Ikkukutty Thampai and others v Easwary Thampai and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 30TH DAY OF MAY 2013/9TH JYAISHTA 1935** ## **RSA.No. 302 of 2009 ( )** **-----------------------------AGAINST THE ORDER/JUDGMENT IN AS 218/2005 of ADDL.DISTRICT COURT, NORTH PARAVUR DATED 18-11-2008** **AGAINST THE ORDER/JUDGMENT IN OS 230/2004 of MUNSIFF COURT,ALUVA DATED 20-10-2005** **APPELLANT(S)/APPELLANTS/RESPONDENTS/DEFENDANTS: --------------------------------------------------------------------------------------------** **1. IKKUKUTTY THAMPAI, AGED ABOUT 62 YEARS, D/O.SEETHA THAMBAI, VADAKKEKOVILAKAM KIZHAKKUMBHAGOM KARA, KIZHAKKUMBHAGOM VILLAGE ALUVA TALUK.** **2. JAYANTHI, AGED ABOUT 31 YEARS, D/O.IKKUKUTTY THAMPAI, VADAKKEKOVILAKAM KIZHAKKUMBHAGOM KARA, KIZHAKKUMBHAGOM VILLAGE ALUVA TALUK.** **3. SASI, RESIDING AT VADAKKEKOVILAKAM, AND HUSBAND OF JAYANTHI, AGED ABOUT 35 VADAKKEKOVILAKAM, KIZHAKKUMBHAGOM KARA KIZHAKKUMBHAGOM VILLAGE, ALUVA TALUK.** **4. KUNJIKAVUTTY THAMPAI, AGED ABOUT 59, D/O.SEETHA THAMPAI, VADAKKEKOVILAKAM KIZHAKKUMBHAGOM KARA, KIZHAKKUMBHAGOM VILLAGE ALUVA TALUK.** **5. RAJEEVAN, AGED ABOUT 35, S/O.RADHA THAMPAI, VADAKKEKOVILAKAM KIZHAKKUMBHAGOM KARA, KIZHAKKUMBHAGOM VILLAGE ALUVA TALUK.** **6. VIJAYAN, AGED ABOUT 35, S/O.THANKAM THAMPAI, VADAKKEKOVILAKAM KIZHAKKUMBHAGOM KARA, KIZHAKKUMBHAGOM VILLAGE ALUVA TALUK.** - **BY ADVS.SRI.SREELAL N.WARRIER SRI.B.RAGHUNANDANAN** **-2-** ## **RESPONDENT(S)/APPELLANTS/PLAINTIFFS:** **------------------------------------------------------------------------** ## **1. EASWARY THAMPAI, AGED 59,** - **D/O.SUDHAKARA THAMPAI, VADAKKEKOVILAKAM KIZHAKKUMBHAGOM KARA, KIZHAKKUMBHAGOM VILLAGE ALUVA TALUK.** ## **2. KRISHNA KUMARI, AGED 38,** - **D/O.EASWARY THAMPAI, VADAKKEKOVILAKAM KIZHAKKUMBHAGOM KARA, KIZHAKKUMBHAGOM VILLAGE ALUVA TALUK.** ## **3. AMBIKA, AGED 36,** - **D/O.EASWARY THAMPAI, VADAKKEKOVILAKAM KIZHAKKUMBHAGOM KARA, KIZHAKKUMBHAGOM VILLAGE ALUVA TALUK.** **4. UNNIKRISHNAN, AGED 33, S/O.EASWARY THAMPAI, VADAKKEKOVILAKAM KIZHAKKUMBHAGOM KARA, KIZHAKKUMBHAGOM VILLAGE ALUVA TALUK.** **5. REMADEVI, AGED 31, D/O.EASWARY THAMPAI, VADAKKEKOVILAKAM KIZHAKKUMBHAGOM KARA, KIZHAKKUMBHAGOM VILLAGE ALUVA TALUK.** **6. KESAVAN NAMBOOTHIRI, AGED 59, S/O.VISHNU NAMBOOTHIRI, VADAKKEKOVILAKAM KIZHAKKUMBHAGOM KARA, KIZHAKKUMBHAGOM VILLAGE ALUVA TALUK.** **R1 TO 6 BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) R1 TO R6 BY ADV. SRI.GEORGE VARGHESE KIZHAKKAMBALAM** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** das ## **N.K.BALAKRISHNAN, J.** ========================== **R.S.A. No. 302 of 2009** =================================== **Dated this the 30[th] day of May, 2013** ## **JUDGMENT** Defendants in a suit for injunction are the appellants. The suit was dismissed by the trial court. But the appellate court decreed the suit in part and granted a permanent prohibitory injunction restraining the defendants from plying vehicles through Item No.1 of the plaint A schedule. 2. Ext.B1 is the partition deed entered into among the members of the Kovilakam of 15.9.1956. 'I' schedule thereto shows the properties allotted to the plaintiffs and defendants, who were members of the Thavazhi. Subsequently, there was another partition evidenced by Ext.A4 on 20.1.1976, as per which, the plaint A schedule property was allotted to the group of plaintiffs 1 and 5 and the mother and grandmother of the first plaintiff. The mother and the grandmother died. On the strength of Ext.A6 Will dated 09.4.1984, the first plaintiff claims right over A schedule property. B schedule properties were allotted to the branch consisting of D1, D2 and others. As stated earlier, the property allotted to the plaintiffs is R.S.A No.302/2009 : 2 : shown as Item No.1 of plaint A schedule. The property allotted to defendants 1 and 2 is shown in the plaint C schedule. 3. The bone of contention is pertaining to the right of way to the temple described in Item No.1 of A schedule to Ext.A4. Right of way was provided in Ext.B1 partition deed of 1956. It is to the effect that the members of the Kovilakam are entitled to use the way to go to the temple situated in that property. Plaintiffs contended that the right of way provided in Ext.B1 of 1956 and Ext.A4 of 1976 is only the “pedestrian use” and no vehicular traffic was allowed as per the grant evidenced by Exts.B1 and A4. 