Cheriyan Abraham Malayampallil Veettil v. Chandran Pramod Bhavan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA TUESDAY, THE 18[TH] DAY OF OCTOBER 2022 / 26TH ASWINA, 1944** **RSA NO. 567 OF 2016** **AGAINST THE JUDGMENT AND DECREE DATED 21.10.2015 IN AS 130/2008 OF SUB COURT, CHENGANNUR ARISEN FROM JUDGMENT AND DECREE DATED 09.01.2006 IN OS 10/2003 OF MUNSIFF'S COURT,CHENGANNUR** ## **APPELLANT/PLAINTIFF:** CHERIYAN ABRAHAM MALAYAMPALLIL VEETTIL, THITTAMEL MURI, CHENGANNUR VILLAGE AND TALUK, ALAPPUZHA DISTRICT. BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX ## **RESPONDENTS/DEFENDANTS:** 1 CHANDRAN PRAMOD BHAVAN, THITTAMEL MURI, CHENGANNUR MURI & VILLAGE, ALAPPUZHA DISTRICT.689121 2 VIJAYAMMA PRAMOD BHAVAN, THITTAMEL MURI, CHENGANNUR MURI & VILLAGE, ALAPPUZHA DISTRICT.689121 3 PRADEEP VALUZHATHIL, THITTAMEL MURI, CHENGANNUR MURI & VILLAGE, ALAPPUZHA DISTRICT.689121 4 SUJI KARINGATTIL, VALUZHATHIL, THITTAMEL MURI, CHENGANNUR MURI & VILLAGE, ALAPPUZHA DISTRICT.689121 SUNI KARINGATTIL, VALUZHATHIL, THITTAMEL MURI, 5 CHENGANNUR MURI & VILLAGE, ALAPPUZHA DISTRICT.689121 6 KUTTY THUNDIYUZHATHIL, KARINGATTIL, VALUZHATHIL, THITTAMEL MURI, CHENGANNUR MURI & VILLAGE, ALAPPUZHA DISTRICT.689121 R.S.A.No.567/2016 2 - 7 LAKSHMI - VALUZHATHIL, THITTAMEL MURI, CHENGANNUR MURI & VILLAGE, ALAPPUZHA DISTRICT.689121 - 8 BABU - THUNDIYUZHATHIL, THITTAMEL MURI, CHENGANNUR MURI & VILLAGE, ALAPPUZHA DISTRICT.689121 - 9 SHAJI THUNDIYUZHATHIL, THITTAMEL MURI, CHENGANNUR MURI & VILLAGE, ALAPPUZHA DISTRICT.689121 - 10 SATHY DEVI THUNDIYUZHATHIL, THITTAMEL MURI, CHENGANNUR MURI & VILLAGE, ALAPPUZHA DISTRICT.689121 - BY ADV SRI.S.HARIKRISHNAN R1, R2, R4 TO R9 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07.10.2022, THE COURT ON 18.10.2022 DELIVERED THE FOLLOWING: R.S.A.No.567/2016 3 ## **M.R.ANITHA, J** ****************** R.S.A.No.567 of 2016 ---------------------------------------------Dated this the 18[th] day of October, 2022 ## **JUDGMENT** This appeal has been directed against the judgment and decree in A.S.No.130/2008 on the file of Subordinate Judge's Court, Chengannur which in turn arise out of the judgment and decree in O.S.No.10/2003 on the files of Munsiff's Court, Chengannur. 2. Plaintiff is the appellant. Suit was one for permanent injunction. (Parties would hereinafter be referred as per their status before the trial court). 3. Plaint schedule property belongs to the plaintiff and it lies in two 'taks' (beds). There is a municipal road on the southern side of the plaint schedule property and on the eastern R.S.A.No.567/2016 4 side the property of his father-in-law is situated. Separating the property on the west and the plaint schedule property, there is a compound wall. The family house is situated on the southern tak which is lying in a higher level than the northern tak. The southern municipal road is 3 ft higher level from the plaint schedule property. During drought season neighbouring property owners used to take water from the well situated in the plaint schedule property, so that the eastern boundary of the plaint schedule property is being used by them and hence there was no cultivation in that portion. The defendants are residing on the northern side of the plaint schedule property and they never used a portion of the plaint schedule property as means of access to the southern municipal road. They are using the pathway on the northern side which have access to Kalluvarambu-Thittamel municipal road having vehicular facility. There is no provision for entrance from the plaint schedule property to the defendant's property and there exist large granite rocks in the plaint schedule property. With the intention to construct a new way through the eastern extremity of the plaint schedule property respondents R.S.A.No.567/2016 5 trespassed into the plaint schedule property on 24.12.2002 and demolished portion of bund on the eastern side which separated the northern and southern taks of the plaint schedule property. Hence a complaint was launched before the Chengannoor police station and Crime No.726/02 was registered in connection with the same. Plaintiffs sustained a loss of Rs.2,000/- due to the demolition of the bund by the defendants. Hence the defendants are trying to construct a new way through the eastern extremity of the plaint schedule property by demolishing the bund. Hence the suit was filed for permanent injunction and for damages. 4. Defendants filed written statement contending that there is a way on the eastern portion of the plaint schedule property having width of 4 ft to reach the southern municipal road which is being used by the defendants and other people residing on the northern side from time immemorial. In the middle portion of the eastern compound wall, there are steps for entering the eastern way of the plaint schedule property. There is no old bund separating the northern and southern taks of the plaint schedule property. On 22.12.2002 and 23.12.2002 R.S.A.No.567/2016 6 plaintiffs constructed the bund separating the northern and southern taks in east west direction through the way passing through the eastern extremity of the plaint schedule property to cause obstruction to the way to the residents of the locality. Defendants or any near residents in the locality never used to fetch water from the well in the plaint schedule property during drought season, as alleged. The eastern property owners of the plaint schedule property constructed a compound wall leaving the way. They are not using Kalluvarambu-Thittamel municipal road on the north as alleged. After the construction of KalluvarambuThittamel road, defendants and others in the locality are using the way on the eastern side for ingress and egress to the southern municipal road from Kalluvarambu-Thittamel road. There is no cartable road to the Kalluvarambu-Thittamel to the defendants' property. Defendants have not demolished any portion of the compound wall, as alleged. Crime was registered at the influence of the plaintiff. When the plaintiff obstructed the way, a case was filed before the Revenue Divisional Officer. When the plaintiff tried to block the way used by the general public, the R.S.A.No.567/2016 7 defendant obstructed. Thereafter, the case was filed raising false allegations against the defendants. 5. PW1 and PW2 were examined and Exts.A1 to A3 were marked from the side of the plaintiff. DW1 and DW2 were examined and Exts.B1 and B2 were marked from the side of defendants. 6. Learned Munsiff, on evaluating the facts and circumstances and evidence found that plaintiff failed to prove the cause of action and also absence of a way, as alleged, through the eastern side of the plaint schedule property and accordingly the suit was dismissed. Against which appeal was filed and the learned Subordinate Judge on reappreciation of the facts and circumstances and evidence, confirmed the judgment and decree passed by the trial court. 7. Having lost in two forums, the appellant/plaintiff approaches this Court in second appeal. At the time of admission, this Court formulated the following substantial question of law. R.S.A.No.567/2016 8 “ _1. Did not the courts below err in law by refusing to grant a decree of permanent prohibitory injunction, when the defendants have neither established nor claimed any legally recognized right to use a portion of the property of the plaintiff/appellant as a pathway?_ _2. Did not the lower appellate court err in law by placing reliance on the finding of criminal court, which was not even placed on record, to nonsuit the plaintiff/appellant?_ _3. Whether the courts below have acted perversely by giving much stress on the alleged discrepancy in the mentioning of date of cause of action, overlooking the real controversy between the parties?_ _4. Whether in the facts and circumstances of the case the finding of the court below that plaintiff has suppressed material facts and made misrepresentation which disentitle him from getting the equitable relief of injunction is perverse, erroneous and unjustified?”_ 8. Notice was issued to the respondent. Lower court records were called for and both sides were heard. 9. According to the learned counsel for the appellant, the defendants could not establish any right to use a portion of the R.S.A.No.567/2016 9 plaint schedule property and hence the suit filed by the plaintiff seeking for injunction ought to have been allowed. It is also his contention that the discrepancy occurred during the evidence of PW1 in stating the dates of the cause of action ought to have been ignored in view of the fact that intention to cut open a way of 4 ft width through the plaint schedule property is proved when the defendants claim a way of 4 ft wide through the plaint schedule property. Whereas the Commissioner's report clearly shows the width of the way as 1½ feet, the existence of which has been pleaded in the plaint. It is also contended by him that defendants 1 and 2 have direct access to the southern municipal road as borne out from the Commissioner's report and they have no occasion or need to use the way situated on the eastern portion of the plaint schedule property but even then they are also claiming the right of 4 ft wide way through the plaint schedule property. In the said circumstances, the dismissal of the suit by the trial court which has been confirmed by the first appellate court is due to misappreciation of evidence adduced by the parties. R.S.A.No.567/2016 10 10. Learned counsel for the defendants, on the other hand, would contend that admittedly, there is a way through the eastern portion of the plaint schedule property. It has come out in evidence that the plaintiff attempted to block the way by constructing a bund in east west direction separating the two taks during Christmas vacation and thereafter filed the suit suppressing the material facts without any cause of action and hence the courts below rightly refused discretionary relief of injunction to the plaintiff and hence there is no reason whatsoever to interfere with the concurrent findings arrived at by the two courts, the learned counsel contends. 11. The fact that there is a way with a width of 1½ ft through the northern portion of plaint schedule property is admitted by the plaintiff. But the specific allegation of the plaintiff is that, that has been used by the neighbouring property owners for fetching water from the well situated in the plaint schedule property during drought season. It is true that during examination, plaintiff as PW1 stated that for taking water, people used to come through their courtyard. So, that evidence of PW1 R.S.A.No.567/2016 11 is not in consonance with the pleadings in the plaint that the way has been used by the neighbouring people for taking water from the well. The Commissioner's report which was marked without objection also would establish the existence of a way through the eastern side of the plaint schedule property. The Commissioner's report is marked as Ext.C1 and rough sketch is marked as Ext.C3. In Ext.C1 report, the Commissioner has reported that the way on the eastern extremity of the plaint schedule property has an average width of 1½ feet. The Commissioner would also report that on the north eastern corner of the plaint schedule property i.e the second tak lying in lower level than the first tak, there is a rock having surface of 6 ft. which is situated at a height of almost 3½ ft from the pathway situated north to it. It is also reported that the rocks are found spread in that area here and there and in the remaining, there is a mud ridge and wild growth above that. So, the Commissioner's report would indicate that though Commissioner noted a way on the eastern portion of plaint schedule property it has been noted as a foot path having 1½ ft. In the plaint also, plaintiff refers about a way on the R.S.A.No.567/2016 12 eastern extremity and during evidence, PW1 admit that there is a way of 1 ft. width on the eastern portion of the plaint schedule property. But the crucial question is whether the courts below were justified in refusing injunction to the plaintiff on the ground of existence of such foot path though admittedly defendants could not establish any legal right to use of the said way. 12. In the written statement, they would contend that there is a way in existence time immemorial through the eastern side of the plaint schedule property being used by the general public. It is also contended in the written statement that a complaint was filed before the Revenue Divisional Officer in connection with the obstruction of the said way. So, it appears that defendants are claiming a public way through the eastern side of the plaint schedule property but nothing has come out about the plight of the complaint filed before the Revenue Divisional Officer by the defendants. They also did not raise any counter claim alleging any public way through the plaint schedule property on the eastern side with a width of 4 ft. So when the defendant could not establish any legal right for use of way R.S.A.No.567/2016 13 through the eastern side of plaint schedule property whether the courts below are justified in refusing the injunction sought for by the plaintiff, is the crucial question. 13. Learned counsel for the plaintiff would contend that merely the fact that the neighbouring owners used the plaintiff's property as a short cut for ingress and egress will not confer any legal right upon them to use the plaint schedule property. In this context, he would drew my attention to **Cherootty Balan v. Velayudhan Nair : 1998 KHC 281 : AIR 1998 Ker 164** wherein, while dealing with Section 15 of the Easements Act it has been held that under Section 15 of the Easements Act uninterrupted user for 20 years, as of right, peaceably and openly must be made out. A permissive user cannot confer any right and it is also held that it is a common feature in Indian villages that people generally pass over the ridges between the paddy fields. Their right of way can only be permissive. It is also held that there is no evidence to hold that he is enjoying the B schedule ridge as of right for a continuous period of 20 years against the interest of the true owner. In the absence of any R.S.A.No.567/2016 14 evidence to prove the necessary ingredients under Section 15 of the Easements Act, it was held that plaintiff cannot claim easement by prescription. 