Maniyan and Sarojini v. Prasannan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **THURSDAY, THE 16TH DAY OF NOVEMBER 2017/25TH KARTHIKA, 1939** ## **OP(C).No. 1987 of 2017 (O)** **--------------------------AS.63/2017 OF THE ADDITIONAL DISTRICT COURT -II(SPECIAL),KOTTAYAM** ## **PETITIONERS/APPELLANTS/DEFENDANTS:** ## **---------------------------------** **1. MANIYAN, AGED 80 YEARS, S/O. VELU, MADAVANA HOUSE, FROM KATTEZHATHU HOUSE, PADINJAREMURRY, VADAKKEMURY VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT.** **2. SAROJINI,** - **AGED 76 YEARS, W/O. MANIYAN, MADAVANA HOUSE, FROM KATTEZHATHU HOUSE, PADINJAREMURRY, VADAKKEMURY VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT.** **BY ADVS.SRI.K.M.SATHYANATHA MENON SMT.KAVERY S THAMPI** ## **RESPONDENTS/RESPONDENT/PLAINTIFF:** **--------------------------------** ## **PRASANNAN,** **S/O. MADHAVAN, THARAYIL HOUSE, UDAYANAPURAM P.O., VAIKOM, KOTTAYAM DISTRICT, PIN - 686 143.** **BY ADVS. SRI.R.RAYA SHENOY SRI.R.PRASANTH KUMAR** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **OP(C).No. 1987 of 2017 (O) ---------------------------** ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER(S)'**|**EXHIBITS**| |**-----------------------**|| |**EXHIBIT P1**|<br>**TRUE COPY OF THE COMMON JUDGMENT IN O.S.NO. 102 OF**| ||**2014 AND O.S.NO. 119 OF 2014 ON THE FILE OF THE**| ||**COURT OF THE MUNSIFF, VAIKOM.**| |**EXHIBIT P2**|<br>**TRUE COPY OF THE ORDER DATED 05.06.2017 IN**| ||**I.A.NO.1162 OF 2017 IN A.S.NO. 63 OF 2017 ON THE**| ||**FILE OF THE COURT OF THE ADDITIONAL DISTRICT JUDGE**| ||**- II (SPECIAL) KOTTAYAM.**| |**EXHIBIT P3**|<br>**TRUE COPY OF THE RELINQUISHMENT LETTER ISSUED BY**| ||**ADVOCATE SRI.T.S.SASIKUMAR DATED 21.06.2017.**| |**EXHIBIT P4**|<br>**TRUE COPY OF THE WRITTEN STATEMENT IN O.S. NO.441**| ||**OF 1997 DATED 16.12.1998 ON THE FILE OF THE**| ||**MUNSIFF'S COURT, VAIKOM.**| |**EXHIBIT P5**|<br>**TRUE COPY OF THE COMMISSION REPORT IN O.S.NO. 441**| ||**OF 1997 DATED 11.11.1997 ON THE FILE OF THE**| ||**MUNSIFF'S COURT, VAIKOM.**| |**EXHIBIT P6**|<br>**TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONERS**| ||**AGAINST ADVOCATE P.S.SASIKUMAR BEFORE THE BAR**| ||**COUNCIL OF KERALA DATED NIL**| |**RESPONDENT(S)'**|**EXHIBITS**| |---|---| |**-----------------------**|| |**EXHIBIT R1(A)**|**TRUE XEROX COPY OF THE CERTIFCATE OF PURCHASE OF**| ||**KUDIKIDAPPU NO.298 ISSUED TO THE RESPONDEN'S MOTHER**| ||**LATE DEVAKI BY TH ELAND TRIBUNAL VAIKOM**| |**EXHIBIT R1(B)**|**TRUE XEROX COPY OF THE REGISTRATION COPY OF THE**| ||**SALE DEED NO.3282 OF 1971 EXECUTED BY OUSEPH**| ||**KOCHUPAPPU IN FAVOUR OF THE RESPONDENT'S MOTHER**| ||**LATE DEVAKI**| |**EXHIBIT R1(C)**|**TRUE XEROX COPY OF THE JOINT RELECASE DEED**| ||**NO.2538/2009 EXECUTED BY THE SISTER OF THE**| ||**RESPONDENT IN FAVOUR OF THE RESPONDENT IN RESPECT**| ||**OF ADDITIONAL 5 CENTS OF PROPERTY PURCHASED BY THE**| ||**LATE MOTHER OF THE RESPONDENT**| |**EXHIBIT R1(D)**|**TRUE XEROX COPY OF THE SKETCH PREPARED BY THE**| ||**SURVEYOR K.D.SABU IN AS. NOS.62 & 63 OF 2017 DURING**| ||**THE COMPROMISE TALKS THAT TOOK PLACE AT THE**| ||**APPELLATE STAGE IN THE COURT BELOW**| |**EXHIBIT R1(E)**|**TRUE XEROX COPY OF THE JUDGMENT PASSED IN OS.**| ||**NO.441/1997 OF THE MUNSIFF'S COURT VAIKOM**| |**EXHIBIT R1(F)**|**TRUE XEROX COPY OF THE PLAN AND SKETCH OF THE**| ||**PLAINT SCHEUDLED PROPERTIES FORMING PART OF THE**| ||**DECREE IN OS.119 OF 2014 FILED BY TH ERESPONDENT**| ||**HEREIN AGAINST THE PETITIONERS**| |**EXHIBIT R1(G)**|**TRUE XEROX COPY OF THE INTERIM ORDER PASSED IN**| ||**IA.362/2017IN OS.119/2014 AND OS.102/2014 PASSED BY**| ||**THE TRIAL COURT DISMISSING THE SAID IA. FILED BY**| ||**THE PETITIONERS HEREIN**| **TRUE COPY** **P.S. TO JUDGE** **EL** ## **ANIL K. NARENDRAN, J. -----------------------------------------O.P(C) No.1987 of 2017 -------------------------------------------** Dated this the 16[th] day of November, 2017 ## **J U D G M E N T** The petitioners, who are the defendants in O.S. No.119 of 2014 on the file of the Munsiff's Court, Vaikom, and the appellants in A.S.No.63 of 2017 on the file of the Additional District Court-II (Special), Kottayam, are before this Court in this Original Petition filed under Article 227 of the Constitution of India, seeking an order to set aside Ext.P2 order of the lower appellate court dated 5.6.2017 in I.A.No.1162 of 2017 in A.S.No.63 of 2017. 2. On 29.6.2017 when this original petition came up for admission, this Court admitted the matter on file and issued notice to the respondent by special messenger. 3. Heard the learned counsel for the petitioners/ defendants in O.S.No.119 of 2014 and also the learned counsel for the respondent/plaintiff in that suit. 4. The sole issue that arises for consideration in this Original Petition is as to the legality or otherwise of Ext.P2 order O.P(C) No.1987 of 2017 :-2-: of the lower appellate court dated 5.6.2017 in I.A.No.1162 of 2017 in A.S.No.63 of 2017. 5. The respondent/plaintiff has also filed a counter affidavit raising contentions touching the merits of the issue now pending adjudication before the lower appellate court. Though, the learned counsel on both sides advanced arguments touching the merits of the issue, this Court refrain itself from making any observation on contentions touching the merits of the case, since it may cause prejudice to the case of the parties in the appeals now pending before the lower appellate court. 6. O.S.No.119 of 2014 is one filed by the respondent/ plaintiff for a declaration of easement right of way by necessity through plaint schedule item No.3 pathway; a mandatory injunction to demolish and remove plaint schedule item No.4 constructions; and a perpetual injunction against future obstruction to the plaint schedule item No.3 pathway. Prior to the institution of O.S.No.119 of 2014, the petitioners/defendants filed O.S.No.102 of 2014 for a perpetual injunction against the respondent herein. In the said suit, they sought for a temporary O.P(C) No.1987 of 2017 :-3-: injunction restraining the respondent herein and his men from entering into the plaint schedule property and not to damage the gate or cut open a new way or cause any damage to petitioners' property. In O.S.No.102 of 2014 the trial court granted a temporary injunction as prayed for till the disposal of that suit. 7. The trial court ordered joint trial in O.S.No.102 of 2014 and 119 of 2014. After considering the pleadings and evidence on record the trial court dismissed O.S.No.102 of 2014 and partly decreed O.S.No.119 of 2014 by Ext.P1 common judgment dated 20.2.2017. The decretal portion in O.S.No.119 of 2014 reads thus; “i) It is hereby declared that the plaint schedule item No.1 property acquired an easement right of way by necessity through plaint schedule item No.3 property which is shown in Ext.C2(a) within the letters 'LMNPQEFGL'. Ext.C2(a) shall form part of the decree. ii) Defendants are hereby restrained from obstructing the right of way of the plaintiff, his family members and his visitors through 'LMNPQEFGL' way shown in Ext.C2 (a) to access plaint schedule item No.1. iii) Plaintiff is entitled to the costs of the suit.” O.P(C) No.1987 of 2017 :-4-: 8. On pronouncement of Ext.P1 judgment, the petitioners/ defendants filed I.A.No.362 of 2017 before the trial court, seeking stay of the decree till the filing of appeal, which application ended in dismissal. Thereafter, challenging the judgment and decree in O.S.Nos.119 of 2014 and 102 of 2014, they preferred A.S.No.63 of 2017 and A.S.No.62 of 2017 respectively before the lower appellate court. Along with A.S.No.63 of 2017, they filed I.A.No.1162 of 2017, an application for injunction under Order XLI Rule 33 and Section 151 of the Code of Civil Procedure, 1908, for restraining the respondent/plaintiff from committing any mischief, causing anything detrimental to the peaceful possession and from trespassing upon the properties, till the disposal of the appeal. 9. In I.A.No.1162 of 2017 in A.S.No.63 of 2017 the lower appellate court passed Ext.P2 order dated 5.6.2017. The said order reads thus; “Case advanced. Learned counsel for the appellants submitted that the respondents are creating obstruction by staging dharna at the gate fixed at the northern boundary of their [appellants] property for entering their property from the northern Panchayat road through the bridge O.P(C) No.1987 of 2017 :-5-: constructed by the appellants across the water channel. 2. Per contra, the learned counsel for the respondents submitted that as per the decree of the court below the respondents are provided with a pathway through 'LMNPQEFGL', shown in Ext.C2(a), and submitted that in the northern portion of plaint schedule item No.1 property, a gate has been put up by the appellants with lock and key, which creates obstruction of the pathway as granted by the court below as per the judgment dated 20.02.2017. He further submitted that the appellants have no right to obstruct the above said pathway as the same was granted by the court below that the respondents are entitled to the same as easement by necessity, and he undertakes that it will not create any obstruction as complained by the counsel for the appellants. 