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RAMANKUTTYNAIR v. GOPALAKRISHNAN NAIR - SA No. 402 of 1994(F)  RD-KL 14704 (1 August 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMSA No. 402 of 1994(F)
1. GOPALAKRISHNAN NAIR
For Petitioner :SRI.B.KRISHNAN
For Respondent :SRI.S.V.S.IYER(SR)
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
O R D E R
M.SASIDHARAN NAMBIAR, J........................................................ S.A.Nos. 402 & 403 OF 1994 ...........................................................
DATED THIS THE 1st DAY OF AUGUST, 2007
Plaintiff in O.S.359 of 1987, who is the first defendant in O.S.370 of 1987 is the appellant. Respondents in S.A.402 of 1994 are the defendants in O.S.359 of 1987. Respondents in S.A.403 of 1994 are the plaintiffs and the second defendant in O.S.370 of 1987. S.A.402 of 1994 is filed against the judgment in A.S.73 of 1992, which was the first appeal against the decree and judgment in O.S.359 of 1987. S.A.403 of 1994 is against the decree and judgment in A.S.72 of 1992, which was the first appeal against the decree and judgment in O.S.370 of 1987. Appellant instituted O.S.359 of 1987 seeking a decree for permanent prohibitory injunction restraining respondents from trespassing into the plaint A schedule property contending that they have right and possession only over plaint B to D schedule properties and item No.1 of the plaint A schedule property was purchased under Ext.A1 sale deed and item No.2 was purchased under Ext.A2 sale deed dated 29.5.1974 from the father of first respondent. As the father had earlier transferred his right in favour of first respondent, Ext.A3 sale deed was obtained by first SA 402 & 403/94 2 respondent. Appellant thus claim absolute right, title and possession to plaint A schedule property. The remaining properties belonging to the family of respondents were divided under Ext.A4 partition deed. Plaint B to D schedule properties were alloted to the respondents thereunder and they are in possession of that property. Appellant had paved a motorable way having 10 links width through his property to his residential house. It was contended that respondents have no manner of right over his property and they are preventing appellant from constructing a compound wall enclosing his property and therefore appellant sought a decree to restrain respondents by a decree for permanent prohibitory injunction. Respondents 1 and 2 in S.A.403 of 1994 filed O.S.370 of 1987 seeking a decree for permanent prohibitory injunction contending that the disputed way in the other suit, forms part of the plaint schedule property which was alloted to them under Ext.A4 partition deed and appellant is not entitled to obstruct the right to use the property as a way and therefore appellant is to be restrained by a decree for permanent prohibitory injunction. The respective contentions were raised, in the written statement filed by appellant as well as respondents, in the respective suits. Both SA 402 & 403/94 3 the suits were jointly tried.
2. Learned Munsiff, on the evidence of PWs 1 to 3, Dws 1 to 4, Ext.A1 to A8, and Ext.C1 to C2(a) found that the disputed way which lies to the east of the way provided under Ext.A4 partition deed, falls within the property belonging to the appellant under Ext.A1 and A2. It was therefore held that appellant has title to the plaint schedule property inclusive of the disputed way. Learned Munsiff rejected the case of respondents that they have title or right to the disputed way under Ext.A4 partition deed. Therefore O.S.370 of 1987 was dismissed and a decree for injunction was granted as prayed for in O.S.359 of 1987. The decree and judgment were challenged before Additional District Court, North Paravur in A.S.72 of 1992 and 73 of 1992. Learned Additional District Judge, though confirmed the findings of the trial court that the disputed way falls within the property covered under Ext.A1 and A2 and the way provided under Ext.A4 is the way marked as plot No.5 in Ext.C2(a) plan held that evidence establish that the said way is not being used for the last several years and instead the parties have been using the disputed way. In such circumstances it was held that appellant is not entitled to a decree for injunction as he has not SA 402 & 403/94 4 established his exclusive possession of the property. The appeal was allowed and the decree and judgment granted in O.S.359 of 1987 was set aside and a decree for injunction was granted in O.S.370 of 1987. It is challenged in these second appeals.
3. The appeals were admitted formulating the following substantial questions of law: 1)Whether a person can have a right to use a pathway over which he has no manner of title, unless he claims and establishes acquisition of a right of easement in respect of such pathway. 2) Whether first appellate court acted in confirmity with law in granting a decree in favour of respondents, when appellants claim for title to the disputed pathway was upheld and respondents have not established any right to use that pathway. 3)Whether refusal of first appellate court to grant a decree, when appellant established title and possession and respondents failed to establish any right of way, is sustainable.
