## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN**
**THURSDAY, THE 29TH DAY OF MAY 2014/8TH JYAISHTA, 1936**
## **RSA.No. 491 of 2014**
## **---------------------------------**
## **A.S.NO. 274/2009 OF 1ST ADDITIONAL DISTRICT COURT, KOZHIKODE**
## **O.S.NO. 163/2007 OF PRINCIPAL MUNSIFF COURT - II,KOZHIKODE**
## **-----------------**
## **APPELLANTS/RESPONDENTS/PLAINTIFFS :**
**---------------------------------------------------------------**
**1. MANDAYAPURATH AHAMMED MOOPAN, AGED 54 YEARS, S/O.BHAVUNNI MOOPPAN, RESIDING AT KALPAKANCHERI AMSOM, DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676 551.**
**2. A.P.HIND, AGED 43 YEARS,**
- **W/O.AHAMMED MOOPAN, D/O.ANAKAMPARAMBIL ABDUL HAMEED HAJI, RESIDING AT KALPAKANCHERI AMSOM, DESOM, TIRUR TALUK, MALAPPURAM DISTRICT, PIN - 676 551.**
**BY ADV. SRI.P.A.ABDUL JABBAR**
## **RESPONDENTS/APPELLANTS/DEFENDANTS :**
**-------------------------------------------------------------------**
**1. VELIYANCHERY SANTHAKUMARI, AGED 56 YEARS, D/O.CHATHU, RESIDING AT KASABA AMSOM, DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673 002.**
**2. VELIYANCHERY LALU, AGED 37 YEARS, S/O.SANTHAKUMARI, RESIDING AT KASABA AMSOM, DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673 002.**
**3. VELIYANCHERY SHAJU, AGED 37 YEARS, S/O.SANTHAKUMARI, RESIDING AT KASABA AMSOM, DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673 002.**
**4. VELIYANCHERY SHANOJ, AGED 29 YEARS, S/O.SANTHAKUMARI, RESIDING AT KASABA AMSOM, DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT, PIN - 673 002.**
**THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29-05-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
Msd.
**RSA.No. 491 of 2014**
**-----------------------------**
## **APPENDIX**
**---------------**
## **PETITIONER(S)' ANNEXURES:**
**ANNEXURE A : TRUE COPY OF THE JUDGMENT IN A.S.NO.274/2009 OF THE 1ST ADDITIONAL DISTRICT COURT, KOZHIKODE.**
**ANNEXURE B : TRUE COPY OF THE JUDGMENT IN F.A.O.NO.172/2012 OF THIS HONOURABLE COURT.**
## **RESPONDENT(S)' ANNEXURES:**
## **NIL**
## **//TRUE COPY//**
**P.A.TO JUDGE.**
Msd.
## **P.BHAVADASAN, J.**
- - - - - - - - - - - - - - - - - - - - - - - -
R.S.A. No. 491 of 2014
- - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of May, 2014
## **J U D G M E N T**
In this second round of litigation, the issue raised before this Court is regarding the restriction imposed by the appellate court regarding the use of the pathway in question which is shown as plaint C schedule.
2. As of now there can be no dispute regarding the fact that plaint C schedule is the pathway which arose by grant as per the terms of Ext.A1 partition deed and the parties to the litigation being the subsequent purchasers from the sharers of the partition deed are therefore entitled to the use of plaint schedule pathway.
3. In the first round of litigation, even though the right to use the pathway was sought to be restricted by the defendants, ultimately when the matter before this Court, the case was remitted back to the trial court to determine the extent of use of the pathway shown as C schedule. This
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Court was of the view that the materials then available before the court were sufficient to reach a decision regarding this aspect.
4. After the matter went back to the trial court, it was decided afresh and the trial court accepted the case of the plaintiff and granted an injunction as prayed for against the defendant. The decree thus enabled the plaintiffs to take any sort of vehicles through the plaint C schedule pathway to reach the plaint A and B schedule properties.
