Pareeth (through LRs) v. Jose and Pappachan

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` FRIDAY, THE 28[TH] DAY OF JANUARY 2022 / 8TH MAGHA, 1943 ``` ## **`RSA NO. 372 OF 2008`** ``` AGAINST THE DECREE AND JUDGMENT DATED 13.02.2008 IN AS 123/2007 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 13.07.2007 IN OS 186/2005 OF MUNSIFF COURT,ALUVA ``` ## **`APPELLANT/RESPONDENT/PLAINTIFF:`** ``` *1PAREETH ``` ``` S/O.KANELI VEETTIL ABOOBACKER, NAYATHODU KARA, ANGAMALY VILLAGE. (DIED – LRS IMPLEADED) ``` - `ADDL. A2 ISHA PAREED, W/O PAREED, AGED 70 YERAS, KANALY HOUSE, NAYATHOD, ANGAMALY` - `ADDL. A3 SABIA MOHAMMED, D/O PAREED, AGED 50 YERAS, MUNDATH HOUSE,EDAVOOR, KOOVAPPADY.` - `ADDL. A4 IBRAHIMKUTTY K.P., S/O PAREED, AGED 47 YEARS, KANALY HOUSE, NAYATHODE, ANGAMALY` - `ADDL. A5 ABDU K.P., S/O PAREED, AGED 44 YEARS, KANALY HOUSE, NAYATHODE, ANAGAMALY` - `ADDL. A6 ABU K.P., S/O PAREED, AGED 41 YEARS, KANALY HOUSE, NAYATHODE, ANAGAMALY.` - `ADDL. A7 MOHAMMED K.P., S/O PAREED, AGED 36 YEARS, KANALY HOUSE, NAYATHODE ANAGAMLY.` ``` *AS PER ORDER DATED 15.09.2017 IN IA NO.2324/2009, LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 2 TO 7. BY ADVS. ``` ``` P.THOMAS GEEVERGHESE TONY THOMAS (INCHIPARAMBIL) E.S.FIROS AMRUTHA K.P. ``` ``` RSA NO.372 of 2008 ``` ``` 2 ``` ## **`RESPONDENTS/APPELLANTS/DEFENDANTS:`** ``` 1JOSE, AGED 48 YEARS, S/O.EDASSERY KORATH, NAYATHODU KARA,, ANGAMALY VILLAGE. 2PAPPACHAN AGED 43 YEARS S/O.EDASSERY KORATH, NAYATHODU KARA,, ANGAMALY VILLAGE. BY ADVS. SRI.M.R.ANISON SRI.P.S.ABHISHEK SMT.K.P.GEETHA MANI SMT.S.KARTHIKA SMT.KAVYA P.PRASAD SRI.M.S.UNNIKRISHNAN ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 28.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO.372 of 2008 ``` ``` 3 ``` ## **K.BABU, J.** ------------------------------------------- ## R.S.A. No. 372 of 2008 --------------------------------------------- Dated this the 28[th] day of January, 2022 ## **JUDGMENT** The appellants are the legal representatives of the plaintiff in O.S. No.186/2005 on the file of Munsiff's Court, Aluva. The defendants are the respondents. The plaintiff instituted the original suit for a permanent prohibitory injunction to restrain the defendants from reducing the width of the way that runs on the northern and eastern sides of his property. 2. The defendants are the owners of the property on the north side of the way referred to in the plaint. Defendant No.1 instituted O.S.No.248/2005 for fixation of the southern boundary of his property abutting the public way and for other reliefs. 3. Both suits were jointly tried by the Trial Court. O.S.No.186/2005 was decreed in favour of the plaintiff and O.S.No.248/2005 was dismissed. Defendants challenged the common judgment and decree of the Trial Court by filing A.S.Nos.122 and 123 of 2007 before the Additional District Court, North Paravur. The First ``` RSA NO.372 of 2008 ``` ``` 4 ``` Appellate Court allowed A.S.No.123/2007, which arose from the decree in O.S.No.186/2005 and dismissed A.S.No.122/2007. 4. The plaintiff in O.S.No.186/2005 is in appeal before this Court, invoking Section 100 of the CPC. 5. After hearing both sides, this Court reformulated the substantial questions of law as follows: (i) Is not the finding of the First Appellate Court regarding non-production of title documents in respect of the plaint ‘A’ schedule property the result of misconstruction of pleadings and evidence in the light of averments admitting the title of plaintiff over the property in the plaint in the second suit for fixation of boundary filed by the first defendant? (ii) Is not the finding of the First Appellate Court regarding the width of ‘B’ schedule way misconstruction of evidence in the light of Exhibit C1 commission report? (iii) Have the Courts below acted in accordance with law in the matter of appreciating the evidence on record? 6. Heard Sri.P.Thomas Geevarghese, the learned counsel ``` RSA NO.372 of 2008 ``` ``` 5 ``` for the appellants and Sri.M.R.Anison, the learned counsel for the respondents/defendants. 7. The dispute in this case mainly centers around the identity of plaint ‘B’ schedule way, which lies in between the properties of the plaintiff (‘A’ schedule property in O.S.No.186 of 2005) and the defendants (‘A’ schedule property in O.S.No.248 of 2005). 8. According to the plaintiff, he is the owner in possession of 63 cents of land in Re.Sy.No.414/2-3 of Angamaly village (plaint ‘A’ schedule property). Plaint ‘B’ schedule property is described as a way having an approximate length of 250 feet and an average width of 10 feet (in O.S.No.186/2005). 9. During the trial, PW1 and DW1 were examined, and Exts.C1 and C2 series were marked. 10. The case of the plaintiff is that the defendants are attempting to reduce the width of the ‘B’ schedule way. 11. The challenge of the defendants is that the width of ‘B’ schedule way is not 10 feet as pleaded by the plaintiff and it has only an average width of 8 feet. The further challenge of the defendants is that the plaintiff has no right over the entire ``` RSA NO.372 of 2008 ``` ``` 6 ``` property described as ‘B’ schedule. 