4. Learned counsel appearing for the appellant and respondents were heard.
5. The argument of the learned counsel appearing for appellant is that trial court and first appellate court concurrently found that the disputed way forms part of the plaint schedule SA 402 & 403/94 5 property in O.S.359 of 1987, which was purchased by appellant under Ext.A1 and A2 and case of respondents that the disputed way forms part of the property alloted to them under Ext.A4 partition deed is unsustainable and in view of that finding unless respondents have a right of way through plaint A schedule property in O.S.359 of 1987, first appellate court should not have interfered with the decree granted by the trial court or granted a decree in favour of respondents in O.S.370 of 1987.
6. Learned counsel appearing for respondents argued that first appellate court on the evidence found that though the disputed pathway does not form part of the property alloted to respondents under Ext.A4 partition deed, the pathway provided in Ext.A4 was never put in use and instead all parties have been using the disputed way and in such circumstances they cannot be trespassers as alleged by appellant and as the appellant was not in exclusive possession of the property, he is not entitled to the decree sought for and appellant is not entitled to obstruct the way and in such circumstances decree was rightly granted by first appellate court in favour of respondents.
7. Under Ext.A4 partition deed properties belonging to respondents were divided as schedules A, B and C. The SA 402 & 403/94 6 properties claimed by respondents, which are the plaint B, C and D schedule properties in O.S.359 of 1987, are respectively the properties comprised in schedules A, B and C of Ext.A4 partition deed. The courts below on the evidence found that plaint A schedule property belongs to appellant under Ext.A1,A2 and A3 sale deeds. Under Ext.A1, item No.1 of plaint A schedule property was purchased by appellant. Item No.2 of plaint A schedule property originally belonged to the father of first respondent. He assigned the property in favour of appellant under Ext.A2 sale deed. But as the father had earlier sold that property in favour of first respondent, appellant acquired the right of first respondent also under Ext.A3 sale deed. Therefore courts below found that appellant has title to item No.1 and 2 of plaint A schedule property. This concurrent finding was not disputed.
8. The Commissioner in Ext.C2(a) plan demarcated the property alloted to the respondents under Ext.A4 partition deed as plot 3, 2 and 4. Ext.A4 provides for a way for usage of the sharers. It is demarcated by the Commissioner as plot No.5. Courts below found that there is a bund on the eastern side of the said way which demarcates plaint A schedule property in SA 402 & 403/94 7 O.S.359 of 1987 from plot No.4 marked in Ext.C2(a) which is C schedule property under Ext.A4 partition deed. The disputed way is in plot No.6, which is the property belonging to the appellant under Exts.A2 and A3. Therefore the concurrent finding of fact entered by courts below that the disputed way is in plaint A schedule property in O.S.359 of 1987 and it exclusively belong to the appellant are correct.
9. The question then is whether respondents have any right to use the disputed way. What was claimed by the respondents in the written statement in O.S.359 of 1987 as well as in the plaint in O.S.370 of 1987 was that the disputed way falls within the property alloted to them under Ext.A4 partition deed. When it is found that it is not so, respondents have no right to use the disputed way as a way provided to them under Ext.A4 partition deed. Even otherwise when Ext.A4 partition deed provides a way and that is plot 5 marked in Ext.C2(a) plan, respondents cannot be heard to contend that the disputed way is provided to them under Ext.A4 partition deed. Moreover, what was divided under Ext.A4 is the property left behind after alienation evidenced by Ext.A2 and A3. Therefore while dividing the remaining properties, no right of way can be provided in SA 402 & 403/94 8 respect of the property alienated earlier under Ext.A2 and A3. Therefore under Ext.A4 respondents cannot claim a right to use any portion of the property of appellant as a way.
10. As rightly pointed out by learned counsel appearing for appellant, once it is established that respondents have no right to use plaint A schedule property in O.S.359 of 1987, which is the property covered under Ext.A1 to A3 and it is found that Ext.A4 does not enable respondents to claim a right to use any portion of the property in plaint A schedule in O.S.359 of 1987, unless a right of way is pleaded and proved, respondents have no right to use plaint A schedule property as a way. Neither in the written statement in O.S.359 of 1987 nor in the plaint in O.S.370 of 1987, respondents claimed a right of way either by grant or prescription or by necessity. In such circumstances, first appellate court should not have interfered with the decree granted by trial court holding that the respondents have been using the disputed pathway. When respondents have no right to use the disputed way and they have no case that they have any right of easement to use the way, even if it is taken that respondents have used that disputed way, it will not enable them to continue the said usage. In such circumstances first appellate SA 402 & 403/94 9 court should not have granted a decree sought for in O.S.370 of 1987 or interfered with the decree granted in O.S.359 of 1987.
11. Second appeals are allowed. The decree and judgment passed by the first appellate court in A.S.72 of 1992 and A.S.73 of 1992 are set aside. The decree and judgment passed by the trial court in O.S.359 of 1987 are restored and dismissal of O.S.370 of 1987 is confirmed.
M.SASIDHARAN NAMBIAR, JUDGElgk/-
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