R.S.A.No.1048 of 2007

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 4TH DAY OF APRIL 2017/14TH CHAITHRA, 1939** **RSA.No. 1048 of 2007 ( )** **-------------------------** **AGAINST THE JUDGMENT AND DECREE DATED 25-07-2007 IN AS 294/2006 of DISTRICT COURT,KOLLAM** **AGAINST THE JUDGMENT AND DECREE DATED 25.09.1997 IN OS 271/1993 of MUNSIFF COURT, KOTTARAKARA** ## **APPELLANTS/RESPONDENTS/DEFENDANTS 2,3 & 4:** **------------------------------------------** ## **1. JANARDHANAN PILLAI,** - **KUMBAZHATHUNDIL VEEDU, VENDAR MURI, PUTHOOR VILLAGE.** **2. RAJAMMA, OF DO. DO.** **3. CHELLAMMA OF DO. DO.** **BY ADVS.SRI.T.KRISHNAN UNNI (SR.) SRI.A.R.DILEEP** **SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.KAVITHA GANGADHARAN** **RESPONDENTS (ORIGINAL PLAINTIFF & LRS OF DECEASED 1ST DEFENDANT)/APPELLANT/PLAINTIFF:** **------------------------------------------------------** **1. PONNAMMA, KANDANAZHIKATHU VEEDU, VENDAR MURI, PUTHOOR VILLAGE FROM PALAKKATTU, THEKKETHIL VEEDU, VENDAR MURI, PUTHOOR VILLAGE.** **2. BALAKRISHNA PILLA, BALA BHAVAN, VENDAR P.O., KOTTARAKKARA.** **RSA.No. 1048 of 2007 ( ) -------------------------** **3. APPUKUTTAN PILLAI, POURNAMI, VENDAR P.O., KOTTARAKKARA.** **4. BHARATHI AMMA, KUMBAZHATHUNDIL VEEDU, VENDAR P.O., KOTTARAKKARA.** **R1 BY ADVS. SRI.SHABU SREEDHARAN SRI.TONY THOMAS (INCHIPARAMBIL) SMT.RESHMA ABDUL RASHEED** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/7/4/17** ## [CR] ## B. KEMAL PASHA, J ================= R.S.A.No.1048 of 2007 ================= Dated this the 4[th] day of April, 2017 ## J U D G M E N T When a composite appeal is against the decree in the suit and the decree in the counter claim, what is the effect of non payment of court fee in the appeal against the decree in the counter claim? 2. Defendants 2 to 4 in O.S.No.271 of 1993 of the Munsiff’s Court, Kottarakkara, have come up with this second appeal by challenging the judgment and decree passed by the District Court, Kollam in A.S.No.294 of 2006. 3. The suit is one for perpetual injunction restraining the defendants from trespassing into the plaint schedule property and from altering its R.S.A.No.1048 of 2007 2 boundaries and from committing any waste thereon. The defendants raised a counter claim through the written statement claiming a right of easement over the pathway, which commences from the road lying at the northern side of the plaint schedule property and passes through eastern extremity of the plaint schedule property which ends at the property of the defendants. The said pathway is scheduled as the counter claim schedule property. A relief has been sought for, for the declaration of the said easement right. 4. The Munsiff’s Court, Kottarakkara, after trial, dismissed the suit and allowed the counter claim. Aggrieved by the judgment and decree, the plaintiff preferred A.S.No.33 of 1998 before the Subordinate Judge’s Court, Kottarakkara, which was later withdrawn to the District Court, Kollam. The appeal was re-numbered as A.S.No.294 of 2006 before the District Court, Kollam. R.S.A.No.1048 of 2007 3 5. The appeal memorandum before the lower appellate court shows that it is a composite appeal preferred against the dismissal of the suit as well as against the decree in the counter claim. The appellant before the lower appellate court has sought for the reversal of the dismissal of the suit and the dismissal of the counter claim. At the same time, the appellant before the lower appellate court had paid court fee under Section 52 read with Section 27(c) of the Kerala Court Fees and Suits Valuation Act alone. Therefore, evidently no court fee was paid in respect of the appeal challenging the decree in the counter claim. 6. This Court has admitted this second appeal on the following substantial questions of law: “1) When the evidence establish the existence of an old way through the plaint schedule property from the property of the respondents which reaches the northern public road and R.S.A.No.1048 of 2007 4 the suit was filed suppressing the existence of that way and contending that respondents are attempting to carve out a way, whether the first appellate court was justified in granting a decree for permanent prohibitory injunction, in spite of suppression of material facts? 2) When in the first appeal the respondents-plaintiff did not pay court fee on the counter claim decreed by the trial court, whether first appellate court was justified in setting aside the decree on the counter claim?” 7. Heard the learned counsel for the appellants and the learned counsel for the respondents. 