Koyambron Padmini v. Subha Payyambally and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR MONDAY, THE 19[TH] DAY OF JULY 2021 / 28TH ASHADHA, 1943** ## **RSA NO. 411 OF 2021** **[AGAINST THE JUDGMENT dtd.22.12.2020 IN AS 52/2016 OF ADDITIONAL SUB COURT, THALASSERY & JUDGMENT DTD.30.7.2016 IN OS 94/2012 OF MUNISFF'S COURT, KUTHUPARAMBA)** ## **APPELLANT/APPELLANT/DEFENDANT:** KOYAMBRON PADMINI, AGED 70 YEARS, D/O. KUNHIKANNAN, RETIRED TEACHER, RESIDING AT 'SHEE', KUTHUPARAMBA AMSOM, AMBILAD DESOM, P.O. NIRMALAGIRI, THALASSERY TALUK, KANNUR DISTRICT 670 701. BY ADVS. K.VISWAN, D.ARUN BOSE, ANIMA M.& ASHRUTH NASER BY ADV.SRI.S.MANU. ## **RESPONDENTS/ADDL.APPELLANTS 2 TO 4(LEGAL HEIRS OF ORIGINAL APPELLANT/LEGAL HEIRS OF THE PLAINTIFF)/PLAINTIFFS:** 1 SUBHA PAYYAMBALLY, AGED 63, W/O. LATE K. SURENDRAN, RETIRED TEACHER, RESIDING AT 'SRUTHI' , KUTHUPARAMBA AMSOM, AMBILAD DESOM, P.O. NIRMALAGIRI, THALASSERY TALUK, KANNUR DISTRICT 670 701. 2 NITHIN K. SURENDRAN, AGED 36, S/O. LATE K. SURENDRAN, RESIDING AT 'SRUTHI' , KUTHUPARAMBA AMSOM, AMBILAD DESOM, P.O. NIRMALAGIRI, THALASSERY TALUK, KANNUR DISTRICT 670 701. 3 SRUTHI K. SURENDRAN, AGED 34 YEARS, D/O. LATE K. SURENDRAN,RESIDING AT 'SRUTHI' , KUTHUPARAMBA AMSOM, AMBILAD DESOM, P.O. NIRMALAGIRI, THALASSERY TALUK, KANNUR DISTRICT 670 701. BY ADVS. R.SURENDRAN S.MAYUKHA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14.07.2021, THE COURT ON 19.07.2021 DELIVERED THE FOLLOWING: R.S.A.NO.411 OF 2021 :-2-: ## **J U D G M E N T** This appeal is directed against the judgment and decree dated 22.12.2020 in A.S.No.52/2016 of the Additional Subordinate Judge's Court, Thalassery (hereinafter referred to as 'the first appellate court') arising from the judgment and decree dated 30.7.2016 in O.S. NO.94/2012 of the Munsiff's Court, Kuthuparamba (hereinafter referred to as 'the trial court'). The defendant is the appellant herein. The respondents are the legal heirs of the plaintiff. The parties are hereinafter referred to as 'the plaintiff' and 'the defendant' according to their rank in the trial court unless otherwise stated. 2. The suit was for permanent prohibitory injunction and other reliefs. The plaintiff, the defendant and one Vimala are siblings. Inclusive of the plaint schedule property, a larger extent of R.S.A.NO.411 OF 2021 :-3-: property is owned and possessed by the plaintiff and the defendant along with the aforesaid Vimala. The plaint schedule item No.1 property, which is the western section and which does not have direct road access is allotted towards the share of the plaintiff. The plaint schedule item No.2 property is a portion, which is kept as a common road as per partition deed No. 639/1994 for the convenient user of the plaintiff, defendant and Vimala to access their properties. The plaintiff is residing in the plaint schedule item No. 1 property and the only way, which is available to the plaintiff for ingress and egress to his house, is plaint schedule item No.2. The plaintiff and defendants have been using the plaint schedule item No.2 common road for ingress and egress including vehicular traffic. The defendant has constructed a boundary separating her property from the common road. Since the R.S.A.NO.411 OF 2021 :-4-: properties lie from west to east towards the eastern road, the plaint schedule item No.1 property lies at a steep height from the eastern public road. Due to the flow of rain water through the plaint schedule item No.2 common road, it has become difficult to take vehicles through the said road. When the plaintiff attempted to lay laterite stones in the plaint schedule item No.2 property, for the smooth vehicular traffic in connection with the marriage of the plaintiff's daughter, the defendants obstructed the plaintiff with the aid of police. Hence, the suit. 3. The defendant filed written statement contending that the plaintiff deposited nearly 40 truck loads of soil in the plaint schedule item No.2 common road in order to change its terrain before filing the suit. The defendant has constructed a wall separating the plaint schedule item No.2 common road from her R.S.A.NO.411 OF 2021 :-5-: property whereas the plaintiff has kept plaint schedule item No.2 common road unidentifiable on the portion thereof, which touches the plaint schedule item No.1 property. In case the plaintiff intends to clatter out soil from the common way and thereby reduce its height, there will be height difference between the defendant's property and the common pathway, which will make it impossible for the defendants to take vehicles to her plot through the plaint schedule item No.2 common road. If the plaintiff carries on the work as intended, the lateral support of the house of the defendant will be lost. 4. The trial court framed necessary issues in the case. During trial of the case, PW1 was examined on the side of the plaintiff and marked Exts.A1 to A4(C). DW1 was examined on the side of the defendant. Commission report and plan were marked R.S.A.NO.411 OF 2021 :-6-: as Exts.C1 to C4 respectively. 5. After the conclusion of the trial, after having heard both sides, the trial court passed a decree for permanent prohibitory injunction restraining the defendants from obstructing the plaintiff from laying laterite stones in the plaint schedule item No.2 without changing the level difference of the way. Feeling aggrieved, the defendant preferred an appeal before the first appellate court. The appeal was dismissed confirming the judgment of the trial court. Hence, this Second Appeal. 6. Heard Sri.S.Manu, the learned counsel for the appellant and Sri.R.Surendran, the learned counsel for the respondents/caveators. 7. The learned counsel for the appellant contended that a co-owner enjoying a common right of way over a pathway by way of express grant cannot R.S.A.NO.411 OF 2021 :-7-: maintain a suit of injunction against the other coowner unless there is an obstruction or disturbance of the easement. It was also contended that one of the co-owners in common right of way by express grant is not entitled to alter the lie and nature of the pathway by raising or lowering its level from the existing condition. Thus, it is contended that the plaintiff being the one of the several co-owners in a common pathway is not entitled to make any renovation or repair of the way in a manner interfering with the free use by others. 8. On the other hand, the learned counsel for the respondents contended that the plaintiff has not tried to effect the repair work upon the said common road in any manner which would prejudicially affect the rights of the defendant. It is contended that admittedly the plaint schedule item No.2 pathway is a R.S.A.NO.411 OF 2021 :-8-: common pathway for the beneficial enjoyment of the plaintiff, the defendant and one Vimala. The learned counsel for the defendant submits that the dispute is pertaining to the right of the plaintiff as a co-owner to use the common pathway. The learned counsel for the defendant submitted that the plaintiff is not entitled to get a decree for permanent injunction restraining the defendant from making alteration in the plaint schedule item No.2 to the detriment of the plaintiff. 9. Each co-owner would be entitled to a common property jointly owned by them. As between the co-owners, each is entitled to use the common property in the best possible manner without detriment to the enjoyment of the owner and so long as the property does not suffer any injury or result in any loss, the co-owner cannot make any complaint. Needless to say that any interference with the common R.S.A.NO.411 OF 2021 :-9-: property by one of the co-owners, which amounts to complete ouster of rights of enjoyment of other coowner is actionable unless such interference is with the consent of other co-owners. In view of the legal position, it is essential on the part of the plaintiff to prove in evidence that the usage of the pathway by the defendant in respect of the plaint schedule item No.2 pathway causes prejudice to the rights of all other parties, who are using the pathway. 10. The defendant has no case that laying laterite stone on the pathway would lead to any extra expenditure for him. It was done by the plaintiff in connection with his daughter's marriage. There are three persons using the plaint schedule item No.2 pathway. Both the trial court and the appellate court concurrently held that the plaintiff did not prevent the defendant from using the plaint schedule item No.2 R.S.A.NO.411 OF 2021 :-10-: pathway. It was also concurrently found that using the common pathway would not cause prejudice to the rights of the other co-owners over the pathway. 11. Even though various contentions are taken, the only point that is urged at the time of hearing is regarding the right of the plaintiff to get a decree for injunction against the defendant, who is admittedly a co-owner. It is true that a co-owner is a constructive trustee for the other co-owner and generally, no injunction can be granted restraining the other co-owner from interfering with the right of the plaintiff over the co-ownership property. In the case on hand, the subject matter is a common pathway jointly owned by three persons. The plaintiff has not sought for a decree for injunction restraining the defendant from using the pathway. His only case is that he shall not be obstructed while laying down R.S.A.NO.411 OF 2021 **==> picture [32 x 11] intentionally omitted <==** laterite stone for its beneficial use. How far the user of the common pathway is affected and whether the decree for permanent prohibitory injunction granted by the trial court and confirmed in appeal is justified in the facts and circumstances of the case needs to be answered. It is a fact that over the plaint schedule item No.2 pathway, both the plaintiff and defendant has equal rights. Both of them are co-owners so far as the pathway is concerned. It is not seen from the written statement of the defendant that how far the laying of laterite stone will affect the user of the defendant over the plaint schedule item No.2 pathway. It is evident from the commission report that laterite stones are laid for the beneficial enjoyment of the pathway. On going through the commission report and evidence, there is nothing on record to infer that it would obstruct the plaintiff's enjoyment of the common R.S.A.NO.411 OF 2021 :-12-: pathway. The learned counsel for the appellant would submit that in case laterite stones are laid, water from the road will certainly flow towards the property of the defendant, which lies on a lower side. Though such a contention was taken, no reliable evidence in this regard was adduced. There was no evidence adduced to prove that serious damage to the defendant's property would be caused if plaintiff is permitted to lay laterite stone in the common pathway. Further, the trial court granted a decree restraining the defendants from obstructing the plaintiff from laying laterite stones in the the plaint schedule item No.2 pathway without changing the level difference of the way. So, it is clear that the level difference cannot be changed. In B.B.Katiyar's Law of Easements and Licences (Page No.225) 15[th] Edition, the learned author has extracted with approval a passage from the decision reported in R.S.A.NO.411 OF 2021 :-13-: ## **Subbiah Goundan** v. **Ramaswamy Goundan** [AIR 1973 Mad 42 (45) wherein it was held as follows:- “.................when co-owners, at the time of partition, set apart a portion of the common property to be used as common for the beneficial enjoyment of their respective shares, that involves a dedication. Each of such co-owners of the common property is entitled to use the property in the way most advantageous and beneficial to him without, at the same time, causing any injury or detriment to the other co-owners. It is for such a coowner to decide in what way he could so use the common property to his maximum advantage. It is not for the other co-owners to dictate in what manner the other co-owner should enjoy the common property so long as the user of the common property by one co-owner does not materially interfere with the use of the property by the other co-owners or affect their rights or in any way weaken, damage or injure the common property. Such co-owners are not entitled to prevent the other co-owner from using the common property in the way most beneficial to him.............” The learned author further stated as follows:- - “…............The principle underlying the R.S.A.NO.411 OF 2021 :-14-: enjoyment of common property is that one co-owner can use the common property to his maximum advantage, subject, of course, to the rights of the other co-owner not being any way materially interfered with and without damaging or weakening the common property..” 12. Such user as stated above, so long as it does not interfere with the right of the defendant as a co-owner cannot be objected to on the ground that the plaintiff has no right to lay laterite stones or to make improvements thereon for the beneficial enjoyment of the all the co-owners including the defendant. The trial court and the appellate court concurrently held that the level difference shall not be enhanced. 13. Section 100 of the Code of Civil Procedure set out the grounds on which and Section 101 of C.P.C. lays down in unambiguous terms that no second appeal lies unless the appellant satisfies the R.S.A.NO.411 OF 2021 **==> picture [32 x 11] intentionally omitted <==** conditions mentioned in Section 100 of the C.P.C. No substantial questions of law are involved in this case. Hence the R.S.A. is liable to be dismissed. For the above reasons, the R.S.A. is dismissed in limine. Considering the facts and circumstances, there will be no orders as to costs. Pending applications, if any, shall stand disposed of. Sd/- **N.ANIL KUMAR** , JUDGE MBS/