12. The Trial Court held that the plaintiff established the correct identity of the plaint ‘B’ schedule property and therefore, the plaintiff is entitled to the prohibitory injunction as prayed for. 13. The First Appellate Court relied on two grounds to nonsuit the plaintiff: (1) The plaintiff failed to produce any documents either to show title or interest over ‘A’ schedule property or to show interest over ‘B’ schedule property. (2) A decree of prohibitory injunction cannot be granted unless the width of way is established by concrete evidence. 14. The learned counsel for the appellants/plaintiff contended that as the suit is for a permanent prohibitory injunction, the plaintiff was not required to establish his title over ‘A’ schedule property and what was required to be proved was the identity of ‘B’ schedule and his right to use it. 15. The learned counsel for the respondents/defendants would contend that the plaintiff miserably failed to establish that ‘B’ ``` RSA NO.372 of 2008 ``` ``` 7 ``` schedule way has a width of 10 feet as pleaded in the plaint and also his right to use ‘B’ schedule way. 16. As a matter of fact, the title of the plaintiff over ‘A’ schedule property is not at all an issue in the suit. Moreover, the defendants admitted in the plaint in O.S.No.248/2007 that the plaintiff is the owner of ‘A’ schedule property. The issue in dispute is whether the plaintiff has the right to use the ‘B’ schedule way. The plaintiff has established that he is in possession of the property on the immediate south of ‘B’ schedule way. It has come out in evidence that ‘B’ schedule way is a public way managed by Angamaly Municipality. 17. Relying on **Vavvakkavu Muslim Thaikkavupally v. Narayanan Purushan [1991 KHC 440],** the learned counsel for the appellants/plaintiff contended that the plaintiff being the owner of the land adjoining the ‘B’ schedule way is entitled to access to that way at any point at which his land actually abuts it. In **Godavari Bhai** **v. Cannanore Municipality [1984 KLT 1103],** this Court held that the right of access of an adjoining owner from his premises to the Highway and vice versa is a private right, and is distinct from his right to use the Highway as soon as he is upon it, which he enjoys only as a member of the public. It was further held that an ``` RSA NO.372 of 2008 ``` ``` 8 ``` interference with the transference of goods from the highway to private premises is, therefore, an interference with a public right in which the owner of the premises has an individual interest as a member of the public. The ratio in **Godavari Bhai (supra)** was followed by this Court in **Vavvakkavu Muslim Thaikkavupally (supra)** relied on by the learned counsel for the appellants. 18. A number of authorities at common law also fortify the views of this Court in the above mentioned cases. In the **Halsbury’s Laws of England, 4[th] Edition, 21[st] Volume, Paragraph 123** , the learned author writes thus:- “ **Nature and extent of right.** At common law, an owner of land adjoining a highway is entitled to access to that highway at any point at which his land actually touches it, even though the soil of the highway is vested in another, but he has no such right if a strip of land, however narrow, belonging to another and not subject to the public right of passage, intervenes. The right of access of an adjoining owner from his premises to the highway and vice versa is a private right, and is distinct from his right to use the highway as soon as he is upon it, which (at any rate if the soil of the highway is not his) he enjoys only as a member of the public. An interference with the transference of goods from the highway to private premises is therefore an interference with a public right in which the owner of the premises has an individual interest as a member of the public. The private right of access is subject to the public right of passage, which is the higher right, but the public right of passage is also subject to the private right of access to the highway where the adjoining owner may exercise that right by means which do not amount to a serious obstruction to the right of passage and are not therefore inconsistent with it.” ``` RSA NO.372 of 2008 ``` ``` 9 ``` ## 19. In **Smith’s Leading cases, Volume 3, 13[th] Edition, Page** ## **172** , it was held thus: “An owner of lands adjoining a highway is entitled to access to the Highway at all points where his land adjoins the highway, whether or not the soil of the highway be his” ## 20. In **Harvey v. Truro Rural District Council [(1903) 2 Ch** ## **638 at pp. 643-644]** , it was held thus:- “In the case of an ordinary highway running between fences, although it may be of a varying and unequal width, the right of passage or way prima facie, and unless there be evidence to the contrary, extends to the whole space between the fences, and the public are entitled to the entire of it as the highway, and are not confined to the part which may be metalled or kept in order for the more convenient