N. Soman and Sudha Devi v. Sivaranjan and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 RSA.No. 30 of 2011() -------------------AS.156/2007 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.595/2004 of II ADDL.MUNSIFF COURT,TRIVANDRUM .................... ## APPELLANTS/APPELLANTS/PLAINTIFFS ---------------------------------------------------- 1. N.SOMAN, S/O. NARAYANAN, TC NO.30/232(1), KALLUMMOODU, ANAYARA P.O., THIRUVANANTHAPURAM. 2. SUDHA DEVI, W/O. HARIDAS, TC NO.30/132(1), KALLUMMOODU, ANAYARA P.O., THIRUVANANTHAPURAM. - BY ADV. SRI.K.KARTHIKEYA PANICKER SMT.DAYA K. PANICKER RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. SIVARAJAN, S/O. CHELLAPPAN CHETTIYAR, ANAMIKA, KALLUMMOODU, ANAYARA P.O., THIRUVANANTHAPURAM-695 029. 2. VASANTHA, W/O. SIVARAJAN, ANAMIKA, KALLUMMOODU, ANAYARA P.O., THIRUVANANTHAPURAM-695 029. 3. DEEPA S.RAJAN, D/O. VASANTHA, ANAMIKA, TC NO.30/234, KALLUMMOODU, ANAYARA P.O., THIRUVANANTHAPURAM-695 029. 4. ANOOPA S.RAJAN, D/O. VASANTHA, ANAMIKA, TC NO.30/234, KALLUMMOODU, ANAYARA P.O., THIRUVANANTHAPURAM-695 029. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/01/2011, THE COURT ON 08/02/2011 PASSED THE FOLLOWING: ## **S.S.SATHEESACHANDRAN, J -------------------------------------R.S.A No.30 OF 2011** ## **-------------------------------Dated this the 8[th] day of January 2011** ## **JUDGMENT** Plaintiffs are the appellants. Suit was one for injunction. Suit was dismissed by the trial court, which was confirmed in appeal by the lower appellate court. Impeaching the concurrent decision rendered non-suiting them, and, feeling aggrieved, the plaintiffs have preferred this appeal. 2. The dispute involved in the suit essentially related to a pathway described as 'E' schedule, which, according to the plaintiffs formed part of a portion of another pathway described as 'B' schedule. The plaintiffs have got title and possession over 'C' schedule, and the defendants 'D' schedule properties described in the suit, was their case. The above 'C' and 'D' schedule properties were portions of 1 acre 68 cents, which formed part of a larger extent of 2 acre and 43 cents involved in a partition effected by the members of a joint family. After such division, when further partition of the 1 acre 68 cents of property was made, a pathway having an extent of 6 cents of land was set apart as a pathway for convenient enjoyment of the plots allotted R.S.A No.30 OF 2011 - 2 - to the sharers. Later, by exchange between the members of the thavazhy, who had right over the 6 cents of the aforesaid pathway, one half portion of that pathway was exchanged by them in lieu of surrender of 1.5 cents of land from the holdings of another set of persons, namely, one Krishnan Nair and his wife, to form a pathway. The land so surrendered by the aforesaid Krishnan Nair and his wife is described by the plaintiffs as 'B' schedule. A portion of 'B' schedule pathway, according to the plaintiffs, lies to the north of 'D' schedule, and it is enjoyed by the plaintiffs as a right of easement. That portion of pathway is described as 'E' schedule. Attempts by the defendants to annex that pathway, which formed part of 'B' schedule, but, separately described as 'E' schedule, putting up constructions, is the basis of the suit for seeking a decree of permanent prohibitory injunction to restrain the defendants from reducing the 'E' schedule pathway portions, putting up compound wall on the north of 'B' schedule and from doing anything which will destroy the plaintiffs' right of easement over 'E' schedule. 3. Suit was initially filed against two defendants alone (D1 and D2), but, later, since they had assigned portions of their land to their children, the assignees were also brought on record as 3[rd] R.S.A No.30 OF 2011 - 3 - and 4[th] defendants. Defendants 1 and 2 jointly and the additional defendants separately filed written statements resisting the suit claim, in which disputing the description and identity of the properties scheduled in the plaint, more particularly 'B' and 'E' schedules, they contended that the pathways described under 'B' and 'E' schedule are imaginary and not in existence. They also set up counter claims for injunction against the plaintiffs, and also for putting of boundary in respect of the property scheduled in their written statement. Plaintiffs filed written statement disputing the counter claims raised by the defendants. 4. On the side of the plaintiffs, PW1 was examined and Exts.A1 to A4 were exhibited. For the defendants, DW1 was examined and Exts.D1 to D14 were exhibited. The advocate commissioner who prepared Ext.C1 report and C1(a) and C1(b) plans was examined as CW1. The commissioner had reported that 'E' schedule property, in respect of which injunction was applied by the plaintiffs, could not be identified and it was not in existence. The trial court, after appreciating the materials tendered as above, with reference to the reports and plans of the commissioner, came to the conclusion that 'E' schedule is not in existence, and accordingly, the plaintiffs were found not entitled R.S.A No.30 OF 2011 - 4 - to the reliefs canvassed in their suit. Similarly, counter claim raised by the defendants was also found meritless, which too was turned down. As against the decision rendered dismissing the suit and the counter claim, both sides preferred appeals. The lower appellate court, after reappraisal of the materials, concurring with the conclusion formed by the trial court, dismissed both the appeals. Plaintiffs have now come up with the above appeal challenging the decree of dismissal of their suit, concurrently, by both the courts. 