Baby vs Retnappan

Kerala High Court

Baby vs Retnappan on 7 May, 2024

Author: T.R. Ravi

Bench: T.R.Ravi

R.S.A.No.1262 of 2018

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                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                   THE HONOURABLE MR. JUSTICE T.R.RAVI

         TUESDAY, THE 7TH DAY OF MAY 2024 / 17TH VAISAKHA, 1946

                          RSA NO. 1262 OF 2018

(JUDGMENT AND DECREE DATED 29.09.2018 IN A.S.No.4/2011 OF THE COURT
   OF THE SUBORIDNATE COURT, CHERTHALA AGAINST THE JUDGMENT DATED
   11.01.2011 IN O.S.No.237/2008 OF THE PRINCIPAL MUNSIFF'S COURT,
                               CHERTHALA)

APPELLANT/APPELLANT/PLAINTIFF:


             BABY
             S/O.JOSEPH, PARATHARAVELI, UZUVA MURI, VAYALAR KIZHAKKU
             VILLAGE, CHERTHALA TALUK-685524.

             BY ADVS.
             MATHEW JOHN (K)
             SRI.MATHEW DEVASSI
             SRI.ABY J AUGUSTINE



RESPONDENT/RESPONDENT/DEFENDANT:

     1       RETNAPPAN (DIED) LR's IMPLEADED
             (WRONGLY SHOWN AS RENAPPAN IN THE JUDGMENTS OF THE
             COURTS BELOW), S/O.AYYAR, VELLAPPALLIL, UZUVA MURI,
             VAYALAR KIZHAKKU VILLAGE, CHERTHALA-685524.
ADDL.R2      ANASUYA RATNAPPAN, W/o.RATNAPPAN,
             VELLAPPALLIL, UZHUVA MURI, VAYALAR KIZHAKKU VILLAGE,
             CHERTHALA
ADDL.R3      SHEEBA VENUGOPAL, VAZHATHOPPIL HOUSE,
             KALAVAMKODAM P.O, CHERTHALA
ADDL.R4      SHEENA, W/o. SHAJI MON, VAZHACHIRAYIL HOUSE,
             NORTH ARYAD P.O., ALAPPUZHA
ADDL.R5      SHEEJA V.R, W/o.BABU, THEIKKATU HOUSE, PALACE WARD,
 R.S.A.No.1262 of 2018

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             ALAPPUZHA
             *ADDL. RESPONDENTS 2 TO 5 ARE IMPLEADED AS PER ORDER
             DATED 23.05.2023 IN I.A. 2/2019

             BY ADV SRI.V.M.KRISHNAKUMAR


      THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON   02.02.2024,        THE   COURT     ON   7.5.2024   DELIVERED   THE
FOLLOWING:
 R.S.A.No.1262 of 2018

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                              T.R. RAVI, J.
                --------------------------------------------
                        R.S.A.No.1262 of 2018
                --------------------------------------------
                 Dated this the 7th day of May, 2024


                               JUDGMENT

This appeal has been filed by the plaintiff in a suit for permanent prohibitory injunction, who lost his cause before the trial court and the First Appellate Court. The prayer in the suit is to restrain the respondent from interfering with the use of plaint schedule item No.2 which is contended to be a road. Plaint schedule Item No.1 is the property purchased by the appellant herein vide sale deed No.1785/2006 dated 27.7.2006. The appellant's case is that the only access to plaint item No.1 property from CMS Shaktheeswaram road on the north of the plaint schedule property, is the plaint item No.2 way, which is alleged to have been jointly converted by the plaintiff and the defendant into a motorable way, having a width of 1.2 meters on its southern side and 1.7 meters on its northern side. It is alleged that the respondent had put up an indication on the compound wall on the northern end of plaint item R.S.A.No.1262 of 2018 -4- No.2 stating that it is a private way and the use of vehicles is not permitted. The appellant contended that in view of Ext.A2 agreement dated 16.7.2003, the respondent is not entitled to block access.

2. The respondent filed a written statement disputing the description of item No.2 and contended that there is no property of the description in existence. It is claimed that apart from the way on the eastern side of plaint item No.1, there are three other roads to reach the CMS Shaktheeswaram road and the same were being used by the plaintiff and his predecessor. It is stated that when the respondent purchased his property from one Asok Kumar, he was given possession of 3 links width of property as per an agreement as an access from his property to CMS Saktheeswaram Road and no part of the property of the appellant has been used to form the motorable way to the respondent's property. It is contended that the agreement is between the defendant and his vendor Sri Asok Kumar and binds only them. It is also stated that the appellant was not using item No.2 of the plaint schedule. The measurement shown in the plaint is also disputed.

3. Exts.A1 to A4 were marked on the plaintiff's side and PWs 1 to 5 were examined. The defendant was examined as DW1 R.S.A.No.1262 of 2018 -5- and Ext.B1 was marked. Exts.C1, C1(a), C2, C2(a), C(3), and C3(a) are the Commission Report and plans and Exts.X1 and X2 are third- party exhibits. The Commissioner and the Surveyor were examined as PW3 and PW5 respectively. The evidence of PW3 and PW5 is to the effect that item No.2 property was not identified. The trial court held that the plaintiff had failed to prove the identity of plaint schedule item No.2 property and dismissed the suit.

4. A.S.No.4/2011 filed by the appellant before Sub Court, Cherthala was dismissed by the First Appellate Court, confirming the judgment and decree of the trial court. Before the First Appellate Court, the counsel for the appellant argued that the effect of Ext.A2 agreement was that Asok Kumar had given property with 3 links width for use as a pathway and the pathway was dedicated for all persons who had property on either side of the way. According to the counsel for the respondent, by Ext.A2, Asok Kumar had given the said 3 links exclusively to the respondent and the plaintiff had no right over the property given to the respondent. The court found that Ext.A2 would not prove that Asok Kumar had dedicated property to the public or to the plaintiff's predecessor for being used as a pathway. The court also noted that Asok Kumar who was the best person to speak regarding dedication, was not examined as a R.S.A.No.1262 of 2018 -6- witness. The witnesses who were examined as PW2 and PW4, do not speak of any dedication of plaint schedule item No.2 by Asok Kumar. The court found that the eastern boundary of plaint item No.1 as per Ext.A1 title deed is shown as property of the defendant and not as road/pathway, which negates the case of the appellant that there existed a pathway through the eastern side of item No.1 when he purchased the property. The court also found that the case of the appellant that he had surrendered property on the eastern side of the pathway cannot be correct since the appellant's property was admittedly on the western side of the pathway. The averment in the plaint is that the plaintiff surrendered property having a width of 1.7 metre on the north and 1.2 metre on the south from the western boundary wall of Baby. The evidence of PW1 and Ext.A1 shows that Item No.1 does not extend up to the property of Baby and the property of the defendant lies in between the property of Baby and Plaint Schedule Item No.1.

5. The second appeal has been filed in the above background. The appeal was admitted by this Court formulating the following substantial questions of law:

i. Are not the Courts below in serious error in not properly appreciating the effect of Exhibit A2 agreement executed by Ashok Kumar in favour of the defendant ? A fair R.S.A.No.1262 of 2018 -7- analysis of the recitals therein would justify the appellant's contention that Exhibit A2 clearly spells out a case of dedication of the property referred to therein to the public for use as pathway ?

ii. Are not the Courts below in serious error in overlooking the fact that item No.2 pathway is the only pathway to gain access to plaint schedule item no.1 property of the plaintiff and therefore a dismissal of the suit would render the property of the plaintiff (plaint schedule item no.1 landlocked) ?

iii. Are not the Courts below in serious error in not affording an effective opportunity to the plaintiff to identify plaint schedule item no.2 two property as described in the plaint ?