use of carriages and foot-passengers” 21. In **Tanoor Panchayat v. Kunhiamutty [1978 KLT 813],** this Court held that an owner of land adjoining a highway is entitled as a matter of private right to access to such highway at any point at which his land actually touches it. 22. The resultant conclusion is that the plaintiff has every right to use the ‘B’ schedule property, a Municipal way that admittedly abuts plaint ‘A’ schedule property. Therefore, the plaintiff was not required to produce any document to establish his right to use the ‘B’ schedule way. The plaintiff was also not required to establish his title over ‘A’ schedule property as he was only required to establish possession over ‘A’ schedule property for the purpose of establishing his right to ‘B’ schedule way. ``` RSA NO.372 of 2008 ``` ``` 10 ``` 23. The next aspect to be considered is whether the plaintiff has established the identity of the plaint ‘B’ schedule way to seek a relief of permanent prohibitory injunction against the defendants. The First Appellate Court held that the plaintiff failed to establish the width of ‘B’ schedule way by concrete evidence. The First Appellate Court observed that in Ext.C2, the measurement plan, ‘B’ schedule way was not located, indicating the width of the same. 24. The plaintiff pleaded that the ‘B’ schedule way has an approximate length of 250 feet and an average width of 10 feet. On the application of the plaintiff in the present suit, a Commissioner was appointed, who prepared Ext.C1 series, report and sketch. The Commissioner noted in Ext.C1 series that the way has an average width of 10 feet. The Commissioner specifically noted that on the northern side, the width of the way is 10 feet, and on the eastern side it is 8 feet. The Commissioner has also reported that the approximate length of the way is more than 100 meters. The question that falls for consideration herein is whether always a survey plan is required, to prove the identity of a property. This Court in **Madhavan v. Narayanankutti and Others [ 2019 (4) KHC 854]** had an opportunity to consider such a question. This Court held that a property has to be identified not on the basis of the survey plan because the survey line is imaginary and people identify and ``` RSA NO.372 of 2008 ``` ``` 11 ``` enjoy properties not on the basis of imaginary lines, but on physical boundaries like wall, fence, row of trees, difference in level, boundary stones etc. 25. In the present case, the Commissioner has identified the property based on the physical features. Therefore, the view taken by the First Appellate Court that the plaintiff failed to get the plaint ‘B’ schedule property identified by surveying the same cannot be sustained. 26. The plaintiff has a case that the defendants are making attempt to reduce the width of plaint ‘B’ schedule way. Defendant No.1 (the plaintiff in O.S.No. 248/2005) set up a pleading that the way is a part of his property, which he affirmed in his examination in cross. This Court has already held that the plaintiff has established a right over the ‘B’ schedule way. Therefore, a reduction in the width of the way or a threat to its width would be an invasion to the right of the plaintiff to use the way. 27. The learned counsel for the respondents/defendants, relying on Ext.C1, contended that the Commissioner ascertained the width of the way based on the plants on the north of the boundary made of stones. ``` RSA NO.372 of 2008 ``` ``` 12 ``` 28. The learned counsel for the defendants relied on the pleadings in the plaint that the southern boundary of the property of defendants is made of stones. The Commissioner in the local inspection has not found a boundary made of stones on the south of the property of the defendants. The Commissioner has specifically made it clear that the ‘B’ schedule way and the property of the first defendant are separated in the field. Based on the report of the Commissioner, the Trial Court has held that there is well defined physical boundary along the southern side of the property of the defendants. This finding has become final with the dismissal of A.S.No.122/2007. Therefore, the contention of the learned counsel for the defendants that plaint ‘B’ schedule way has been measured and identified by the Commissioner based on incorrect physical features would not stand. 29. The plaintiff has established the requirements for getting a prohibitory injunction against the defendants in respect of the plaint ‘B’ schedule way, which was identified by the Commissioner in Ext.C1 series, report and sketch. This Court concludes that the plaintiff is entitled to the prohibitory injunction as prayed for. In the result, this Regular Second Appeal is allowed. The judgment and decree dated 13.02.2008, passed by the Additional ``` RSA NO.372 of 2008 ``` ``` 13 ``` District Court, North Paravur, in A.S.No.123/2007, are set aside and the judgment and decree in O.S.No.186/2005, passed by the Munsiff’s Court, Aluva, are restored. The parties are directed to bear their respective costs. ``` Sd/- K.BABU JUDGE ``` VPK