Kochukunju and others v. Thomas Kurien and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN MONDAY, THE 9TH DAY OF APRIL 2012/20TH CHAITHRA 1934** ## **SA.No. 108 of 1997 (D)** **---------------------AS.123/1994 of SUB COURT, PALA OS.366/1988 of MUNSIFF COURT, PALA** **APPELLANT(S)/RESPONDENTS 1 TO 4/DEFENDANTS 1 TO 4:** **--------------------------------------------------** ***1. KOCHUKUNJU, POONDIKULATHU HOUSE, EDAPPADY KARA, BARANANGANAM VILLAGE. (DIED)** **2. DR.SUNNY, S/O -DO-** **3. THOMMECHEN, BROTHER OF -DO-** **4. MANICHAN, BROTHER OF -DO-** *** 1ST APPELLANT DIED. APPELLANTS 2,3 AND 4 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 1ST APPELLANT AS PER ORDER DATED 9.4.2012 IN MEMO DATED 8.4.2012.** **BY ADVS.SRI.K.K.CHANDRAN PILLAI** **SRI.K.S.DILIP** **RESPONDENT(S)/APPELLANTS/ RESPONDENT NO.5 AND ADDL.RESPONDENTS 6 AND 7/ PLAINTIFFS AND ADDL.DEFENDANTS 6 & 7:** **-------------------------------------** **1. THOMAS KURIEN, S/O.THOMAS, MEKKALATHU HOUSE, MANNAM KARA, POONJAR THEKKEKKARA VILLAGE, MEENACHIL TALUK, PALA.** **2. VELAYUDHAN MOHANANAN, S/O VELAYUDHAN, THAIPARAMBIL HOUSE, -DO- -DO-** **3. BABY, KOOTUNKAL, -DO- -DO-** **4. KARUNAKARAN NAIR, S/O.PARAMESWARAN NAIR, MANAPPALLY THEKKEL, -DO- -DO-M** **5. RAJASEKHARAN NAIR, PUTHUPARAMBIL HOUSE, -DO- -DOBY ADVS. SRI.T.P.VARGHESE AND SRI.PHILIP T.VARGHESE** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **P.BHAVADASAN, J.** --------------------------- ## **S.A.No.108 OF 1997** --------------------------- Dated this the 9[th] day of April, 2012 ## J **UDGMENT** Defendants 1 to 4 in O.S.No. 366 of 1988 before the Munsiff's Court Pala are the appellants in this second appeal. They suffered a decree at the hands of the lower appellate court. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The subject matter of the suit is a road which according to the plaintiffs starts from Pathampuzha-Kuzhumpally road which runs east to west and property of the defendants is on the northern side of the road. The plaint schedule road stands from the road on the east west and runs through the property of the defendant and others and leads to various places on the northern side. That road was laid by surrender of land by people on either sides. Going by the plaint, road has an average width of 25 feet. The allegation in the plaint was that on 28.10.1988 the defendants in the suit attempted to annex a portion of the road on its southern side with S.A.No.108 OF 1997 2 their property which was effectively thwarted by the timely act of the plaintiffs and others. Apprehending further threats from the defendants, the suit was filed. 3. Defendants 1 to 5 resisted the suit. Defendants denied the existence of the road as alleged in the plaint. Their property is situated on a higher level than the Pathampuzha-Kuzhumpally road and steps have been laid to enter their property. Suffice to say that the contesting defendants admitted the existence of a pathway through their property, but denied the existence of the road as alleged in the plaint. According to them on 30.10.1988 the plaintiffs along with others demolished the portion of eastern kayyala and annexed a portion of the property to the pathway which was already in existence. It is specifically pointed out that even though the suit was filed on 29.10.1988 and temporary injunction was obtained on the same day and the Commission was ordered to visit the property, the order was served on the defendants only on 31.10.1988 and in the meanwhile, the mischief S.A.No.108 OF 1997 3 had been done by the plaintiff and others. The contesting defendants had filed a complaint before the police which resulted in criminal proceedings and conviction of some of accused including the plaintiffs. They prayed for a dismissal of the suit. The defendants also preferred a counter claim. 4. On the above pleadings issues were raised. The evidence consists of the testimony of Pws.1 to 5 and Exhibits marked as Ext.A1 from the side of plaintiffs. Defendants had Dws.1 to 9 examined and Exts.B1 to B10 marked. Ext.C1 is the Commission Report. Trial Court after an evaluation of the evidence dismissed the suit and allowed the counter claim. However, the trial court had clearly observed that the plaintiffs and other public have right to use the pathway running through the property of defendants 1 to 4 as admitted by them the width of which was determined as 3 feet. 5. Aggrieved by the judgment of the trial court, the plaintiffs filed A.S.123 of 1994 before the Sub Court, Pala and the contesting defendants filed a cross objection. The lower appellate S.A.No.108 OF 1997 4 court, after an evaluation of the evidence disagreed with the trial court regarding the existence of the way and reversed the decree of the trial court dismissing the suit and decreed the suit as prayed for. The cross objection was dismissed and the counter claim was also dismissed. The aggrieved defendants are before this court. 6. Notice is issued in the following questions of law: - 1.Whether the lower appellate court was correct in declaring the title of the plaintiffs without sufficient plea of? - 2.Is not the lower appellate court went wrong in granting a declaration as prayed for by the plaintiff in view of the Ext.C1 Commissioner's Report and his evidence as DW9 that the road was old only 3 days and that the road was there only upto the Thodu on the northern side? 7. The learned counsel appearing for the appellant pointed out that the lower appellate court had misdirected itself both on facts and in law and had gone wrong in reversing the well considered judgment of the trial court which had appreciated the S.A.No.108 OF 1997 5 evidence in the proper perspective. The learned counsel went on to point out that the evidence adduced by the plaintiffs themselves show that the road did not exist beyond the Thodu on the northern side and the claim of the plaintiffs that the road in question led to various places on the northern side as deposed by their own witness was false. The lower appellate court has not considered the Commissioners Report and Ext.B10 document properly. The Commission Report Ext.C1 and evidence of the Commissioner examined as DW1 clearly show that the claim of the plaintiffs that the road had a uniform width of 25 feet and led to various places mentioned in the plaint schedule on the northern side is absolutely false. So also, the Commission Report shows that alteration made to the road on southern side at the site of its origin and several cultivation made by the defendants 1 to 5 had been destroyed showing that the alteration made by plaintiffs are recent acts. This is further fortified according to the learned counsel by Ext.B10 which is the mahazar prepared in the criminal case S.A.No.108 OF 1997 6 initiated at the instance of defendants 1 to 4 against plaintiff and others. The learned counsel also referred to Ext.B2 which would show that in criminal proceedings the appellants and others were convicted. The learned counsel went on to point out that the evidence of DW2 the Ex-MLA cannot strengthen the case of the plaintiffs. He claims that he used to take a jeep along the plaint schedule road from the year in the year 1984 is a case which the plaintiffs themselves did not have. The learned counsel also went on to point out that none of the persons who are said to have surrendered property for the formation of the road are examined. So also no person residing in the neighborhood of the plaint schedule property is also examined. These vital aspects have not been noticed by lower appellate court which has not properly appreciated the evidence in the case. 8. The learned counsel appearing for the contesting respondents on the other hand pointed out that even the Commission Report shows that there was a way in existence at S.A.No.108 OF 1997 7 least of a lesser width and that the claim of contesting defendants that a new road was cut open through their property is patently false. The evidence of Pws. 1 to 5 according to learned counsel is sufficient to show that there was a road and it was being used by the public. Referring to Ext.A1 and Exts.B5 and B6, it was very vehemently contended that the re-survey sketch would also show the existence of the road as alleged by the plaintiffs. Under these circumstance the lower appellate court was fully justified in coming to the conclusion that the plaint claim is true. According to the learned counsel, the findings arrived at by the lower appellate court is on appreciation of evidence in the case and findings are not shown to be perverse or unwarranted by the evidence on record. Interference under Section 100 of the C.P.C therefore is neither justified or unwarranted. 9. At the outset one aspect has to be noticed. Before the trial court there was a suit and a counter claim. The suit has been dismissed and counter claim had been allowed. Through records it S.A.No.108 OF 1997 8 is seen that the plaintiffs filed appeals only against the dismissal of that suit and no appeal filed against the counter claim. In the absence of an appeal from the counter claim, the appeal before the lower court was barred by principle of resjudicata. 10. The learned counsel appearing for the respondents relied on the decision reported in **Philip v. Kinhimohammed (2006 (4) KLT 998)** for the position that the appeal is to be treated as a unified proceeding and that be so, the appeal before the lower appellate court is perfectly valid. 11. A close reading of the decision would show that unified appeal is sufficient but both the decisions in the suit as well as counter claim will have to be challenged and court fee will have to be paid separately. On a reading of the decision it is seen that appeal was filed before the appropriate forum, paying court fee on aggregate total of suit valuation and counter claim. 12. Since in this case there was no appeal against the counter claim, as already stated the appeal was incompetent as it was S.A.No.108 OF 1997 9 barred by resjudicata. 13. Whatever that be, since that has been omitted to be noted by lower appellate court, and since arguments have been advanced on the merits of the case, it is only just and proper to consider the issues actually arising in the suit. 14. As initially noticed, the suit relates to the existence of a way which according to the plaintiffs had a uniform width of 25 feet and started from the Pathampuzha-Kuzhumpally road on the south and went towards north and ended in various places mentioned in the plaint schedule. The trial court found that plaintiffs had miserably failed to establish the existence of the way as alleged but the lower appellate court found otherwise. 15. First, one may refer to the Commission Report. The Commission Report states that the width of the road is 20 ½ feet at the beginning. It also says that Kayyala of the property of the defendant at the beginning portion of the road has been destroyed and soil and stones were piled up and seen levelled in that portion. S.A.No.108 OF 1997 10 The Commissioner also reported that the works were seen to have been done about 3 days ago. 16. Even though the suit was laid on 29.10.1998 and an exparte order of injunction and commission was obtained on the same day, order was served only on 31.10.1988. It is also significant to note that the Commission Report shows that width of the road at the beginning portion has 20 ½ feet and at other places it had an average width of 10 ½ feet. Commissioner has stated that for the reasons stated in the report, he was convinced that a road was already in existence in the property. What is significant is the recital that apart from the place at the beginning of the road at other places along the eastern boundary of defendants property, demolition were seen made. Further it is significant to note that Commission Report specifically states, that the road which is alleged by the plaintiffs, after running for a short length towards the north comes across a thodu beyond which there is only a footpath seen by the Commissioner. S.A.No.108 OF 1997 11 17. Examined as DW9, Commissioner states the above facts. The result is that there is nothing in the Commission Report to show that even assuming that there is a foot path or a way running through the defendants property, it extends beyond the Thodu on the northern side of the defendants property and leads various places as alleged in the plaint. Commission Report and evidence show that beyond the Thodu on the northern side of the defendants property, there is no road but only a pathway as shown by the Commissioner. Therefore the allegation that there is a way of uniform width of 25 feet starting from the PathampuzhaKuzhupilly road on the southern side and running towards the northern side ending in various places mentioned in the plaint is absolutely false. 18. Now one may refer to Ext.B10 document. It is a mahazar prepared in a criminal case instituted by the 3[rd] defendants alleging trespass and demolition of the Kayyala by some persons for a considerable length on the eastern boundary of the property S.A.No.108 OF 1997 12 owned by the defendants 1 to 5. Ext.B10 also shows that the mischief was done very recently. 19. The person who prepared Ext.B10 has been examined and it is relevant to note that plaintiffs and others were convicted by the criminal court as could be seen from Ext.B2 document. Even though the finding of the criminal court may not be binding in a civil case, the fact that there was some proceedings which has bearing on the same question involved in the suit cannot be ignored. 20. Now one may refer to the oral evidence in the case. First plaintiff was examined as PW1 and second plaintiff was examined as PW2. At the time of evidence, PW1 deposed that the width of the path way is 15 feet. It is significant to notice that PW2, nowwhere in the evidence says that he had been actually used the path way. It is not discernible from his evidence as to where exactly he resides. Though PW2 considerably support the plaintiff he admitted that before the plaint schedule road was laid, there S.A.No.108 OF 1997 13 where steps from the road to enter the property of defendants 1 to 5. PW3 is a person who speaks about the existence of the road and he says that it runs through the property of the defendants. It is not clear from his evidence as to where exactly he also resides. So is the evidence of Pws.4 and 5. It is true that all these witnesses uniformly say that repairs of the road were done by people of the locality. However, the plaintiffs did not adduce any evidence regarding the actual maintenance that was being carried out to the way and the expenses incurred for the for maintenance of the way from time to time. 21. It is also significant to notice that 1[st] plaintiff PW1 felt it unnecessary to examine any person who is alleged to have surrendered the property on northern side of the road. DW2 says that he has taken a jeep to the house of PW1in the year 1984 crossing the Thodu. The evidence of DW9 clearly shows that beyond the Thodu there is only a foot path and there is no road as alleged by the plaintiff. Therefore the evidence of DW2 is patently S.A.No.108 OF 1997 14 false. 22. One cannot omit to note that the plaintiffs had not chosen to file any objection to the Commissioner's Report and to show that there was a road as alleged by them. It is also important to notice that plaintiffs have caused production of Ext.B5 and B6 re-survey sketch which admittedly show the existence of the pathway through the property of the defendants. However, there is nothing in those documents to show that the road extends to various places mentioned in the plaint schedule. As a matter of fact the plaintiffs says that the way extended further towards north and leads to various places mentioned in the plaint schedule far away on the northern side. They could have produced resurvey sketch which would show that the road extended beyond the property of the defendants 1 to 5 to various places mentioned in the plaint schedule. That was not done. 23. The above facts and circumstances have been omitted to be noticed by the lower appellate court. The learned counsel ## S.A.No.108 OF 1997 15 appearing for the appellant is fully justified in his submission that the lower appellate court has been misdirected itself in arriving at a conclusion that the plaint schedule road is in existence. 24. It is clear from the above discussion that the lower appellate court has not appreciated the evidence in the proper perspective and its findings cannot be supported by evidence on record. The trial court which had the opportunity to watch the demeanour of the witnesses and had appreciated the evidence in the proper perspective and reached the conclusion that the way as alleged in the plaint did not exist. However, the trial court was careful in observing that there did exists a pathway and reserved the right of the plaintiffs to use the said way though having confined its width to 3 feet. 25. For the above reason I am unable to support the finding of the lower appellate court. Therefore the appeal is allowed. The impugned judgment and decree are set aside and the judgment and decree of the trial S.A.No.108 OF 1997 16 court are restored. No order as to costs. **P.BHAVADASAN, JUDGE** mns/