5. I heard the learned counsel for the appellants/plaintiffs. The main thrust of attack levelled against the judgments of the courts below by the learned counsel is that when the commissioner failed to identify 'E' schedule pathway in respect of which decree of injunction was applied for, his report should have been remitted, if necessary, issuing specific directions for locating the pathway with reference to the documents and also the boundaries. Both the courts failed to note that fixing the location of 'E' schedule pathway by remitting the report and calling for a fresh report was warranted in the case, but, blindly accepting the report of the commissioner, and, his failure to locate and identify the pathway, according to the counsel, the plaintiffs were R.S.A No.30 OF 2011 - 5 - non-suited. Relying on **“Kallil Thiruvalil Abdulla Haji v Earayintavide Anneri Krishnan” (2007(2) KHC 777)** , the learned counsel contended that the dismissal of the suit without considering the question of identification of property was not just and proper. 6. After going through the judgments rendered by both the courts below, I find no merit in the submissions made by the learned counsel for the appellants/plaintiffs impeaching the dismissal of the suit concurrently. Suit was one for injunction alone and that too in respect of a pathway which was disputed by the defendants as imaginary and nonexistent. The claim of the plaintiffs was essentially built upon the citadel that there was an exchange deed, by which one half of the pathway having 6 cents set out in the partition deed effected among the members of a joint family was surrendered in exchange of 1.5 cents of land from their holdings by the predecessor of the defendants. 1.5 cents of land so surrendered is described as 'B' schedule pathway, and the 'E' schedule in the suit, in respect of which reliefs are canvassed, is alleged to be a portion of 'B' schedule. Ext.A2 is that exchange deed. Ext.A2 exchange deed is seen executed in 1978. The case of the plaintiffs was that they have obtained easement by R.S.A No.30 OF 2011 - 6 - grant over 'E' schedule pathway which formed part of 'B' schedule. That being so, without establishing their entitlement to get a declaration of such right, the relief canvassed over 'E' schedule, which could not be identified by the advocate commissioner and shown to be nonexistent was not at all allowable. The decision relied by the counsel, Kallil Thiruvalil Abdulla Haji's case, was rendered in a title suit, in fact, one for recovery of possession on the strength of title, where different parameters have to be followed in deciding the lis. Further more in that reported case no question over identification was framed and considered, but, the suit was dismissed without affording an opportunity to the plaintiffs to identify the suit property. In the contextual situation as indicated above it was stated the dismissal of the suit for recovery of possession without going into and identifying the suit property was improper. However, in the present suit for injunction where the claim is raised over the pathway asserting a right of easement by grant, the identification of such pathway and also the right of the plaintiffs to use the same as claimed, both of them are crucial. Suit being one for injunction alone with no declaration sought for over the right of easement by grant, the adjudication of which can be made only in a properly framed suit thereof canvassing such relief, the R.S.A No.30 OF 2011 - 7 - identification of the pathway, 'E' schedule', described in the suit, which, according to the commissioner, is nonexistent, is decisive and fatal to the claim for injunction canvassed by the plaintiffs. There is no infirmity leave alone any illegality in the concurrent decision rendered by both the courts, which for other reasons as well has to be sustained. There is no error in the concurrent decision rendered by the courts on the disputed facts presented, and no question of law leave alone any substantial question of law is involved in the appeal. If plaintiffs are entitled to any declaration of easement by grant over 'E' schedule property, it is open to them to claim that relief irrespective of the dismissal of their suit for injunction, if so advised. Subject to the observation made as above, the appeal is dismissed. Sd/- **S.S.SATHEESACHANDRAN JUDGE** ## **//True Copy//** ## **P.A to Judge** vdv