Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 29TH DAY OF JANUARY 2024 / 9TH MAGHA, 1945 RSA NO. 594 OF 2021 AGAINST THE JUDGMENT AND DECREE IN A.S.NO.77/2013 OF SUB COURT, MUVATTUPUZHA IN O.S.NO.337/2010 OF MUNSIFF COURT,MUVATTUPUZHA APPELLANTS/RESPONDENTS/DEFENDANTS:
1 MOLLY AGED 51 YEARS W/O GEORGE, KOODATHINAL HOUSE, POOVAKKULAM KARA, VELIYANOOR VILLAGE, MEENACHI TALUK, KOTTAYAM DISTRICT, PIN-686662. 2 GEORGE AGED 54 YEARS KOODATHINAL HOUSE, POOVAKKULAM KARA, VELIYANOOR VILLAGE, MEENACHI TALUK, KOTTAYAM DISTRICT, PIN-686662. 3 THOMAS AGED 53 YEARS S/O THOMAS @ THANKACHAN, NIRAPPIL PUTHENPURA HOUSE, PIRAVOM KARA,PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686664. 4 GEORGE AGED 58 YEARS S/O KOCHUMAN, KUDILIL HOUSE, ONAKKOOR KARA, ONAKKOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686664. 5 BOBY AGED 48 YEARS S/O ONAI, ARAMANAPARAMBIL HOUSE, PIRAVOM KARA, PIRAVOM VILLAGE, MUVATTUPUZA TALUK, ERNAKULAM DISTRICT-686664. 6 ANIL CHACKO, AGED 43 YEARS, S/O.CHACKO, CHARUPLAVIL HOUSE, PIRAVOM KARA, PIRAVOM VILLAGE, MUVATTUPUZA TALUK, ERNAKULAM DISTRICT-686664. ADDL.A7 SOJIMON T KURIAN AGED 51 YEARS S/O. KURIAN, THEKKUMBURUTHU HOUSE, KALAMBOOR KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT -
RSA NO. 594 OF 2021 2 (ADDL.A7 IS IMPLEADED AS THE REPRESENTATIVE OF THE FIRST APPELLANT AS PER ORDER DATED 15.11.2023 IN IA.1/2023) BY ADVS. ENOCH DAVID SIMON JOEL S.SREEDEV RONY JOSE CIMIL CHERIAN KOTTALIL SUZANNE KURIAN LEO LUKOSE KAROL MATHEWS DERICK MATHAI SAJI RESPONDENT/APPELLANT/PLAINTIFF: ZAVIOUR AGED 68 YEARS S/O PAPPU, EETTUNKAL HOUSE, PIRAVOM KARA, PIRAVOM VILLAGE, MUVATTUPUZA TALUK, ERNAKULAM DISTRICT- 686664. BY ADVS. P.M.JOSHI ELIZABETH KOSHY BONNY BABY SAHEER M. SIJI K.PAUL THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 29.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA NO. 594 OF 2021 3
JUDGMENT
Dated this the 29th day of January, 2024 This Regular Second Appeal has been filed against the
judgment and decree in A.S.No.77/2013 on the files of the Sub
Court, Muvattupuzha, arose out of the judgment and decree in O.S.No.337/2010 on the files of Munsiff Court, Muvattupuzha. Appellants are the defendants and the sole respondent is the plaintiff in the above suit.
2. During pendency of this appeal, the additional 7th
appellant herein filed a petition to implead him in this appeal on the submission that he purchased the property of the 1 st appellant/1st defendant during the pendency of this litigation. Accordingly, he got impleaded as the representative of the 1 st appellant.
3. I shall refer the parties in this appeal as 'the plaintiff' and 'the defendants', for convenience.
4. At the time of admission of this appeal, as per order,
dated 13.9.2021, my learned predecessor raised the following substantial question of law: RSA NO. 594 OF 2021 4 1) Whether a suit for permanent prohibitory injunction alone would suffice when the defendants have specifically denied title of the plaintiff over the plaint schedule property and adduced documentary evidence to substantiate the same?
5. Heard the learned counsel for the defendants 1 to 6, additional 7th appellant and the learned counsel for the plaintiff, in detail.
6. Originally, the suit was filed, seeking prohibitory injunction, restraining trespass upon the plaint schedule
property, purchased by the plaintiff, as per sale deed No.797/2007, when the plaintiff apprehended trespass upon the same for the purpose of creation of a new way through the same.
7. Defendants appeared and filed written statement.
The main contention raised in the written statement is that the plaint schedule description is incorrect and the plaintiff did not obtain the entire property described in the schedule and there was no physical boundaries on the north and east. Further, Piravam- Kombanamala road is running through the northern side of the plaint schedule property. Starting from this road, a
RSA NO. 594 OF 2021 5 way, having width of 6 ft. is available towards east and passes through the western side of the plaint schedule property and then passes through the southern side of the plaint schedule property and reaches up to the 1 st defendant's property. According to the 1st defendant, he also has been using the way.
8. The trial court ventured the matter. PW1 and PW2 were examined and Exts.A1 and A2 were marked on the side of
the plaintiff. No oral evidence let in by the defendants and Ext.B1 was marked on the side of the defendants. Exts.C1 and C2 series were also marked. On appreciation of evidence, the trial court dismissed the suit.
9. When the matter was taken in appeal before the appellate court, the appellate court, on re-appreciation of evidence, granted permanent prohibitory injunction, after analysing the evidence in detail.
10. It is submitted by the learned counsel for the
defendants and the additional 7th appellant that there is clear mentioning of a way in Ext.B1, the prior title deed of Ext.A1. Ext.A1 is the title deed of the plaintiff and Ext.B1 is its prior title deed. It is submitted by the learned counsel further that RSA NO. 594 OF 2021 6 the trial court dismissed the suit, since the plaintiff attempted to get prohibitory injunction suppressing the way stated in Ext.A1 as well as Ext.B1.
11. When a vital question is asked to the learned counsel
for the contesting parties as to what is the right of the defendants over the way described in Ext.B1, the learned counsel submitted that the 1st defendant has been using the said way. When the learned counsel is asked to justify the right claimed based on the averments in the written statement, the learned counsel miserably failed to point out any right from the contentions raised in the written statement and the contention in the written statement is a claim of mere user without specifying in legal report.
12. Whereas, justifying the finding of the first appellate
court, the learned counsel for the plaintiff submitted that, as per the Commission Report, the Commissioner located the plaint schedule properties with specific boundaries and the Commissioner categorically reported that there was attempt to create a new way through the southern side of the plaint schedule property, but the same was not succeeded. According
RSA NO. 594 OF 2021 7 to the learned counsel for the plaintiff, defendants have no manner of right either over the plaint B schedule property or the way described in Exts.A1 and B1.
13. On perusal of Ext.C2 survey sketch forming part of Ext.C2(b) survey plan, attached to Ext.C2, the Commissioner specifically noted that, plot No.1, 2 and 3 would constitute 10
cents of property covered by Ext.A1. Plot No.2 is the area, where the defendants would allege existence of way in tune with narration in Ext.B1. On perusal of Exts.A1 and B1, it is emphatically clear that the said way is intended for the benefit of the plaintiff and there is no whisper either in Exts.A1 or B1 conferring any right to the defendants, in any manner. In the written statement filed by the defendants also, no specific right claimed over the way described in Ext.B1, in any manner, though a mere claim of user had been alleged, as already observed. Thus, it appears that plot No.1, 2 and 3, identified as the property of the plaintiff on the strength of Ext.A1, does not contain any way through its southern side. The first appellate court even though accepted the recitals in Ext.B1 and found that even if the narration in Ext.B1 to be read out to see
RSA NO. 594 OF 2021 8 existence of a way on the southern side of the plaint schedule property, the same must not be part of the plaint schedule property and it might be on the further south of the plaint schedule property. Holding so, the learned first appellate court found apprehension of trespass upon the plaint schedule property identified as per Ext.C2 and accordingly, prohibitory injunction was granted.
14. Since it is found that the defendants even not
pleaded any right over the so called way narrated in Ext.B1 and nothing available even to see any right to the defendants over the so called way, the apprehension of the plaintiff in the matter of trespass upon the plaint schedule property is established by the evidence of PW1, supported by the evidence of PW2 and Exts.C1 and C2. It is pertinent to note that the Commissioner did not locate any way on the southern side of the plaint schedule property, instead, it has been reported that there were signs of attempt made to create a new pathway. Therefore, the first appellate court rightly granted decree and the same does not require any interference.
15. On perusal of the available records at par with the
RSA NO. 594 OF 2021 9 finding of the first appellate court, it has to be held that the plaintiff, who got title over the plaint schedule property on the strength of ExtA1, had filed the suit when he apprehended trespass upon the same. No specific or serious challenge could be noticed in the written statement filed by the defendants to hold that there is absolute challenge as to the title of the plaintiff, in any manner. Therefore, the suit is to be treated as a simple suit for injunction and possession alone is decisive to
grant the relief. Accordingly, the substantial question of law answered, holding that the present suit for permanent
prohibitory injunction alone would be maintainable in the facts
of the case, as discussed hereinabove. Accordingly, this Regular Second Appeal stands dismissed. All interlocutory orders stand vacated and all interlocutory applications pending in this second appeal, stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- A. BADHARUDEEN JUDGE Bb