14. **Ibrahimkutty v. Abdul Rahumankunju : 1992(2)** **KLT 775** was drawn to my attention by the learned counsel to contend that in order to claim an easement right the pleading should be specific and precise. It has been emphasised in paragraph 9 of the said judgment that whether the claim is for an easement right it is all the more necessary that the pleading should be specific and precise. Right of easement is a precarious and special right claimed over the land of another, hence it is highly necessary that pleadings should be precise and clear and not vague. 15. **Badariya Madrassa Committee v. Antony Robert : 2006 (2) KLT 636** was further placed reliance wherein also the ingredients to attract Section 15 the prescriptive right of easement has been dealt with. In paragraph 6 of that decision **Justiniano Antao v. Bernadette B. Pereira (2005) 1 SCC 471** has been quoted which reads thus: R.S.A.No.567/2016 15 _“But in order to establish a right by way of prescription one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. There should be categorical pleadings that since what date to which date one is using the access for the last 20 years. In order to establish the right of prescription to the detriment of the other party, one has to aver specific pleadings and categorical evidence. In the present case, after going through the pleadings as well as the statement of the witnesses it is more than clear that the plaintiff has failed to establish that she has been using the access peacefully, openly as of right for the last 20 years."_ 16. It has been discussed in paragraph 8 as follows: _“Apart from stating that the way has been used by prescription there is no specific pleading involving all the seven ingredients of Section 15 of the Act i.e. (1) There must be pre-existing easement which must have been enjoyed by the dominant owner; (2) the enjoyment must have been peaceable; (3) the enjoyment must have been as an easement; (4) The enjoyment must have been as of right; (5) the right must have been enjoyed openly; (6) the enjoyment must have been for a period of twenty years and (7) the enjoyment for 20 years_ R.S.A.No.567/2016 16 _must have been without interruption. (Krishnan v. Nanukuttan (ILR 1986 (1) Ker.526).”_ ## 17. **Siva Temple of Poovathoor Panniprayar Devaswom Board v. Parameswara Pillai : 2010(2) KLT 890** is also cited wherein it has been held that walking along an open temple property would not accrue any right by such walking so long as such usage is without any right. 18. In the present case, the pleadings in the written statement would not reveal that they are claiming any easement right by prescription on the eastern portion of the plaint schedule property. What is pleaded in the written statement is that the general public in the locality is using the way from time immemorial. It has been categorically found by the first appellate court that defendants could not establish any right of way through the plaintiff's property. So, in the above circumstances, the point for consideration is whether the reason stated by the courts below is sufficient to deny the prayer for injunction sought for by the plaintiff alleging trespass. The judgment passed by the trial court would show that the learned Munsiff in paragraph 6 R.S.A.No.567/2016 17 discussed the right of the plaintiff over the plaint schedule property and it has been discussed that Ext.A1 is the title deed of the plaintiff showing an extent of 7 cents in Survey No.13/4/1. It is further stated that Ext.A2 is the prior document of Ext.A1 sale deed wherein item No.2 was sold to plaintiff as per Ext.A1. In Ext.A2 extent is shown as 5.67 Ares. So, trial court found that both documents are not tallying with regard to the extent. Plaintiff did not offer any explanation in that regard. 19. But, I want to point out that the learned Munsiff was thoroughly mistaken while discussing the above factors because the specific pleading of the plaintiff in the plaint is that he obtained plaint schedule property as per Exts.A1 and A2 and Ext.A2 is not the prior title deed of Ext.A1. So also the difference in extent pointed out in Ext.A3 tax receipt is also without properly understanding the pleadings and evidence adduced by the plaintiff. Ext.A2 is the document by which plaintiff purchased 14 cents as item No.2, that is, on the northern extremity and Ext.A1 is the subsequent document by which plaintiff purchased 7 cents (2 Ares 83 sq.metres) on the southern side of the R.S.A.No.567/2016 18 property covered by Ext.A2. It is also pertinent to note that even though in the plaint originally they have shown only 7 cents as the plaint schedule property, plaint has been subsequently amended by adding 14 cents covered by Ext.A1 and the total extent of property is shown as 21 cents. Ext.A3 tax receipt is for 8 Ares 10 sq.metres with respect to Survey No.237/30 and 1 Are 21 sq.metres in survey 237/14/1. So Exts.A1 to A3 documents would clearly prove the right, title and possession of the plaintiff over the entire plaint schedule property. Finding to the contra entered into by the learned Munsiff is not noted by the first appellate court. 