JALAJAN and KURIAKOSE v. P. V. BABY

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 24TH DAY OF OCTOBER 2013/2ND KARTHIKA, 1935 RSA.No. 108 of 2012 () -------------------AGAINST THE JUDGMENT IN AS 102/2010 of D.C.& SESSIONS COURT,THODUPUZHA AGAINST THE JUDGMENT IN OS 322/2008 of MUNIMAGI.COURT,THODUPUZHA APPELLANT(S)/APPELLANTS/RESPONDENTS/DEFENDANTS: ------------------------------------------------ 1. JALAJAN AGED 33 YEARS, S/O. KURIAKOSE, AGRICULTURALIST REISDING AT CHEMBAKATHINAL HOUSE VANNAPPURAM KARA AND VILLAGE, THODUPUZHA IDUKKI DISTRICT-685562. 2. KURIAKOSE S/O. MATHAI, AGED 68 YEARS RESIDING AT CHEMBAKATHINAL HOUSE VANNAPPURAM KARA AND VILLAGE, THODUPUZHA IDUKKI DISTRICT-685562. BY ADV. SRI.PEEYUS A.KOTTAM ## RESPONDENT(S)/RESPONDENT/APPELANT/PLAINTIFF: -------------------------------------------- P.V. BABY AGED 41 YEARS, S/O. VARKEY RESIDING AT PUTHUPARAMBIL HOUSE VANNAPURAM KARA AND VILLAGE, THODUPUZHA IDUKKI DISTRICT-685562. R1 BY ADV. SRI.B.KRISHNA MANI THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **N.K.BALAKRISHNAN, J.** **............................................ R.S.A. No. 108 of 2012 ............................................** ## **Dated: 24-10-2013** ## **JUDGMENT** The defendants in a suit for injunction are the appellants. The plaintiff is residing in the house situated in the A schedule property. He contends that he has absolute right to use the plaint B schedule road, obtained as per Ext.A1 sale deed. The suit was filed contending that the defendants attempted to put up constructions on the B schedule road, protruding a part of the building into the B schedule road causing obstruction to the plaintiff's user of the said road. The defendants resisted the suit contending that there is no road as described in the B schedule. The way provided to the plaintiff as per Ext. A1 sale deed is away from the B schedule way. According to the defendants the road provided as per Ext.A1 is through the **R.S.A. No. 108 of 2012** **2** ## eastern side of the existing building. 2. P.W 1 to P.W3 were examined and Exts.A1 to A4 were marked. On the side of the defendants DW1 and DW2 were examined. The Commissioner's report and plans were marked as Ext. C1, C1 (a), C2 and C2 (a). 3. The trial court found that the plaintiff failed to prove and establish that the way mentioned in Ext.A1 is the road described in the B schedule to the plaint and hence the suit was dismissed. In the appeal, the appellate Court considered the pleadings and evidence and found that the plaintiff is entitled to get a decree for injunction in respect of the B schedule way which is shown in the Commissioner's report and plan and hence a decree for injunction was granted. 4. The learned counsel for the defendants/appellants would submit that the lower appellate court has gone wrong in upsetting the finding entered by the trial Court. 5. Ext. A1 is the title deed as per which the plaintiff **R.S.A. No. 108 of 2012** **3** obtained the right to use the B schedule way/road. It is described in page 2 of Ext.A1 as : **“പട�കയ�ല പറയ�ന 5 സ�ന� വസ��വ�� എസന വക ബ�ക� വസ��വ�സന പട�ഞ�റ�ഭ�ഗത�ക�ട� ക�ള�യ�ര കകട�ശ"ര� ശറ�ഡ�ല ന�ന�� ട� വസ��വ�ശ&ക� വ�ഹന ഗ��ഗ�� സ(യ*ന��ന�ള അവക�ശവ�� അടക� എന�ക�ള �രവ�വക�ശവ�� കകവശവ�� വ�സട�ഴ�ഞ� ��ങളക� �2റ��ന�..................”** 6. The property measuring 5 cents sold as per Ext.A1 is comprised in Sy. No. 1478/1A. As per the boundary description of the A schedule, the property lying to the east and north of the plaint A schedule property was held and possessed by the vendor. The road/way provided under Ext.A1 admittedly starts from Kaliyar-Kakkadassery road situated on the western side. The road leading to the plaint A schedule property is on the south-western corner of the A schedule property. It is stated that the plaintiff is practising in Ayurvedic medicine in his house. Since as per Ext.A1 the way for vehicular traffic was specifically provided from the road on the west and as it leads to the house of the **R.S.A. No. 108 of 2012** **4** plaintiff through his western boundary, the learned counsel for the respondent/plaintiff would submit that the lie and position of the pathway as shown in the Commissioner's plan do fully reconcile with the description shown in the plaint B schedule. The view taken by the trial court that the plaintiff has failed to prove that the B schedule way demarcated by the Commissioner in the plan is not proved to be the way shown in Ext. A1 is factually incorrect and palpably unsound, the learned counsel for the respondent submits. 7. The following are the substantial questions of law seen framed in the Appeal Memorandum :- - _i) Has the appellate Court borne in mind the correct principles of law while it granted permanent prohibitory injunction ?