8. It seems that the lower appellate court has framed one and only issue as follows: “Whether the findings of the court below, regarding the existence of the way and right of defendants to use the said way, call for any interference?” Therefore, evidently, the lower appellate court has R.S.A.No.1048 of 2007 5 considered the appeal as one filed by challenging the decree in the counter claim. In the written statement, the counter claim has been valued at `1,000/- and a court fee of `20/- was paid under Section 31 of the Kerala Court Fees and Suits Valuation Act. Even then, the appellant had not paid the said court fee for an appeal against the decree in the counter claim under Section 52 read with Section 31 of the Kerala Court Fees and Suits Valuation Act. The lower appellate court, without taking note of the said fact, has allowed the appeal, by setting aside the judgment and decree passed by the trial court, by granting a decree of perpetual injunction as prayed for by the plaintiff and also by dismissing the counter claim. When no court fee was paid on the appeal against the decree in the courter claim, the lower appellate court ought to have considered that there was no appeal against the decree in the counter claim and in such case, the lower appellate R.S.A.No.1048 of 2007 6 court ought to have considered that the appeal against the dismissal of the suit was hit by the principles of res judicata on account of a want of appeal against the decree in the counter claim. 9. The learned counsel for the appellants has relied on the decision of this Court in Nherapoyil N.P. Moideen v. K.Narayanan Nair [AIR 1997 KERALA 318]; wherein it was held in paragraph 6 that: “6. In the light of these decisions let us consider as to whether non payment of Court-fee on the plea of counter claim in the appeal will work as res judicata. By non-payment of Court-fee on the counter claim in appeal, the appellate Court is not in a position to consider the question of counter claim. Thus it has to be held that the counter claim as rejected by the lower Court has become final. That portion of the discharge of the suit amount as raising the counter claim cannot be considered by the R.S.A.No.1048 of 2007 7 appellate Court on the principle of res judicata. But at the same time the question of discharge of the decree amount can be considered by the appellate Court.” 10. As rightly pointed out by the learned counsel for the appellants, when no court fee was paid in the appeal as against the decree in counter claim, it should have been treated as absence of a valid appeal against the decree in the counter claim. In the absence of such an appeal, the decree in the counter claim passed by the trial court became final, which would operate as res judicata as against the appeal against the dismissal of the suit. Matters being so, the judgment and decree passed by the lower appellate court are not legally sustainable and the same are liable to be set aside. 11. On a perusal of the written statement, it has come out that even though the pleadings were pointing towards the plea for quasi easement, the R.S.A.No.1048 of 2007 8 same has not been specifically and properly pleaded. The relief sought for is also not specific. In these circumstances, this Court is of the view that the appellants can be permitted to amend their written statement properly for incorporating specific pleadings with regard to the pathway in question, either quasi easement or easement of necessity, whatever it is. Specifically, the relief has also to be sought for relating to the counter claim. The property of the appellants has also to be scheduled in the plaint. A commission has also to be taken out with the aid of a Surveyor to locate and identify the disputed pathway, if any. In the result, this second appeal is allowed and the judgments and decrees passed by the lower appellate court as well as the trial court are set aside. The suit is remitted to the trial court for fresh disposal in accordance with the law, by giving an opportunity to the defendants to amend their written R.S.A.No.1048 of 2007 9 statement as observed above. An opportunity shall be granted to the defendants to take out a Commission for the purpose as aforesaid. The parties shall be permitted to adduce further evidence, if so advised. The parties shall maintain status quo till the disposal of the suit. The parties shall appear before the Munsiff’s Court, Kottarakkara on 30.05.2017. Sd/- B. KEMAL PASHA JUDGE DSV/5/4/17 // True Copy // P.A. To Judge