Jose S/O Kolambayil Lukka v. Georgekutty S/O KuriaKose (RSA Nos.1304 & 1305 of 2016)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941** ## **RSA.No.1304 OF 2016** **AGAINST DECREE DATED 13.10.2016 IN AS 173/2014 IN THE COURT OF THE ADDITIONAL DISTRICT JUDGE-III, THRISSUR AGAINST DECREE DATED 02.06.2014 IN COUNTER CLAIM IN OS 1004/2011 IN THE COURT OF THE 3RD ADDITIONAL MUNSIFF, THRISSUR** **-----** ## **APPELLANT/RESPONDENT/DEFENDANT:** **JOSE S/O.KOLAMBAYIL LUKKA, AGED 62, ALPPARA, PANANCHERY, PEECHI PO, 680653, THRISSUR** **BY ADVS. SRI.K.G.BALASUBRAMANIAN SMT.AMBILY PREMKUMAR** ## **RESPONDENT/APPELLANT/PLAINTIFF:** **GEORGEKUTTY S/O.KURIAKOSE, AGED ABOUT 56, THUNDIYANAL HOUSE, MANDHAMANGALAM PO, 680014, THRISSUR DT.** **R1 BY ADV. SRI.M.K.DILEEP KUMAR** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22.01.2020, ALONG WITH RSA.1305/2016, THE COURT ON 23.01.2020 DELIVERED THE FOLLOWING:** ## **MIN** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941** ## **RSA.No.1305 OF 2016** **AGAINST DECREE DATED 13.10.2016 IN AS 172/2014 IN THE COURT OF THE ADDITIONAL DISTRICT JUDGE-III, THRISSUR AGAINST DECREE DATED 02.06.2014 IN OS 1004/2011 IN THE COURT OF THE 3RD ADDITIONAL MUNSIFF, THRISSUR** **-----** ## **APPELLANT/RESPONDENT/DEFENDANT:** **JOSE S/O.KOLAMBAYIL LUKKA, AGED 62, ALPPARA, PANANCHERY, PEECHI PO, 680653, THRISSUR** **BY ADVS. SRI.K.G.BALASUBRAMANIAN SMT.AMBILY PREMKUMAR** ## **RESPONDENT/APPELLANT/PLAINTIFF:** **GEORGEKUTTY S/O.KURIAKOSE, AGED ABOUT 56, THUNDIYANAL HOUSE, MANDHAMANGALAM PO, 680014, THRISSUR DT.** **R1 BY ADV. SRI.M.K.DILEEP KUMAR** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22.01.2020, ALONG WITH RSA.1304/2016, THE COURT ON 23.01.2020 DELIVERED THE FOLLOWING:** ## **MIN** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = RSA Nos.1304 & 1305 of 2016** **= = = = = = = = = = = = = = = = = = Dated this the 23[rd] day of January, 2020** ## **JUDGMENT** The defendant in a suit for prohibitory injunction and damages is the appellant. He raised a counter claim for mandatory and prohibitory injunctions. The trial court dismissed the suit and decreed the counter claim. On appeal by the plaintiff, the appellate court reversed the decree and allowing the plaint claim insofar as it relates to injunction and dismissed the counter claim. RSA 1305 of 2016 arises from the decree in the suit and RSA 1304 of 2016 arises from the decree on the counter claim. 2. The dispute involved in the suit essentially relates to a pathway situated adjacent on the northern side of the plaint schedule property belonging to the plaintiff and running east-west. The pathway is scheduled to the counter claim. The plaintiff claims that he has a right of user of the way, and alleges that the defendant is attempting RSA Nos.1304 & 1305 of 2016 :- 2 :- to erect a fencing on the northern side of plaintiff's property, separating the way on the north and thus prohibiting his access to the way. Accordingly the suit is filed for a prohibitory injunction to restrain such acts. A claim for damages was raised on the count of injury and mental agony suffered by the plaintiff consequent on the acts of the defendant. Defendant denied the right claimed by the plaintiff and alleged that the fencing that was in existence which prevented the access of the plaintiff to the northern way was removed by the plaintiff. The defendant raised a counter claim for prohibitory injunction against user of the northern way and for a mandatory injunction to restore the fencing on the northern boundary of the plaintiff's property. 3. Heard learned counsel Sri.K.G.Balasubramanian on behalf of the appellant-defendant and Sri.M.K.Dileep Kumar, on behalf of the respondent-plaintiff. 4. The existence of the way is not in dispute. The plaintiff's right of user of the way is under challenge. The defendant claims that the plaintiff RSA Nos.1304 & 1305 of 2016 :- 3 :- does not have any right to use the disputed pathway and that it is a private pathway of the defendant and his family. Ext.B4 Sale Deed is the document under which the defendant claims right over the disputed way portion. The recitals in Ext.B4 Sale Deed reveals that the right obtained by the defendant thereunder is only a right of way including a right to take electricity, telephone, water and cable connection through the same. In other words, the proprietary title of the disputed way portion was not obtained by the defendant under Ext.B4. Apart from Ext.B4 sale deed, the defendant does not trace title to any other document under which he obtained right over the disputed way. The learned counsel for the respondent-plaintiff would submit that the defendant not being the title holder, is not entitled to obstruct the user by the plaintiff. 5. When the plaintiff claims a right of way and an injunction against the defendant, in the normal circumstances it is for him to plead and prove his right of way. However, when the defendant is not RSA Nos.1304 & 1305 of 2016 :- 4 :- the owner of the way portion, the plaintiff need not establish his right. All that needs to be established is the existence of the way and its user. [ See John Varghese v. Sweena Anna Thomas 2013 (4) KLJ 579, Ramanunni Vaidyar v. Govindankutty Nair 1998 (2) KLT 47] . Ext.A1, the document of title of the plaintiff and Ext.B2 the prior title deed mentions the northern boundary of the plaint schedule as a way. It is to be noted that Ext.B2 the prior title deed of the plaintiff is even prior to Ext.B4 sale deed relied on by the defendant. 6. Though the plaintiff claims the disputed way to be a public way and also as having obtained as a prescriptive easement right, he has chosen to confine his claim as a public way. The defendant having failed to show that he is the owner of the property over which the disputed way exists and Ext.B4 indicating otherwise, it is not necessary for the plaintiff to prove his right. In the circumstances, for the disposal of the suit it is not necessary to adjudicate on the plaintiff's right. The same need be adjudicated only in a lis RSA Nos.1304 & 1305 of 2016 :- 5 :- against the owner of the property over which the right of way is claimed. The said finding of the lower appellate court that the way is a public way is set aside and is left open. As noticed supra, the defendant is not entitled to obstruct the user of way by the plaintiff. The decree of injunction as granted by the appellate court is only to be upheld and I do so. 7. As regards the claim for damages, though the plaintiff preferred appeal challenging the dismissal of his claim by the trial court, the plaintiff did not seriously prosecute the claim and the dismissal was confirmed in appeal. The contention of the learned counsel for the appellant is that, the failure on the part of the plaintiff to challenge the dismissal of his claim for damages will operate as res judicata against the plaintiff since that amounts to a finding against his claim of right of way. However, I am unable to accept the said contention. The dismissal of the claim for damages is only a finding that the plaintiff has failed to prove that any damages resulted on RSA Nos.1304 & 1305 of 2016 :- 6 :- account of the obstruction of way. That has nothing to do with the finding on the plaintiff's entitlement to use the way. 8. Having found that the defendant is not entitled to obstruct the plaintiff's user of the disputed pathway, the relief in the counter claim for a prohibitory injunction against the plaintiff from using the pathway cannot be granted. The same was rightly declined by the lower appellate court. The decree impugned in so far as it declined the relief of prohibitory injunction is affirmed. 9. Though the relief of mandatory injunction for restoration of fence was claimed alleging that the plaintiff does not have a right of access to the northern way and the contention is turned down, the prayer assumes some relevance in view of certain developments that took place pending the second appeal. The relief sought reads thus, “A. Directing the plaintiff by a mandatory injunction to restore the barbed wire fencing on the northern boundary of the plaint schedule properties to its original state as on 14.03.2011.” RSA Nos.1304 & 1305 of 2016 :- 7 :- 10. Pending the second appeal, the respondentplaintiff, sought for permission to construct a boundary wall on the northern side of his property separating the disputed way. It is to be borne in mind that the dispute in the suit was only regarding the right of the plaintiff to use the way. The request was evidently beyond the scope of the suit. Be that as it may, on the submission of the learned counsel on both sides that, “a Commissioner had visited the property from the trial court and submitted plans and reports”, this Court permitted the respondent-plaintiff to put up a compound wall of a temporary nature on the northern boundary of the plaint schedule property. The operative part of the order reads thus:- “Court below shall depute a commissioner, if possible the same commissioner who had visited the property, in the presence of the Village Officer, Peechi, to measure out the property of the respondent and to construct a compound wall of temporary nature on the northern boundary of his property abutting the disputed pathway, that too RSA Nos.1304 & 1305 of 2016 :- 8 :- within his property. The respondent shall execute a bond before the trial court that he unconditionally undertakes to demolish the northern boundary wall if it is found to be not at the appropriate place.” 11. Pursuant to the said order, it appears that the respondent-plaintiff put up a boundary wall with the assistance of a Commissioner and Village Officer. The allegation of the appellant-defendant is that the same was done without notice to the appellant-defendant and also encroaching into the disputed pathway. As noticed supra, the permission to put up boundary wall granted was purely as an interim measure pending disposal of the appeal. It has also to be noticed that, in fact no plans are available in the suit but only rough sketches. A suit as O.S.34 of 2017 is pending before the I[st] Additional Munsiff's Court at Thrissur, filed for fixation of boundary of the way in question with the property of the plaintiff herein. The present defendant is also a defendant therein. Regarding RSA Nos.1304 & 1305 of 2016 :- 9 :- the location of the boundary of the plaint schedule property herein with the way in question, the parties shall be bound by the decree in O.S.34 of 2017. If it is found that the boundary wall constructed by the plaintiff herein based on the interim order by this Court is situated further to the north of the boundary so fixed, then the same shall be liable to be demolished at the expenses of the plaintiff herein. The decree to be passed in O.S 34 of 2017 shall contain a provision for the same also. This would do complete justice to the parties. The impugned decree and judgment will stand modified to the above extent. Appeals are disposed of accordingly. No costs. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge