## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN**
**TUESDAY, THE 4TH DAY OF JULY 2017/13TH ASHADHA, 1939**
## **SA.No. 666 of 2000 (D)**
## **-----------------------**
## **AGAINST THE JUDGMENT IN AS 37/1998 of PRINCIPAL SUB COURT,KOCHI**
**AGAINST THE JUDGMENT AND DECREE IN OS NO. 81/1996 & O.S NO.119/1996 of PRINCIPAL MUNSIFF COURT, KOCHI**
## **APPELLANT/PLAINTIFF/APPELLANT:**
**---------------------------------------------------MRS. BENNY RAPHAEL, W/O RAPHAEL C.G., CHULLIKKAL HOUSE RAMESWARAM WEST MURI, THOPPUMPADY VILLAGE, COCHIN TALUK ERNAKULAM DISTRICT**
## **BY ADV. SRI.P.BABU KUMAR**
## **RESPONDENT/DEFENDANT/RESPONDENT**
**-------------------------------------------------------------**
**C.G MAXCY, S/O LATE C.R GEORGE, CHULLIKKAL HOUSE KARUVELIPADI WEST, THOPPUMPADY VILLAGE, COCHIN TALUK ERNAKULAM DISTRICT**
**BY ADV. SRI.SABU GEORGE SRI.NIDHI BALACHANDRAN**
**THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **K. RAMAKRISHNAN, J. -------------------------------**
## **S.A.No.666 of 2000**
## **---------------------------------------------Dated this the 4[th] day of July, 2017**
## **J U D G M E N T**
Dissatisfied plaintiff in O.S.No.119 of 1996 on the file of the Munsiff Court, Cochin is the appellant herein. The suit was one filed by the plaintiff for permanent prohibitory injunction as well as mandatory injunction. It is alleged in the plaint that plaintiff is the absolute owner of the plaint schedule property comprised in Survey Nos.1163/3 and 1166/9 of Thoppumpady Village having an extent of 4.630 cents obtained as per document No.5147/1994 dated 01.11.1994. According to the plaintiff, she was provided a passage having a width of 10 links along the northern boundary to enter into her residential compound. The pathway starts from the public road on the east and reaches the Tarwad compound of the plaintiff's husband. Her husband has got a plot immediately on the east of plaintiff's property and plaintiff got this eastern property from her husband by way of gift deed. The property of the plaintiff and defendant are lying contiguously. On the north of the property of the plaintiff and her husband there is a compound wall running in east west direction. On the north of compound wall there is a pathway having a width of 10 links (in fact it is 10 feet). The defendant put up a compound wall and tried to close the same by
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putting up pillar encroaching the property of the husband of the plaintiff. So her husband filed O.S. No.81/1996 for recovery possession of that encroached area and since the pathway was obstructed to the property of the plaintiff, she filed O.S.No.119/96 for injunction both prohibitory and mandatory as claimed above.
2. The defendant filed written statement contending that the suit is not maintainable and there is no path way provided as claimed and there is no necessity for any path way to be provided as the property was sold to the husband of the plaintiff, which is abetting a road on the east and husband has given a portion of the property to the plaintiff here and as such she did not get any right of way through the property of the defendant. So he prayed for dismissal of the suit.
3. The suit was tried along with O.S No.81/96 filed by her husband for recovery of possession and the husband of the plaintiff was examined as PW1 and Exts.A1 to A4 were marked on the side of the plaintiff. The sole defendant was examined as DW1 and Exts.B1 and B2 were marked on his side. Further Exts. C1 and C2 were also marked. After considering the evidence on record, the trial court by a common judgment decreed O.S No.81/96 but found that the plaintiff in O.S.No.119/96 has failed to prove that she has got any right over the alleged path way and dismissed that suit. No appeal was filed against the decree and judgment in O.S
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No.81/96. Dissatisfied with the decree and judgment passed by the trial court in O.S No.119/96, the appellant filed A.S No.37/98 before the Sub Court, Kochi and the Sub Court Kochi dismissed the appeal by the impugned judgment. Dissatisfied with the same the present second appeal has been preferred by the appellantplaintiff by the court below. When the appeal was admitted, this Court appears to have accepted the substantial question of law raised in the second appeal in the appeal memorandum which reads as follows:
“i. Whether this Hon'ble Court in Second Appeal can take note of the subsequent events and mould its decree accordingly?
ii. When the claim of defendant that the property or pathway is his exclusive property in one suit, has been found to be not so in another suit, and found that the said property and pathway is only co-ownership property, and the said defendant is only one among other co-owners in another later Suit (to which the said defendant is also a party), can such a defendant be justified in maintaining his earlier plea or claim?.
iii. Whether a co-owner, without the junction of other co-owners, oppose or object to the user of a common pathway by the wife of one of the co-owners, for entry to her residential property, when nobody has a case that the wife of the co-owner is a trespasser and when such lady does not claim any ownership right in the disputed pathway?.
iv. In a suit for injunction against user of a pathway, is it necessary for the plaintiff to plead any easementary right or any other right under which she claims the user of pathway and whether the plaintiff cannot maintain the suit for injunction against user of pathway?.
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v. Whether a party cannot claim a right of way over a passage even in the absence of any mention of any right in the title deed?.
vi. In the facts and circumstances of the case, are the judgments and Decrees sustainable, more so in view of the subsequent events?.”
4. Heard Sri. Babu kumar learned counsel appearing for the appellant and Sri. Sabu George learned counsel appearing for the respondent.
5. Learned Counsel for the appellant submitted that there is a Tarawad house behind the plaint schedule property and the way is intended to go to the Tarawad house. The plaintiff being the member of the Tharavadu entitled to use the path way. Further the entire property originally belonged to one person and by virtue of the assignment in favour of the husband of the plaintiff, that has been severed and thereby they are entitled to get right of way by way of necessity. These aspects have not been considered by the court below according to the learned counsel for the appellant.
6. On the other hand, the counsel for the respondent submitted that when the original owner sold a portion of the property, it was abetting the road on the eastern side and there was no necessity to give any path way for convenient enjoyment of the plaint schedule property. Further the severance has come when she obtained a portion of the property which was gifted by her husband and as such she is not entitled to get any right through
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the property of the defendant. According to him, the courts below have concurrently found on facts that the plaintiff is not entitled to get any relief and rightly dismissed the suit. No substantial question of law has arisen for consideration.
7. It is an admitted fact that the plaint schedule property along with other properties originally belonged to a common owner, out of which a portion of the property was purchased by the husband of the plaintiff who is the plaintiff in O.S No.81/1996 which was tried along with this case. It is also not in dispute that the property purchased by the plaintiff's husband was abetting a road on the eastern side and there is no necessity for any path way to be provided for enjoyment of this portion of the land through the remaining property of the original assignor. Further even in the document, there is nothing mentioned about the right of way provided for convenient enjoyment of this property through the neighbouring property as well. Even in the plaint the plaintiff has no specific case as to the nature of right of way claimed by her. She is not claiming any easement by necessity or by prescription. Though it was vaguely mentioned that a way was provided on the northern side of their property to go to the Tarawad house, there is nothing to connect with the plaint schedule property as well. Further no easement by grant in respect of any path way provided in the document of assignment in favour of the husband of the
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## **S.A.No.666 of 2000**
plaintiff and from the circumstances and also from the Commissioner's report Ext. C1 and C2, it is clear that there is no necessity to provide such a path way also as the property covered by the assignment in favour of the husband of the plaintiff is abetting the road on the eastern side and they can very well use the property with the access to the road and there is no necessity to have any path way to be provided along the property of the assignor at that time. So under such circumstances the courts below were perfectly justified in coming to the conclusion that the plaintiff has failed to prove the nature of right claimed by her through the pathway and there was no way provided by way of grant and there is no necessity arises to provide a path way through the property of the defendant as well and as such the plaintiff is not entitled to get any injunction either prohibitory or mandatory in respect of the path way claimed by her through the property of the defendant and rightly dismissed the suit. Since the right of the parties have been considered on the base of facts and concurrently come to the conclusion on proper appreciation of evidence on facts, there is no substantial question of law arose for consideration in this appeal which has to be decided by this court. So the second appeal lacks merits and the same is hereby dismissed.
In the result, the second appeal fails and the same is hereby
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## **S.A.No.666 of 2000**
dismissed confirming the decree and judgment of the Sub Court, Kochi in A.S No.37/1998 and confirming the decree and judgment of Munsiff Court, Kochi in O.S.No.119/96. Considering the relationship between the parties the parties are directed to bear the respective cost in the appeal.
Sd/-
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**K. RAMAKRISHNAN, JUDGE**
//TRUE COPY//
PA TO JUDGE