6. Heard Sri Mathew John on behalf of the appellant and Sri V.M.Krishnakumar on behalf of the respondent.

7. The counsel for the appellant submitted that to identify the properties, Advocate Commissioners were appointed on three occasions and reports and plans were also called for. However, the report and plans do not help to properly identify the property. He submitted that a reading of the reports would show that they do not support either the plaintiff or the defendant. The first plan prepared is Ext.C1(a). That was an exparte commission. It can be seen from Ext.C1(a) that, there is a road on the eastern side of the plaint item R.S.A.No.1262 of 2018 -8- No.1 property, lying north-south which connects the CMS Shakteeswaram Road to the defendant's property. According to the plaintiff, it is a way which is available for use of all the persons who own properties on the eastern and western sides of the road. The specific case of the defendant on the other hand is that plaint item No.2 belongs to him. Ext.C1(a) does not show the measurements of the road. A second report and plan were called for from the Commissioner, identifying the property of the plaintiff, plaint item No.2, the property shown in the agreement produced by the plaintiff having an extent of 279, and other aspects. Exts.C2 and C2(a) are the second report and plan submitted by the Advocate Commissioner. Ext.C2(a) is almost similar to Ext.C1(a). In addition, the properties on the western, northern, and southern sides of plaint item No.1 and the several "vazhichaal" passing through the properties are also marked. It would also show that on the eastern side of the way, which is shown as ABCDIA, there is a wall. Exts.C1(a) and C2(a) and the corresponding reports do not say that the way on the eastern side includes any portion of plaint item No.1. Exts.C3 and C3(a) are the third report and plan submitted by the Commissioner. The said report along with two plans have been prepared with the help of a retired surveyor. The first plan is the R.S.A.No.1262 of 2018 -9- survey plan relating to Sy.No.233/8. The second plan specifically shows the plaint item No.2. However, the third plan and report, instead of bringing clarity, creates more confusion regarding the facts. It would appear from the plan that a yellow coloured portion which is lying on the eastern side of plaint item No.1 is the way 'situated' in plaint item No.1. A blue-coloured portion is shown further east of the above-said way, and a red coloured portion is shown further east of the blue coloured portion. Curiously, the plan and report say that the portions shown in yellow, blue, and red are all part of plaint item No.1, which does not appear to be anybody's case. If what is reported in Exts.C3 and C3(a) is correct, it would mean that the plaintiff has properties on the east as well as the west of the road. There is a difficulty in correlating this with the documents that have been produced in the suit. Ext.A1 is the title deed relating to plaint item No.1. As per the document the eastern boundary is the property of the defendant. The plaintiff does not have a case that the road is situated entirely in his property. The finding of the Commissioner in Ext.C3 report does not tally with the title deed Ext.A1. Ext. A2 is an agreement that is relied on by both the plaintiff and the defendant. The plaintiff claims that Ext.A2 amounts to a dedication of the way by Asok Kumar, which would R.S.A.No.1262 of 2018 -10- mean that the road is not in the plaintiff's property. The defendant claims that by Ext.A2, Asok Kumar has given the property included therein to the defendant for his exclusive use as way. Ext.A2 is an agreement which is executed three years before Ext.A1 and at that point in time, the executants could not have known that the property on the west would in future be transferred to the plaintiff. Ext.A4 is a sale deed executed by Sri Asok Kumar in favour of the defendant, on the very same day as Ext.A2, which says that property to the further west of the three links given for way has been sold to the defendant. Exts.A2 and A4 would show that the eastern boundary of plaint item No.1 is the three links and the property to the east of the said three links belongs to the defendant on the basis of Ext.A4. Exts.A2 and A4 were executed three years before the sale in favour of the plaintiff. The findings in Ext.C3(a) cannot be correlated with the above documents also. In the above circumstances, no fault can be found with the courts below, in holding that the plaintiff has failed to prove the identity of the property. The only question is whether the plaintiff should be non- suited on the said ground alone.

8. There is no other way to connect the public road on the north, other than the way on the eastern side. It can be seen from R.S.A.No.1262 of 2018 -11- the different plans that the plaintiff can reach his house, from the southern side, but the same can be done only after crossing a "vazhichaal". Ext.A2 cannot be treated as a document by which the property has been transferred to the defendant since it only says that the defendant can use the property for the purpose of access. If the intention was to transfer, the same could have been done along with the property covered by Ext.A4. Moreover, Ext.A2 is not a registered document and says that neither the defendant nor Asok Kumar can use the property for any purpose other than way. This would show that ownership is still reserved with Asok Kumar, with a condition regarding the user of the property as way. Ashok Kumar is not a party to the suit. Nor has he been examined by either of the parties, to prove the intention behind the document. The defendant cannot claim absolute rights over the said property. True, this Court can dismiss the second appeal affirming the judgments of the trial court and the First Appellate Court. I am however, of the opinion that justice would not be done to either of the parties by following such a procedure and leaving the parties to litigate over again. Given the discrepancies in the three reports and plans submitted by the Advocate Commissioners, who are also officers of the Court, the Courts below ought not to have dismissed the suit throwing the R.S.A.No.1262 of 2018 -12- entire burden of identifying the property on the appellant. This is an apt case where the matter should be remanded back to the trial court, permitting the parties to implead additional defendants and establish the nature of the right if any, of either party over the property which is covered by Ext.A2 document, which alone can lead to a finality to the issue.

9. In the result, the second appeal is allowed. The substantial questions of law are answered in the manner stated above. The judgments and decrees of the trial court and the First Appellate Court are set aside. The case is remanded to the Munsiff Court, Cherthala for fresh consideration. The plaintiff and the defendant are permitted to seek amendment of the pleadings and to implead additional defendants if so advised. The parties shall appear before the Munsiff Court, Cherthala on 10.6.2024. The Munsiff Court shall endeavour to complete the proceedings after this remand within 6 months from 10.6.2024.

Sd/-

T.R. RAVI JUDGE dsn