20. Though a substantial question of law has been raised by the first appellate court with respect to the finding of criminal court, actually no such finding has been entered into by the first appellate court. So that question does not arise for consideration. 21. Learned Munsiff also taken note of the discrepancy in the evidence of PW1 as to the cause of action since in the plaint the averment is that defendants demolished the granite wall on 24.12.2002 but he denied that fact before the court and the date R.S.A.No.567/2016 19 has been referred as 23.12.2002. But in another occasion he stated that the demolishion of the compound wall by the defendant was on 24.12.2002. All those factors are not much material since the cause of action is with regard to the construction of the wall. It is true that plaintiff has got a version that the granite wall was an old one, the Commissioner reported its age as of one month. So, it appears that the granite wall has been constructed by him during the end of December, 2002 and when he constructed the same the obstruction was raised by the defendants and that has resulted in filing the suit. 22. But the question is whether there is any illegality in the plaintiff constructing the granite wall in his property even obstructing the way. Since the defendant could not allege or prove any legal right to use the way in the plaint schedule property, the act of the plaintiff in constructing the wall or making obstruction in using the way cannot be said as illegal. On analysing the lie of the way also, though 1½ ft wide way has been noted by the Commissioner in his report, it is also reported that on the north eastern corner of the plaint schedule property R.S.A.No.567/2016 20 there is a rock having surface of 6 ft and that is situated in a height of about 3 ½ ft from the way situated on the northern side. Commissioner has not reported about any steps or anything for climbing upon the said rock from the northern way. Commissioner has noted three steps from the western property to the way. But, admittedly, that is the property of the father-inlaw of the plaintiff. So, steps erected from the property of the father-in-law to the plaintiff's property cannot, at any moment, be taken as indication of any public way through the plaint schedule property. So even if the people in the locality are occasionally passing through the way situated on the northern portion of plaint schedule property, since they could not establish any legal right to use the plaint schedule property, they cannot prevent the plaintiff from enclosing his property by constructing any wall. So also, though the Commissioner could note only a way having 1½ ft wide, the defendants are claiming a way of 4 ft wide through the plaint schedule property. So, that would itself prove the cause of action for filing the suit by the plaintiff since the defendants are raising right of way wide 4 ft illegally through the R.S.A.No.567/2016 21 plaintiff's property. As has been pointed out by the learned counsel, first and second defendants have direct access to the southern municipal road. Defendants 4 and 5 also have direct access to the southern municipal road. Specific case of the plaintiff is that the defendants residing on the northern side of the plaint schedule property are having access to the way situated on the north Kalluvarambu-Thittamel road. Even otherwise, without establishing any right over the plaintiff's property for ingress and egress, defendants cannot make any obstruction to the plaintiff in carrying out any construction even blocking the 1.5 ft width way noted by the Commissioner. 23. The findings of the court below that the plaintiff failed to prove cause of action is also not sustainable since the contentions advanced by the defendant claiming a way having 4 ft. width through the plaint schedule property itself would show their intention for causing interference to the plaintiff for the peaceful enjoyment of his property. So, in effect, the findings entered into by the courts below is without appreciating the facts and circumstances and law involved in a correct perspective and R.S.A.No.567/2016 22 hence is liable to be set aside. At the time of argument, learned counsel for the plaintiff concedes that the claim for damages is not pressed. In the result, appeal allowed in part. The judgment and decree passed by the courts below is set aside in part and suit decreed partly restraining the defendants from trespassing into the plaint schedule property or destroying the boundary or committing any waste in the plaint schedule property. In the facts and circumstances, the parties shall bear their respective costs. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge