Baby Girija @ Girija S. Nair and S. Sreekandan Nair v. K. Jayaram Nair and Biju

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 8[TH] DAY OF APRIL 2022 / 18TH CHAITHRA, 1944 OP(C) NO. 654 OF 2022** **AGAINST THE JUDGMENT DATED 20.01.2022 IN CMA.NO.14/2021 IN I.A.NO.2/2021 IN OS 526/2021 OF PRINCIPAL MUNSIFF COURT,** ## **NEYYATTINKARA** ## **PETITIONERS/APPELLANTS/PLAINTIFFS:** 1 BABY GIRIJA @ GIRIJA S. NAIR AGED 69 YEARS D/O SARASAMMA, SREESADANAM, POOVANGAVILAKOM, PATHAMKALLU, THALAYAL DESOM, ATHIYANNOOR VILLAGE, ARALUMMOODU P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM,, PIN – 695123. 2 S. SREEKANDAN NAIR, AGED 71 YEARS SREESADANAM, POOVANGAVILAKOM, PATHAMKALLU, THALAYAL DESOM, ATHIYANNOOR VILLAGE, ARALUMMOODU P.O., NEYYATTINKARA TALUK, THIRUVANANTHAPURAM,PIN – 695123. BY ADV G.S.REGHUNATH ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 K. JAYARAM NAIR, AGED 50 YEARS SON OF LATE K.M. KRISHNAN NAIR, RESIDING AT KRISHNA BHAVAN, ATHIYANNOOR, ARALUMMOODU P.O., ATHIYANNOOR VILLAGE, NEYYATTINKARA TALUK, PIN 695123, PIN – 695123. 2 BIJU AGED ABOUT 50 YEARS SANDHYA BHAVAN, VIZHINJAM HARBOUR ROAD, MUKKOLA, MULLOOR P.O., THIRUVANANTHAPURAM TALUK, PIN – 695521. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 05.04.2022, THE COURT ON 08.04.2022 DELIVERED THE FOLLOWING: O.P(C).No.654/2022 2 _**A. BADHARUDEEN, J.**_ ================================ _O.P(C). No.654 of 2022_ ================================ _Dated this the 8[th] day of April, 2022_ ## _**J U D G M E N T**_ This is an Original Petition filed under Article 227 of the Constitution of India by the plaintiffs in O.S.No.526/2021 on the file of the Munsiff Court, Neyyattinkara. Respondents herein are the defendants in the Suit. 2. Heard the learned counsel for the petitioners on admission, since the petitioners impugn the concurrent finding entered into by the trial court as well as the appellate court. 3. The learned counsel for the petitioners argued that the appellate court had not given opportunity to the plaintiffs to argue this case on merits and the appellate court dismissed the appeal without hearing the appellants, since this Court directed the O.P(C).No.654/2022 3 appellate court to dispose of the same. In this connection, the learned counsel heavily relied on an affidavit filed by the learned counsel appearing for the appellants. Copy of the same is Ext.P9. On perusal of Ext.P9, it could be noticed that one Vadakara V.V.N.Menon filed this affidavit on 20.01.2022. It is true that O.P(C).No.2450/2021 was filed by the respondents/defendants pertaining to the above appeal and the specific contention in the said Original Petition in para.8 regarding the stage of the appeal was as under: _“8. It may kindly be noted that, said C.M.Appeal was heard in detail after receipt of the Lower Court Records and the same was posted for orders also. Now the same has been adjourned to 14.02.2022 again for Lower Court Records, objection and heareing by the 1[st] Appellate Court; which is not justifiable. It is pertinent to note that unless the property of the 1[st] petitioner is disposed off immediately, his daughter's marriage will be in jeopardy; as the 1[st] petitioner is badly in need of funds for conducting the marriage. The respondents have instituted this C.M.Appeal only to harass and vex the petitioners herein and if the said Appeal is heard; there is every likelihood that the petitioners herein will succeed in the said Appeal. Therefore; an expeditious disposal of the said C.M.Appeal No.14 of 2021 is highly essential; otherwise serious prejudice will be caused to the petitioners.”_ O.P(C).No.654/2022 4 Thus going by the contentions raised in para.8 of O.P(C).No.2450/2021, it is crystal clear that the appeal was heard in detail after receiving lower court records and the same was posted for orders. But no judgment pronounced on the date posted for the same. In view of the said allegations raised, a report was called for from the learned Sub Judge while considering O.P(C).No.2450/2021, who dealt with C.M.A.No.14/2021. As per letter dated 22.12.2021, the learned Sub Judge reported as under: “ _Both sides were heard on 01.12.2021 and adjourned the case for order to 03.12.2021. Meantime on 27.11.2021 the Stenographer of this court went on special casual leave for fifteen days. After reporting the matter to the District Court, the leave was sanctioned. But due to shortage resource people, the alternative arrangement was done only on 06.12.2021. So I could not pronounce the judgment on 3.12.2021. Therefore the same was again adjourned to 10.12.2021. Even though I got another stenographer I didn't get time for sparing to pass order as usual, because other matters also accumulated within the period between 27.11.2021 to 06.12.2021.”_ 4. Thus the report of the Sub Judge also is to the effect that both sides were heard on 01.12.2021 and the case was posted for judgment on 03.12.2021. But the learned Sub Judge could not O.P(C).No.654/2022 5 pronounce the judgment on 03.12.2021 and it was adjourned to 10.12.2021 and on that day it was again adjourned to 14.02.2021 mistakenly, instead of 14.12.2021. It is pertinent to note that O.P(C).No.2450/2021 was filed on 15.12.2021 at this juncture. Thereafter, the case was advanced to 16.12.2021. 5. It is relevant to note further that even though notice served on the respondents in O.P(C).No.2450/2021, nobody appeared on the date of hearing on 20.01.2022 and the judgment was pronounced on 21.01.2022 at 10.15 a.m. It was after pronouncing the judgment, the respondents appeared and filed counter affidavit. Since the same was filed after pronouncing the judgment, the same was not considered by this Court. 6. Coming back to Ext.P9 affidavit filed by the learned counsel for the petitioners/appellants before the court below, therein also it is not stated that the appellants were not heard on 01.12.2021. Ultimately, the judgment was pronounced on O.P(C).No.654/2022 6 20.01.2021 by the appellate court. Ext.P9 was filed only after pronouncing the impugned judgment, which is against the petitioners. Thus Ext.P9 filed only after pronouncing adverse judgment against the petitioners in a case, where the petitioners obtained notice of O.P(C).No.2450/2021, prior to that, wherein the respondents alleged that hearing was completed as extracted above in para.8 is to be evaluated in that context of events. Thus going by the affidavit also, nothing stated in the affidavit as regards to the hearing of the matter in detail as reported by the Sub Judge on 01.12.2021. Thus it appears that though the matter was heard in detail on 1.12.2021 and posted for judgment on 03.12.2021, the petitioners/appellants not challenged the said posting in any matter. It appears that since the Sub Judge could not pronounce the judgment on 3.12.2021 and the pronouncement of the judgment was delayed, the learned Sub Judge posted the same to 10.12.2021. Thus it appears that a detailed hearing was done by the learned Sub O.P(C).No.654/2022 7 Judge on 1.12.2021 and the case was posted to 3.12.2021 for judgment. The appellants' counsel stated in the affidavit that the said hearing was on the stay petition. But the respondents and the Sub Judge categorically submitted that CMA was finally heard on 01.12.2021. Therefore, Ext.P9 affidavit cannot be believed, ignoring the report of the learned Sub Judge. As such the contention raised by the petitioners cannot be sustained, that too, even without appearing before this Court in O.P(C).No.2450/2021, on the date which was posted for hearing on 20.01.2021. Going by the impugned judgment, the same is a detailed one passed on merits. Therefore, the contention raised by the petitioners that, the impugned judgment was passed without hearing, cannot be accepted. 7. Coming back to the crux of the dispute, the petitioners herein filed Suit seeking relief `A' to `F'. Along with the plaint, an interim application I.A.No.2/2021 was filed seeking interim O.P(C).No.654/2022 8 injunction to restrain the defendants from trespassing into the plaint A and B schedule properties and the usage of `C' schedule ramp pathway and the plaint D schedule road and from removing the earth any further from the western, eastern and northern sides of the properties of the 1[st] defendant adjacent to the ending portion of the plaint D schedule road and from changing the lie and nature of the same, destroying its boundaries and also from damaging anything which will affect the value and utility of plaint D schedule road in any manner. The defendants filed objection and the same is extracted in para.3 of the impugned order as follows: _“3. Defendants filed objection to this application contending that right in the sale deeds executed by the 1[st] Defendant, his mother and his sister in favour of the Plaintiffs, the pathway leading to the Plaint A and B Schedule Properties was delineated, which is the Plaint C Schedule Ramp Pathway. Plaintiffs are using the said 3 meters wide Plaint C Schedule Ramp Pathway to access the Plaint A and B Schedule Properties since then. There exists no pathway as described in the Plaint D Schedule. Plaintiffs have right of easement by grant only over the Plaint C Schedule Pathway and the Plaint D Schedule Road is an imaginary one. 1[st] Defendant decided to sell his property to raise funds for the marriage of his daughter. For that purpose, he entrusted the_ O.P(C).No.654/2022 9 _property with the 2[nd] Defendant to divide his property into different plots and to sell it off. In order to provide a pathway to the said plots, a new road was created recently, exclusively through the property of the 1[st] Defendant. On the south-western portion of the south-western plot in the property of the 1[st] Defendant there runs the public road at a height of about 5 feet. In the Plaint D Schedule description of the way was described to be the one starting from the high laying public road. From this aspect itself it is clear that the Plaint D Schedule Way is an imaginary one. The way leading to the ancestral house of the 1[st] Defendant was detailed specifically in the will deed executed by the father of the 1[st] Defendant. Plaintiffs, who had purchased the Plaint A and B Schedule Properties by admitting that Will Deed, estopped from making a claim that there exists another pathway, as stated in the Plaint D Schedule. Plaintiffs have right of easement by grant over the Plaint C Schedule Pathway and the Defendants have no intention to obstruct the same. Under the cover of the ex parte injunction granted in this case, the Plaintiffs and their henchmen were attempting to create a pathway by encroaching into the property of the 1[st] Defendant. O.S.No.346/2021 was a suit instituted by the Plaintiffs herein to declare that the Plaint C Schedule Ramp Pathway was the sole track to their properties. Plaintiffs had admitted therein that the said Ramp Pathway was the only one way to their properties. Present claim of the Plaintiffs are against the said admissions made. For all these reasons, this application was only to be dismissed, it was averred.”_ 8. The learned Munsiff marked Exts.A1 to A7 on the side of the plaintiffs and Exts.B1 to B4 on the side of the defendants. Ext.C1 series commission report also marked. Thereafter, after O.P(C).No.654/2022 10 appraising the contentions raised by both sides, the learned Munsiff partly allowed the petition and thereby and interim injunction granted while disallowing interim injunction in so far as plot `D' schedule way. It is relevant to note that the learned Munsiff also imposed the cost on the plaintiffs. In para.14 of the order passed by the learned Munsiff, non-scheduling of plaint `D' schedule way and the fatal flaw in this regard is highlighted after referring the decision reported in [2016(1) KHC 739], _**Paul v. Varghese & anr.**_ Para.14 of the order of the trial court is as under: _“14. It is also apposite to note that the servient heritage, through which the Plaint D Schedule Way is allegedly passing through, is not seen scheduled in the plaint. Learned Counsel for the Defendant avouched that it was a fatal flaw. True, the said submission has force in regard to the Plaint D Schedule Way. So far as the Plaint C Schedule Ramp Pathway is concerned, the identity of the same can be fixed by virtue of the details provided in the Plaint C Schedule coupled with the description and delineations contained in Exts.A1 to A3 Deeds. But that is not the case with the Plaint D Schedule Way. We cannot cull from the details provided in the Plaint, through whose property the Plaint D Schedule Way is running. In such cases, the servient tenement through which the alleged Plaint D Schedule Way is running ought to be scheduled by the Plaintiffs. It was held by the_ O.P(C).No.654/2022 11 _Hon'ble High Court in Paul v. Varghese and Another, 2016 (1) KHC 739 that:_ _“4. Unless there is a dominant heritage and a servient heritage right of easement cannot be claimed. As these two properties form subject matter of the suit, both of them should be described in separate schedules in the plaint. The way over which the right is claimed should be described in another schedule. In the plaint filed by the respondent the servient heritage is not described in a schedule.”_ 9. Thus it appears, the petitioners, who failed to schedule the servient heritage in the plaint, simply cannot canvass an interim injunction over `D' schedule, based on the defective plaint. In view of the matter, even on merits, the impugned order does not suffer from any perversity, illegality or arbitrariness to have interference by invoking the powers under Article 227 of the Constitution of India. Therefore, this Original Petition is found to be meritless. In view of the matter, this Original Petition stands dismissed. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ O.P(C).No.654/2022 12 ## **APPENDIX OF OP(C) 654/2022** PETITIONERS' EXHIBITS - Exhibit P1 TRUE COPY OF THE PLAINT IN O.S. NO.526/2021 ON THE FILE OF MUNSIFF COURT, NEYYATTINKARA DATED 28.7.2021. - Exhibit P2 TRUE COPY OF I.A. NO.2 OF 2021 IN O.S. NO.526/2021 ON THE FILE OF MUNSIFF COURT, NEYYATTINKARA DATED 28.7.2021. - Exhibit P3 TRUE COPY OF THE ORDER DATED 24.8.2021 IN I.A. NO.2/2021 IN O.S. NO.526/2021 OF THE MUNSIFF COURT, NEYYATTINKARA. - Exhibit P4 TRUE COPY OF THE REPORT DATED 11.8.2021 IN O.S. NO.526/2021 AND SKETCH. - Exhibit P5 TRUE COPY OF THAT PLAINT IN O.S. NO.346/2021 ON THE FILE OF MUNSIFF COURT, NEYYATTINKARA DATED 8.4.2021. - Exhibit P6 TRUE COPY OF THAT ORDER DATED 14.1.2022 IN O.P.(C) NO.2450/2021 OF THIS HON'BLE COURT. - Exhibit P7 TRUE COPY OF JUDGMENT DATED 20.1.2022 IN C.M.A. NO.14/2021 OF THE SUB COURT, NEYYATTINKARA. - Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 21.1.2022 IN O.P. NO.2450/2021 OF THIS HON'BLE COURT. Exhibit P9 TRUE COPY OF AFFIDAVIT DATED 20.1.2022 IN C.M.A. NO.14/2021 FILED BY ADVOCATE FOR PETITIONERS BEFORE THE SUB COURT, NEYYATTINKARA.