## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN**
**WEDNESDAY,THE 12TH DAY OF DECEMBER 2018 / 21ST AGRAHAYANA, 1940 RSA.No. 421 of 2009**
**AGAINST THE JUDGMENT AND DECREE DATED 18-03-2009 IN AS 137/2004 of I ADDL.SUB COURT,TRIVANDRUM**
**AGAINST THE JUDGMENT AND DECREE DATED 26-10-2004 IN OS 876/2003 of III ADDL.MUNSIFF COURT,TRIVANDRUM**
**- - APPELLANT IN R.S.A APPELLANT IN A.S. PLAINTIFF IN SUIT:**
> **1 C.J.ALEXANDER,**
**S/O.LATE C.V.JOSEPH, RESIDING AT KOCHUPURACKAL,, K.P.1/194, MUTTADA P.O., THIRUVANANTHAPURAM.(DIED)**
**(LEGAL HEIR IS IMPLEADED AS ADDL.APPELLANT NO.2)**
> **2. ADDL.APPELLANT**
**ANIL ALEXANDER, AGED 40 YEARS, S/O ALEXANDER KOCHUPURACKAL, K.P. NO.1/194, MUTTADA P.O, KUDAPPANAKKUNNU VILLAGE, THIRUVANANTHAPURAM**
***THE LEGAL HEIR OF THE DECEASED SOLE APPELLANT IS IMPLEADED AS ADDL.APPELLANT NO.2 AS PER THE ORDER DATED 12/10/2017 IN I.A.2573/2017.**
**BY ADVS.**
**SRI.S.V.BALAKRISHNA IYER (SR.) SMT.M.HEMALATHA SRI.K.JAYAKUMAR (SR.) SRI.P.B.KRISHNAN**
**- - RESPONDENT IN R.S.A. RESPONDENT IN A.S. DEFENDANT IN SUIT.:**
**A.N.THANKAPPAN**
**S/O.LATE NARAYANAN, RESIDING AT ANNIE MANGALAM,, MUTTADA P.O., THIRUVANANTHAPURAM.**
**BY ADV. SRI.G.S.REGHUNATH**
**THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**RSA.No. 421 of 2009 2**
## **JUDGMENT**
Aggrieved by the decree and judgment of the IIIrd Additional Munsiff's Court, Thiruvananthapuram in O.S.No.876/2003 and the Additional Sub Court, Thiruvananthapuram in A.S.No.137/2004, the
appellant/plantiff came up with this appeal.
2. A suit for mandatory injunction to direct the defendant to construct demolished portion of compound wall on the south western corner of plaint schedule property to an extent of 7 feet, and to remove the small gate fixed at the south eastern corner of plaint schedule property, a relief of permanent prohibitory injunction from demolishing any part of the compound wall around the plaint schedule property and not to commit trespass upon any portion thereof also sought. The suit was ended in dismissal both in the Trial Court and in the First Appellate Court. Hence, came up with this second appeal.
2. The property having an extent of 8 cents in Survey No.396/1 (plaint schedule) purchased under Ext.A1 on 30/4/1975, by the plaintiffs. On the same
## **RSA.No. 421 of 2009 3**
day the defendant had purchased the eastern extent of
7.771 cents comprised in Survey No.395/1 from the vendor under Ext.A3, original of the same produced and marked as Ext.B1. There is a western road passing through the western side of property of the plaintiff. A way was provided to the defendant through the southern most extremity of plaintiff's property as a shortcut for the convenient user of his property for easy access on a specific understanding that whenever the defendant acquires any alternative way this will be surrendered to the plaintiff. Later on, under Ext.A3 on 27/1/2003, the defendant had acquired an extent of 8.380 cents of property comprised in Re-Survey No. 557/14. The said property is lying just south to the way provided to the property of defendant and lying adjoining to the western road. Thereby the first defendant obtained direct access to their property
covered under Ext.B1 document from the western road. After the acquisition of the said property the
agreement and the undertaking has not been fulfilled by
the defendant which has necessitated in instituting this suit.
3. The defendant, in turn, contested the suit
disputing and denying the allegations and averments
## **RSA.No. 421 of 2009 4**
in the plaint but advanced a case that the southern way
provided to the property covered by Ext.B1 really forms part of their registered holding covered by Ext.B1 document. It is further contended that it situated outside the property of plaintiff. There was no occasion for granting any permission or seeking any permission or to set apart any way by the plaintiff as alleged in the plaint.
4. It was also _inter alia_ contended by the
defendant that the property of plaintiff lying within a well defined boundaries bounded by granite compound wall. The way in dispute is also bounded by compound wall on either side, that is on the northern and southern side. There are two gates installed on either side of the said way and it was installed by the
defendant in 1975 itself.
5. The Trial Court as well as the First Appellate
Court dismissed the suit finding that the claim raised by the plaintiff is not sustainable. Aggrieved by the said decree and judgment, the plaintiff came up with this appeal.
6. The learned counsel for the respondent submitted that the suit is one for injunction
simplicitor by way of mandatory and prohibitory
## **RSA.No. 421 of 2009 5**
injunction. Mandatory injunction sought for the reconstruction of portion of the demolished compound wall lying on the south western corner of plaint schedule property and also to remove the small gate fixed at the south eastern corner of plaint schedule property. The dispute is pertaining to the south western corner and south eastern corner of the plaint schedule property. _Inter alia,_ a relief by way of permanent prohibitory injunction against trespass also incorporated. According to the plaintiff, the property which is set apart as way will form part of their property, but it is disputed by the defendant. The report of the Commissioner and the photographs which were exhibited as B5 series, would clearly show that this way is bounded by compound wall on its southern side as well as northern side. If that be so, there can be two walls on the south western corner of the plaint schedule property, one is excluding the southern way and other in inclusive of the southern way. No survey commission was deputed to locate the plaint schedule property at least to show that which is the wall which constitutes and defines the southern boundary of the plaintiff's property.
7. It is also settled that when there is disputed
## **RSA.No. 421 of 2009 6**
boundary especially when there is two walls one is on the southern side of the way and other is on the northern side of the way in dispute and when plaintiff claim that it is the southern wall which constitutes their boundary and if it was disputed by the defendant a mere relief of mandatory injunction alone is not sufficient. Without adjudicating the real boundary which constitutes or separates the property of plaintiff from that of remaining property on their southern side, no relief can be granted.
8. The specific contention raised by the defendant
that the southern property which is lying as the way bounded by compound wall on either side will form part of the registered holding obtained by them cannot be sustained simply for the reason that in the registered deed of title Ext.B1 nothing whisper made mention with respect to passing of title or transferring of right, title or interest over any portion of property lying south to the property of the plaintiff. A mere perusal of Ext.B1 document would show that what is actually conveyed under that document comes to 7.771 cent of
property lying on the east of property sold by the very same seller on that day to the plaintiff. The
description is clear and unambiguous. There is not even
## **RSA.No. 421 of 2009 7**
mention with respect title, right or interest over any portion of property lying on the southern side of property of plaintiff. Even there is no mentioning of grant of any limited right of way or right to use any property as way lying on the south of the plaintiff's property. So, as per the document of title Ext.B1 it is too difficult to accept the argument advanced by the defendant. But he took support from the admission made in the plaint and at the examination of PW1. During the course of cross examination he had categorically admitted that he had never permitted the defendant to pass over through his property and no permission was granted to use any portion of his property as a way. He had also gone up to the extent of denying the pleading stated in the plaint to that effect. If that be so, it may support the case advanced by the defendant that the way was set apart as on the date of execution of the sale. But, the case advanced by the defendant is resting on the title over the property and claims interest, right and title over the property by virtue of Ext.B1 conveyance and that cannot be accepted even for a moment.
9. Yet another argument was also advanced by the
learned counsel for the appellant on two grounds.
**RSA.No. 421 of 2009 8**
Firstly, on the reason that there was an understanding to provide a way to the property of defendant. Of course, it was denied by the plaintiff while in the box during the course of examination and turned against what is pleaded in the plaint to that effect. But, there is no case for the defendant that he was having any other alternative way as on the date of acquisition
of property under Ext.B1. It is also now settled that
when the plaintiff himself has gone against the pleading raised in the plaint with respect to the permission granted and the understanding arrived at based on the permission granted to surrender the property, when there is alternative way is available, no reliance can be placed on the plaintiff. The learned
counsel for the respondent/defendant relied on the decision rendered by the Apex Court in _**Kashi Nath v. Jaganath ((2003) 8 SCC 740)**_ so as to advance an
argument that the plaintiff who have gone against the plaint pleading should be non suited and no reliance can be placed on his evidence especially while granting a discretionary relief. The case advanced by the plaintiff really resting on the understanding arrived at by the parties especially when there is no
alternative way available at that time and the learned
**RSA.No. 421 of 2009 9**
counsel took support from Section 41 of the Easement Act, 1882, which deals with relinquishment of right of way by easement of necessity. On acquisition of an alternative way the easement of necessity would stand distinguished by virtue of Section 41 of the Easement Act, based on which it was submitted that the understanding arrived at by the parties to provide a way is intended for providing a way in the absence of an alternative as an easement by necessity by the act of parties and not by intervention of the court. There may not be any quarrel of the legal position that when there is acquisition of alternative way, the way necessity it would come to an end and it will stand extinguished. Thereafter, no right can be claimed over the property which were granted or agreed to be given by way of necessity. But in the instant case, since the plaintiff himself has deviated from the pleading based on the plaint that there was an understanding and permission was granted to use the way based on the understanding and when the plaintiff says that no such permission was granted, it will take away the very same basis of the case advanced by the plaintiff coupled with the lack of substantial relief sought in the plaint makes the finding rendered by both the Trial
**RSA.No. 421 of 2009 10**
Court and the First Appellate Court free from any interference from this court by way of second appeal. Hence the appeal deserves only a dismissal but without cost.
In the result, the appeal dismissed. No costs.
## **Sd/-**
## **P.SOMARAJAN**
## **JUDGE**
//TRUE COPY// P.A. TO JUDGE
msp