3. However the learned counsel for the appellants submitted that the appellants are ready to furnish a key to the respondents to facilitate their using the pathway, 'LMNPQEFGL' through the gate situated in the northern side of the plaint schedule property. 4. Taking note of the undertaking made by both counsel, I am of opinion that this petition can be closed with a direction to the appellants to furnish a key to the respondents so as to enable them to use the pathway, 'LMNPQEFGL', through the gate situated in the northern side of the plaint schedule item No.1 property and also a direction to the respondents not to create any act O.P(C) No.1987 of 2017 :-6-: detrimental to the peaceful possession and enjoyment of the plaint schedule item Nos.2 and 3 properties by the appellants.” (underline supplied) 10. The learned counsel for the petitioners would contend that, the counsel engaged by the petitioners/appellants conceded before the lower appellate court that, they are ready to furnish a key to the respondents, to facilitate them using the pathway 'LMNPQEFGL' through the gate situated on the northern side of the plaint schedule property. According to the learned counsel, the petitioners/appellants never instructed their counsel, either orally or in writing, to concede before the lower appellate court that they are ready to furnish a key to the respondents, to facilitate them using that pathway. 11. Per contra, the learned counsel for the respondent/plaintiff would contend that, if the petitioners/ appellants are aggrieved by Ext.P2 order, as alleged in this Original Petition, they could have very well brought it to the notice of the lower appellate court by filing an appropriate application for review, instead of approaching this Court under Article 227 of the O.P(C) No.1987 of 2017 :-7-: Constitution of India. The learned counsel for the respondent/ plaintiff would also contend that, the lower appellate court passed Ext.P2 order after detailed arguments by the learned counsel on both sides touching the merits of the issue and as such, Ext.P2 order cannot be termed as one issued based on any concession made by the learned counsel engaged by the petitioners/ appellants before the lower appellate court. 12. In **Assistant Commissioner, Commercial Tax Department v. Shukla and Brothers [(2010) 4 SCC 785]** the Apex Court held that, a litigant who approaches the court with any grievance in accordance with law is entitled to know the reasons for grant or rejection of his prayer. Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, it hamper the proper administration of justice. 13. In the instant case, Ext.P2 order would not show that it is one passed by the lower appellate court after detailed arguments by learned counsel on both sides touching the merits of the issue. Therefore, the contention of the learned counsel for O.P(C) No.1987 of 2017 :-8-: the respondent/plaintiff that the said order cannot be termed as one issued based on any concession made by the learned counsel engaged by the petitioners/appellants before the lower appellate court can only be repelled as untenable. 14. In such circumstances, this Court deem it appropriate to set aside Ext.P2 order of the lower appellate court dated 5.6.2017 in I.A.No.1162 of 2017 in A.S.No.63 of 2017 and the said court is directed to reconsider the said interlocutory application and pass appropriate orders thereon, as expeditiously as possible, at any rate within a period of two months from the date of production of a certified copy of this judgment. 15. Till such orders are passed the direction contained in the said order dated 5.6.2017, whereby the petitioners/appellants are directed to furnish a key to the respondents/respondents so as to enable them to use the pathway, 'LMNPQEFGL', through the gate situated in the northern side of the plaint schedule item No.1 property and also the direction to the respondents/respondents not to create any act detrimental to the peaceful possession and enjoyment of the plaint schedule item Nos.2 and 3 properties by O.P(C) No.1987 of 2017 :-9-: the petitioners/appellants shall continue to be in force. It is made clear that observations, if any, contained in this judgment touching the merits of the issues now pending adjudication before the lower appellate court are made for the limited purpose of disposal of this Original Petition and that, the lower appellate court shall proceed with the matter, untrammeled by any such observations. Sd/- **ANIL K. NARENDRAN JUDGE** //True Copy// P.A to Judge ab