4. Defendants on the other hand contended that the right to use that way takes in the right to take the vehicle as well. In other words, according to the defendants, they have got right to take vehicles to the temple through Item No.1 of I schedule property to Ext.B1. The relevant portion appearing in Ext.B1 has been extracted by the lower appellate court. It would only show that the members of the Kovilakam alone were given the right to pass through that property to reach R.S.A No.302/2009 : 3 : that temple. The malayalam words 'µ¿Ká È¿MÞX' according to the defendants, does not confine to or restrict the user of the same to “walking” alone. In other words according to them, it was not intended as pedestrian use. 5. The following substantial questions of law have been re-framed in the light of the argument advanced by the learned counsel for the appellants: - (i) Whether the right of user of way provided as per Exts.B1 and A4 is restricted to the pedestrian use or does it take in the right of vehicular traffic as well? - (ii) In the absence of a declaratory relief, whether the plaintiffs are entitled to get a decree for injunction against the defendants, when all the other members of the Kovilakam/Thavazhi were not made parties to the suit ? 6. Sri.Sreelal N.Warriar, the learned counsel appearing for defendants/appellants has argued at length pointing out that the word 'È¿MÞX' is different from 'È¿AÞX'. According to the learned counsel, 'È¿AÞX' alone will mean “walking” or “pedestrian use” whereas the word 'È¿MÞX' would mean something more; it gives a right of enjoyment and so the interpretation given by the learned Munsiff that it would include vehicular traffic cannot be faulted with. R.S.A No.302/2009 : 4 : 7. This submission has been strongly resisted by Sri.V.Rajendran (Perumbavoor), the learned counsel appearing for plaintiffs/respondents pointing out that the word 'È¿MÞX' is only the loose expression and that it is only the word used by the scribe (document writer) without annexing any special meaning to the same. It only means that the way is intended to be used as a pedestrian passage and not for taking vehicles. 8. It is also pertinent to note that Ext.B1 partition deed was entered into in the year 1956, at a time when vehicular traffic was not in vogue. It is trite law, that in the matter of “grant” parties are governed by the terms of the grant. The trial court is of the opinion that because of the “changing socio-economic mores of the day” the terms of the document have to be interpreted. It was stated that if only the expression 'È¿MÞX' is used to take within it the right of vehicular traffic as well, it would be more realistic. The learned counsel for the respondents has pointed out that when the parties are bound by the grant evidenced by Exts.B1 and R.S.A No.302/2009 : 5 : A4, the socio-economic scenario or the change in the lifestyle of the parties can have no role to play especially when the right projected by the defendants would infringe the right of the plaintiffs to use the property allotted to them as per the partition deed. In this connection, it is also pointed out that the way as claimed by the defendants, if allowed, would make it practically impossible for the plaintiffs to use the kitchen and other portion of the house occupied by them. It is not necessary to go deep into those aspects, since the right claimed by the defendants is one of grant evidenced by Ext.B1 followed by Ext.A4. They must confine their claim to the grant evidenced by those documents. In Ext.A4, it was further made clear that the width of the way is only 3 feet. It was so stated in page 10 of Ext.A4. 