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SHANKARANARAYANA BHAT v. DRUIPADI AMMA - SA No. 662 of 1994  RD-KL 15694 (14 August 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMSA No. 662 of 1994()
1. SHANKARANARAYANA BHAT
1. DRUIPADI AMMA
For Petitioner :SRI.K.G.GOURI SANKAR RAI
For Respondent :SRI.N.L.KRISHNAMOORTHY
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
O R D E R
S.A. NO. 662 OF 1994
Dated this the 14th day of August, 2007
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 S.A.662/94 2 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 S.A.662/94 3 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 S.A.662/94 4 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
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
being English) reads:-
"Mamool pathways shall be used by all the sharers without any obstruction as is being S.A.662/94 6 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 S.A.662/94 7 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 S.A.662/94 9 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 S.A.662/94 15 Munsiff Court, Kasaragod in O.S.284/1986 is restored. No cost. M.SASIDHARAN NAMBIAR
M.SASIDHARAN NAMBIAR, J.S.A. 537 /1994
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