_ - _ii) Whether the plaintiff is legally entitled to seek for permanent prohibitory injunction over B schedule pathway unless and until he establishes any manner of right over the same ?_ _iii) Is it not mandatory to seek a declaratory relief about the_ **R.S.A. No. 108 of 2012** **5** _plaintiff's right over the B schedule pathway before seeking a permanent prohibitory injunction especially when the identity of B schedule pathway is not specified in Ext. A-1 sale deed ?_ 8. The suit was resisted by the defendant/appellant contending that no declaration was sought in respect of the pathway and so the plaintiff is not entitled to get a decree for injunction. The argument before the courts below proceeded on the premise that there was no demarcation of the road and so the plaintiffs should have sought for a declaration as regards the road claimed by him. But it is important to note that there was an express grant as per Ext.A1 which is so definite and clear as to the existence of the road and also regarding the starting point and ending point. The route of that pathway was clearly mentioned by the Commissioner in Ext. C1 and C1(a). There could be no cloud of doubt regarding the plaintiff's entitlement to use the road provided to him as per Ext.A1 which was executed by the second defendant in favour of the plaintiff. **R.S.A. No. 108 of 2012** **6** Therefore no declaratory relief was necessary for getting a decree for injunction. The prayer for mandatory injunction was introduced since the defendants while constructing the building allowed the roof of the building to protrude into the pathway over which the plaintiff had obtained right as per Ext.A1. For that purpose no declaratory relief is required. 9. It is submitted by the learned counsel for the respondent /plaintiff that Ext. C1 report and C1 (a) plan which was the first report and plan would clearly show that the plaint B schedule road found by the Commissioner was an old one and there were two rubber trees standing on the road but in between the rubber trees there was sufficient width, a width of about six feet through which small vehicles could be taken. As per Ext.A1, the width of the road /way was shown to be 8 feet. Since it is an express grant the width of the same cannot be reduced. It was also noted that there was a board fixed at the entrance **R.S.A. No. 108 of 2012** **7** of the main road indicating the existence of the Ayurveda treatment centre in the house of the plaintiff. 10. Based on the application filed by the defendant the Commissioner again inspected the property and he submitted Exts. C2 report and C2 (a) plan. In that plan the way suggested by the defendant was also marked but it was found that that way was a newly formed one and it was not touching the plaint A schedule property. Not only that, that way was proceeding from the east towards the plaint A schedule building which would not reconcile with the description, the lie and position of the road shown in Ext.A1. The fact that the length of the road was not mentioned and the exact lie or route of the road/way was not mentioned in Ext.A1 cannot be a reason to hold that the lie or position of the road is not certain or definite. The road starts from that public road KaliyarKakkadassery and it proceeds through the gate which was admittedly in existence and proceeds through the property **R.S.A. No. 108 of 2012** **8** of the defendant and reaches the plaintiff's house. The evidence would show that that road was in existence at the time of Ext.A1 and it was used by the plaintiff. The defendants also might be using that road but that does not mean that there was no road in existence as shown in Ext.A1 and that the grant expressly given to the plaintiff was taken away or lost. 11. The learned counsel for the appellants would submit that if the road as stated by the plaintiff and accepted by the lower appellate court is accepted as the road /way leading to the house of the plaintiff then a small bit of land lying between the buildings and the road portion, which admittedly belongs to the defendants, would become useless. That contention is resisted by the learned counsel for the plaintiff. The road was in existence at the time of Ext.A1 and since the plaintiff was using the way for taking vehicle to his house from KaliyarKakkadassery road the argument that if that way is **R.S.A. No. 108 of 2012** **9** allowed to be used by the plaintiff, a portion of the property belonging to the defendant would be rendered useless, is found to be untenable. The lower appellate court after considering the entire evidence found that the way shown as 'J' in Ext.C2 (a) plan is the way which the plaintiff is entitled to get. The other way suggested by the defendant was found to be a new one which was not in existence at the time of inspection for Ext. C1 report. The Commissioner has stated that that way which was found and made mention of in Ext. C2 (a) was a newly formed one. 12. The learned counsel for the respondent has relied upon the decision in **Hero Vinoth v. Seshammal -** ( **2006) 5 SCC 545** in support of his submission that a mere question of law is not a substantial question of law and that a substantial question of law has to be distinguished from a substantial question of fact. According to the learned counsel, the questions formulated in the Memorandum of Appeal are not substantial **R.S.A. No. 108 of 2012** **10** questions of law. There was no misreading or non-reading of evidence nor was any material fact omitted to be considered by the lower appellate court. As there was non-consideration of the evidence or misreading of evidence by the learned Munsiff, the lower appellate court was perfectly justified in reversing that finding. 13. The learned counsel for the respondent has also relied upon the decision of the Supreme Court in **Sree Swayam Prakash Ashramam & Another v. G.Anandavally Amma & Ors. - AIR 2010 SC 622 .** That ruling has no application to the facts of this case. That was a case founded on implied grant. Here, it is a case of express grant provided as per Ext.A1 document itself. 14. The learned counsel has also relied upon the decision in **Simon v. N. Jayanth - 1986 KLT 457** in support of his submission that when the case is of grant it must be construed most strongly against the grantor. It was held that a right of way cannot be enlarged in such **R.S.A. No. 108 of 2012** **11** cases to extend the area of the right of easement ; nor can it be unduly restricted within that area either. Therefore, if the right of way admits the use of vehicles, that right cannot normally be refused and the right of way in such cases cannot be reduced to a footpath. In Ext.A1 the width of the road/way is specifically shown as 8 feet. It was also mentioned that it was intended for vehicular traffic. That width cannot be reduced. Therefore, the the learned counsel for the plaintiff is justified in his submission that the dominant owner cannot dictate the servient owner that a right of way is not available for vehicular traffic and that the said right can be exercised through another part of the property held or possessed by the defendants. 15. A right of way includes the grant of right of way for all reasonable purposes required for the house building. Here, especially because the plaintiff was conducting his Ayurvedic Centre in the plaint schedule building and since such a gate was fixed at the front of the **Kaliyar** **R.S.A. No. 108 of 2012** **12** **Kakkadassery** road it is reasonable to assume that the road/way of a width of 8 feet as shown in Ext.A1 started from the gate as shown in Ext.C1(a) plan and proceeded upto the A schedule property. Since at the time of inspection for Ext.A1 the said way was seen to be old, the contention that that was not the way provided as per Ext.A1 cannot be accepted. The grant controls the easement. Since the right of way obtained under Ext.A1 was for vehicular traffic, there can be no doubt regarding the intended user of the same. 16. In the case of a grant the language of the instrument must be referred to and it is for the court to construe the terms of the document in the light of the circumstances obtained in that particular case. In the absence of any indication to the contrary the grant must be construed most strongly against the grantor. The Court has to consider the locus-in-quo over which the way is granted; the nature of the terminus-ad-quem (the place or point the **R.S.A. No. 108 of 2012** **13** private way ends) and the purpose for which the way was to be used. Here, the property through which the way was to proceed and the route of the pathway was specified in Ext.A1. The starting point and the ending point are also made clear. The width of the pathway was also made specific. Hence, it can be legitimately concluded that the pathway as shown in the Commissioner's plan which starts from **Kaliyar Kakkadassery** road and ending in the plaint A schedule property is the way that was granted as per Ext.A1. The decree granted by the courts below does not suffer from any legal infirmity. All the points are answered against the appellant. R.S.A. is hence, dismissed. Dated this the 24[th] day of October, 2013. ## **Sd/-N.K. Balakrishnan, Judge** ani/. /true copy/ ## P.S. to Judge ## **R.S.A. No. 108 of 2012** **14** **R.S.A. No. 108 of 2012** **15** ## **N.K. Balakrishnan** **Judge.** Though as per Ext.A1 the plaintiff had purchased the right of way for using vehicular traffic, the description in Ext.A1 does not tally with the B schedule way claimed by the plaintiff and as such the decree and judgment rendered by the lower appellate court are to be set aside.