9. The learned counsel for the respondents/plaintiffs has also pointed out that there is a road lying immediate to the east of the temple compound and that the temple compound is actually abutting the Panchayath road on the east. Ext.C1(a) plan would show that the plaintiffs' kitchen and a portion of the building would be affected if the width of the way is R.S.A No.302/2009 : 6 : increased from 3 feet. That apart, since the parties are bound by Exts.B1 and A4 and since it is made specifically certain that the appellants are entitled to use only a pathway to go to the temple and since the width of that way is specified in Ext.A4 as 3 feet arguments vehemently advanced by the learned counsel for the appellants that the appellants are entitled to have vehicular traffic also cannot be sustained at all. 10. It was held by the Apex court in **Md.Kamgarh Shah v. Jagdish Chandra (AIR 1960 SC 953)** that: “While it is true that strict grammatical sense of the words must be given effect to, words and phrases are not used by people always and invariably in the same sense.” It was held in the very same decision : “Where there is ambiguity it is the duty of the court to look at all the parts of the document to ascertain what was really intended by the parties.” 11. The word 'È¿MÞX' used in the document can only mean pedestrian passage or use and nothing more. The decision in **State Bank of India v. M.Selvaraj Daniel (AIR 1966 SC 1654)** has also been referred to by the learned counsel for the appellants/defendants in support of the submission that a misconstruction of a document would be an R.S.A No.302/2009 : 7 : error of law and so this court would be entitled to interfere with the finding of the courts below. 12. The learned counsel submits that though it is a second appeal, where only questions of substantial law can be raised, if this court finds that there was misinterpretation of a term or misconstruction of a document, this court would be perfectly justified in interfering with the finding of the lower appellate court. The learned counsel for the appellants has referred to the “Malayalam Dictionary” to state that the meaning of the words 'È¿Mí, È¿Jáµ' etc would mean something more. But those words do not show that it would include vehicular traffic also. In view of what is stated above, the contention that the right of way would take in the right of vehicular traffic cannot be sustained. 13. Though initially it was contended by the appellants that the power of attorney was not competent to file the suit, it was found by the lower appellate court that the power of attorney was valid and that there is no defect in the frame of the suit. No argument was advanced before this court R.S.A No.302/2009 : 8 : ## questioning the correctness of that finding. 14. It is also vehemently argued by Sri.Sreelal Warriar that though the suit was originally filed seeking a decree for declaration also, that was not pressed at the time of trial. Since the suit is only for injunction, unless all the parties bound by Exts.B1 and A4 are impleaded as parties to the suit, the plaintiffs cannot get a decree for injunction. Order 1 Rule 3 of CPC referred to by the learned counsel reads: All persons may be joined in one suit as defendants where- (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; 15. The thrust of the argument advanced by the learned counsel is that in as much as other members in the Kovilakam entitled to use the passage to go to the temple through I schedule property mentioned in Ext.B1 are not made parties to the suit, the suit should have been dismissed on that score itself. It may be noted that no specific issue as to the non-jointer of the parties was taken up before the case was posted for trial. Not only that so far as the plaintiffs are R.S.A No.302/2009 : 9 : concerned their specific case is that only the defendants in the suit attempted to take vehicles through the pathway in question and so the cause of action was only against those persons and that was why the injunction was sought against the defendants alone. Since that was the only prayer there was no necessity to implead all other members of the Kovilakam against whom the plaintiff had absolutely no complaint. Therefore, the plea so raised by the appellants cannot be sustained. 16. All the points raised by the appellants are answered against the appellants. In the result, this R.S.A is dismissed. No costs. Sd/- ## **N.K.BALAKRISHNAN, JUDGE** das // True copy // PA to Judge