5. The aggrieved defendants carried the matter in appeal as A.S.No.274/2009.
6. The lower appellate court though concurred with the trial court regarding the existence of the pathway and that it admits the vehicular traffic, took the view that going by the intention behind the grant of the way at the time of Ext.A1 partition deed, use of the pathway admitted only of taking light vehicles limited to reaching the dwelling house mentioned in the deed. The lower court also noticed that the
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pathway ultimately leads to a temple compound. The lower appellate court thus took the view that on the terms of the grant as evidenced by Ext.A1, though it is capable of accommodating vehicular traffic, it could not have been the intention of the parties at the time of Ext.A1 partition deed that the way be used for plying heavy vehicles and felt that the use of C schedule pathway for a heavy vehicular traffic is detrimental to the interest of others. On that view of the matter, the lower appellate court modified the decree of the trial court and passed a modified decree which reads as follows:
“(a) the appeal is allowed in part.
(b) The decree of permanent prohibitory injunction granted by the court below is modified.
(c) The appellants and their men are hereby restrained by means of a permanent prohibitory injunction from obstructing the respondents in using the plaint C schedule property or taking vehicles except heavy vehicles like lorries and trucks through plaint C schedule property to reach the plaint A and B schedule properties; and
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## **R.S.A. No. 491 of 2014**
(d) the parties are directed to bear their respective costs. ”
7. Assailing the restrictions thus imposed by the lower appellate court, the plaintiff claimed that the lower appellate court was unjustified in its approach and since no restrictions have been imposed by Ext.A1 in the use of the pathway, such a condition could not have been imposed by the lower appellate court. If as a matter of fact, the pathway as originally granted is capable of accommodating heavy vehicular traffic, then by a process of interpretation, the use could not be restricted. It was also contended that if the interpretations put on by the lower appellate court is to be accepted, that would forestall development in the locality and no commercial activities could be carried on in the property which may ultimately devolve on persons who purchased it for commercial purposes from the sharers to whom the properties were alloted as per Ext.A1 partition deed. That certainly cannot be the intention as it would
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affect public purpose and interest.
8. Though the argument may look attractive at the first blush, it is without any basis whatsoever. It is well settled that the right of user of a way by grant is restrained by the terms of the grant and the purpose for which the way is granted. If any authority required for that purpose, it is provided by the decision reported in **Simon** v. **N. Jayanth** [1986 KLT 457].
9. The use of the pathway granted by way of grant depends upon the purpose for which it is granted. If assuming that no purpose is mentioned in the grant, it is settled by the above decision that the reasonable use of the pathway can be made by the person to whom the grant is made. The lower appellate court has considered all aspects from various angles. It has taken the width of the pathway into consideration, the fact that it leads to a temple and also the fact that originally when the partition deed was executed, the way namely C schedule pathway lead to a
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dwelling house. It was these factors which persuaded the lower appellate court to come to the conclusion that it could not have been the intention of the parties to Ext.A1 document to permit continuous heavy vehicular traffic causing threat to the very way itself. While the lower appellate court was of the view that vehicular traffic is permissible, it does not admit of such traffic which would cause hindrance to use of the C schedule pathway by others and would be detrimental to the very way itself.
10. After having given anxious consideration to various aspects, this Court finds no reason to take a different view from the view taken by the lower appellate court. True, no restrictions are imposed by Ext.A1 document regarding the use of C schedule pathway. But as rightly noticed by the lower appellate court, at the time when Ext.A1 partition deed was executed, the property in respect of which the right now claimed had only a dwelling house and it could not have been the intention of the way be used for plying heavy
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vehicles. Of course, one may agree with the appellants that for construction purposes, it may be necessary to take heavy vehicles. But to say that grant admits of regular heavy vehicle traffic for use such as godown and such other commercial activities is difficult to accept.
11. It must be noticed that the C schedule pathway is enjoyed by several persons and the lower appellate court has also noticed that it leads to a temple. The lower appellate court was also apprehensive of the fact that if such heavy vehicular traffic is permitted through C schedule pathway, parking of such vehicles may also cause hindrance to various pathway. Even though the learned counsel for the appellant pointed out that there is no intention to park any vehicles in the C schedule pathway, that by itself does not mean that the court below was wrong in its approach.
12. Considering the nature of pathway, width of pathway and the purpose for which it was originally laid and also considering the reasonable view taken by the lower
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appellate court, this Court finds no ground to interfere with the judgment and decree of the court below.
This appeal is without merits and is accordingly dismissed.
Sd/- **P.BHAVADASAN JUDGE**
ds
//True Copy//
P.A. To Judge
