limine. The court held that no substantial question of law arose as the lower courts' findings were supported by evidence regarding the pathway descriptions in the settlement deed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH
MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931
RSA.No. 185 of 2010()
--------------------AS.67/2008 of D.C.& SESSIONS COURT,THODUPUZHA OS.217/2007 of MUNI-MAGI.COURT,THODUPUZHA
APPELLANTS/APPELLANTS/DEFENDANTS
BY ADV. K.S.RAVINDRAN NAIR(PARTY-IN-PERSON)
RESPONDENTS/RESPONDENTS/PLAINTIFF 1 TO 5 & DEFENDANT NO.1.
ADV. SRI.T.J.MICHAEL FOR R1,2&5
SRI.JOSE MATHEW (KAVALAKALAM) FOR R1,2 & 5
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/03/2010, ALONG WITH RSA NO.169 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P JOSEPH, J.
R.S.A.Nos.169 and 185 of 2010
Dated this 15th day of March, 2010 JUDGMENT
These appeals arise from common judgment and decree of learned District Judge, Thodupuzha in A.S.Nos.66 of 2008 and 67 of 2008, respectively confirming judgment and decree of learned Munsiff, Thodupuzha in O.S.No.217 of 2007. The appeals are at the instance of defendant Nos.2 and 3. Parties, for the sake of convenience are referred to as plaintiffs and defendants as in the trial court.
R.S.A.Nos.169 and 185 of 2010
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10 cents sold in favour of plaintiff Nos.3 and 4 is plaint B schedule. According to the plaintiffs as per Ext.A1, assignment deed they are also entitled to make use of the common pathway provided as per Ext.A3, settlement deed No.3006 of 1999. The said pathway is described in the plaint as C schedule. Plaintiffs say that defendants are causing obstruction to their user of plaint C schedule and hence the suit for prohibitory injunction. Defendant Nos.2 and 3 while resisting the suit made a counter claim. According to defendant Nos.1 and 3, pathway described in plaint C schedule is not the one referred to in Ext.A3, settlement deed. They would say that the pathway referred to in Ext.A3 originated from the Vazhithala-Purappuzha road on the extreme south, went “straight” towards north through plaint A and B schedules, ends in B schedule of Ext.A3 and all the allottees under Ext.A3 have right over the said way. That pathway, defendant Nos.2 and 3 extended up to the property of defendant No.2 (E schedule in Ext.A3 situated on the north of F schedule of that document (which is the 44 cents, portion of which are plaint A and B schedules). It is also the contention of defendant Nos.2 and 3 that for their convenience they constructed a new way which is described in the plaint as C schedule over which plaintiff have no right or interest. In the circumstance, they prayed for a decree for prohibitory injunction against plaintiffs using plaint C schedule way. Learned Munsiff was of the view that plaint C schedule is the pathway referred to in Ext.A3
R.S.A.Nos.169 and 185 of 2010
3
which extended only up to the B schedule in Ext.A3 set apart to the share of defendant No.3, Lakshmikutty Amma. Ext.A3 does not say that the said way extended further towards west to reach the E schedule allotted to defendant No.2. Learned Munsiff also found against the contention of defendant Nos.2 and 3 that plaint C schedule is the new pathway formed by them and accordingly dismissed the counter claim while a decree was granted in favour of the plaintiffs as prayed for. Decree in favour of plaintiffs was challenged in A.S.No.66 of 2008 while dismissal of the counter claim was challenged in A.S.No.67 of 2008. Learned District Judge has confirmed the finding of learned Munsiff and dismissed the appeals. Hence these second appeals urging by way of substantial questions of law whether courts below are legally and factually correct in concluding that plaint C schedule is the pathway referred to in Ext.A3, settlement deed and whether courts below went wrong in not finding that plaintiffs instituted the suit after destroying the existing pathway.
4
R.S.A.Nos.169 and 185 of 2010
referred to in Ext.A3 which has nothing to do with the plaint C schedule. According to Sri. K.S.Ravindran Nair in the way courts below have granted decree in favour of the plaintiffs, defendant No.2 has no access to the property belonging to her (E schedule in Ext.A3). He has also a contention that defendant Nos. 2 and 3 are not being permitted to take water from the well in the tarvad property. Learned counsel for plaintiffs in response contends that there is no acceptable evidence as to the existence of a way other than plaint C schedule and that contention of appellants/defendant Nos.2 and 3 that the pathway referred to in Ext.A3 extended up to the E schedule in Ext.A3 allotted to defendant No.2 is belied by the description of counter claim pathway as well as Ext.A3.
R.S.A.Nos.169 and 185 of 2010
5
situated on the north western side of F schedule (the 44 cents acquired by plaintiff Nos.1 and 2 as per Ext.A1). In other words going by the description in Ext.A3, the way does not reach up to the E schedule in Ext.A3 allotted to defendant No.2. It is also relevant to note that in the boundary descriptions of the separate schedules in Ext.A3, except for E schedule allotted to defendant No.2 the common way referred to in Ext.A3 is described as a boundary. But the boundary description for E schedule allotted to defendant No.2 as per Ext.A3 is the property referred to in B schedule in Ext.A3 and comprised in survey No.214/1/1, 214/2 and 214/5/2. Therefore from Ext.A3 it is not possible to say that the common way referred to therein extended up to E schedule referred in Ext.A3 and allotted to defendant No.2 and hence plaint C schedule is not the way referred to in Ext.A3.
R.S.A.Nos.169 and 185 of 2010
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boundary of F schedule is given as the common pathway (referred to in Ext.A3). Learned counsel for plaintiffs points out that even as per the counter claim schedule described in the written statement, pathway claimed by defendant Nos.2 and 3 does not extend to E schedule on the north-west of plaint A and B schedules (F schedule in Ext.A3). I am also unable to accept the contention that because the common way is stated in Ext.A3 as “straight”, it should go like a straight line without any deviation at all.
R.S.A.Nos.169 and 185 of 2010
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law. Courts below have found against case of defendant Nos. 2 and 3 with reference to the relevant recitals in Ext.A3 and the evidence. Courts below have only protected the right of plaintiffs to sue plaint C schedule way. The decree does not affect the right of appellants/defendant Nos.2 and 3 to use the said way. Decision of the courts below is based on the evidence on record. In the circumstance, I am inclined to think that there is no substantial question of law involved in the appeals requiring admission.
With the above observations the second appeals are dismissed in limine.
THOMAS P JOSEPH, JUDGE
Sbna/
2 issues framed by the court
Whether the lower courts were factually and legally correct in concluding that the pathway described in plaint C schedule is the one referred to in the settlement deed Ext.A3.
Whether the plaintiffs instituted the suit after destroying the existing pathway.
Ammini Nair
Lakshmikutty Amma
Joseph
Renchith John
Jayan
Smith Jayan
Thomas P. Joseph
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
