Ravi vs Rema
2021 Latest Caselaw 15305 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
         THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
 THURSDAY, THE 22ND DAY OF JULY 2021 / 31ST ASHADHA, 1943
                     R.S.A.No.417 OF 2021

      Against the judgment and decree dated 17.3.2021 in
 A.S.No.82/2018 of the third Additional District Court, Palakkad
 which arose out of the judgment and decree dated 14.3.2018 in
         O.S.No.484/2011 of the Munsiff's Court, Chittur


APPELLANT/APPELLANT/DEFENDANT:

          RAVI,
          AGED 37 YEARS,
          S/o.KUNJU, ERATTOD, PALLASSENA, PALLAVUR,
          CHITTUR, PALAKKAD-678101.
           BY ADVS.
                SRI.SHABU SREEDHARAN
                SMT.MEENU THAMPI
                SRI.AMAL STANLY
                SRI.SHYAM KUMAR.M.P
                SMT.ANISA ANDREWS


RESPONDENT/RESPONDENT/PLAINTIFF:

          REMA,
          AGED 37 YEARS,
          D/o.KRISHNAN, ERATTOD, PALLASSENA, PALLAVUR,
          CHITTUR, PALAKKAD-678101.

                BY ADV SRI.SARATH M.S.


     THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION    ON   16.07.2021,    THE   COURT     ON   22.07.2021
DELIVERED THE FOLLOWING:
 R.S.A.No.417 of 2021

                                ..2..




                             JUDGMENT

This Regular Second Appeal is directed against the

judgment and decree dated 17.3.2021 in A.S.No.82/2018

of the third Additional District Court, Palakkad (hereinafter

referred to as 'the first appellate court') which arose out of

the judgment and decree dated 14.3.2018 in

O.S.No.484/2011 of the Munsiff's Court, Chittur

(hereinafter referred to as 'the trial court'). The appellant

is the defendant in O.S.No.484/2011 and the appellant in

A.S.No.82/2018. The respondent is the plaintiff in the O.S.

and the respondent in the A.S. The parties are hereinafter

referred to as 'the plaintiff' and 'the defendant' according

to their status in the trial court unless otherwise stated.

2. The suit was for both permanent and mandatory

injunctions. The amended plaint averments in brief are

hereinbelow:-

R.S.A.No.417 of 2021

..3..

The plaint 'A' schedule property was obtained by the

plaintiff as per registered settlement deed bearing

No.2063/2010 executed by the mother of the plaintiff. The

plaintiff has been paying tax for the plaint schedule

property and she is in possession and enjoyment thereof.

The plaint 'B' schedule property is included in the plaint 'A'

schedule property. There is a canal which is located on the

southern side of the plaint 'A' schedule property. On the

northern side of the said canal bund is the house and

compound of the defendant. The way leading to the house

of the defendant is through the canal bund. On

08.10.2011, when the plaintiff was out of station, the

defendant removed the thorn fence on the eastern side of

the plaint 'A' schedule property and filled the said portion

with mud for the purpose of creating a way. The said

portion where the mud is dumped is shown as the plaint

'B' schedule property. Due to the removal of thorn fence R.S.A.No.417 of 2021

..4..

on the eastern side of the plaint 'A' schedule property, the

plaint 'A' schedule property is presently lying open without

any protection. Therefore, the plaintiff seeks issuance of

mandatory injunction directing the defendant to restore

the plaint 'B' schedule property which is dumped with mud

and also for construction of demolished fence of the plaint

'B' schedule property on its south. The plaintiff seeks

issuance of permanent prohibitory injunction restraining

the defendant from trespassing into the plaint 'A' and 'B'

schedule properties from committing any destruction or

alteration thereto and interfering with the possession and

enjoyment thereof by the plaintiff.

3. The defendant filed written statement raising

the following contentions:-

The plaint 'B' schedule property has been lying

as a way for the last several years and the same is used

as a pathway by about 150-500 families for about last 50 R.S.A.No.417 of 2021

..5..

years. For the purpose of including the said pathway to

the plaint schedule property, the plaintiff and her father

along with other family members had brought JCB for

altering the property. As road was destroyed on bringing

JCB, the entire residents filed petition before the

Pallassena Grama Panchayat Secretary on 25.7.2011. The

fact that the plaintiff and the family members had

attempted to encroach into the public way and dumped

mud therein for making it part of the plaint schedule

property is very clear. The plaintiff has no cause of action

to institute the suit.

4. The trial court raised seven issues for

determination and thereafter conducted the trial of the

case. The plaintiff was examined as PW1 and marked

Exts.A1 to A5. The defendant got examined as DW1 and a

former Panchayat member, namely, Krishnan got

examined as DW2. The commissioner was examined and R.S.A.No.417 of 2021

..6..

marked Exts.C1 to C4(a).

5. After closing the evidence on both sides, the

suit was heard. After hearing both sides, the plaintiff

amended the suit incorporating the actual measurements

reported by the Advocate Commissioner. In the additional

written statement the defendant contended that plaintiff

has no title over plaint 'A' schedule property and the plaint

schedule is a public pathway for the residents of the

locality.

6. On a consideration of the entire evidence, the

trial court decreed the suit partly on 14.3.2018 as

follows:-

"(1) The defendant is directed by way of mandatory injunction to remove the mud dumped over the plaint B schedule property as noted by the commissioner in Exhibit-C1 report and C1(a) plan within a period of one month from this date, failing which the plaintiff can get the above mandatory injunction executed through the process of the court.

R.S.A.No.417 of 2021

..7..

(2) The defendant is restrained by way of permanent prohibitory injunction from trespassing into the plaint A and B schedule properties, committing any alterations or destruction thereto and interfering with the possession and enjoyment of the plaint A and B schedule properties by the plaintiff.

(3) The parties are directed to bear their respective costs."

7. The defendant filed A.S.No.82/2018 before the

first appellate court. The appeal was dismissed confirming

the judgment and decree of the trial court. Hence, this

Regular Second Appeal.

8. Heard the learned counsel for the appellant and

the learned counsel for the respondent.

9. The learned counsel for the appellant contended

that the trial court erred in permitting the plaintiff to

amend the plaint in such a way as to introduce an entirely R.S.A.No.417 of 2021

..8..

different and new case that too after closing the evidence

and hearing the parties. It was submitted that the trial

court erred in passing the judgment and decree based on

the issues raised for determination before the

commencement of the trial without framing issues after

the amendment of the plaint. It was further submitted

that the first appellate court has gone wrong in holding

that there is absolutely no material to find that there is a

way in existence through plaint 'B' schedule property

especially when a clear cut pathway finds a place in the

rough sketches brought in by the first commissioner at the

earliest opportunity which is marked as Exts.C1(a) and

C2(a).

10. Per contra, the learned counsel for the

respondent contended that the two courts below

meticulously considered the right of the plaintiff and the

defendant over the plaint schedule property and rightly R.S.A.No.417 of 2021

..9..

held that the plaintiff and family members had attempted

to encroach into the public way and dumped mud therein

for making it part of the plaint schedule property. It was

argued that the trial court and the first appellate court

concurrently held that the plaintiff is entitled to get a

decree for both permanent and mandatory injunction. It

was further submitted that no substantial questions of law

are involved in this appeal.

11. The plaint 'A' schedule property was obtained by

the plaintiff based on Ext.A1 registered settlement deed

bearing No.2063/1/2010 executed by the mother of the

plaintiff, namely, Kalyani in favour of the plaintiff. The

plaint 'B' schedule property is a part of plaint 'A' schedule

property belonging to the plaintiff as per Ext.A1 as

reported by the commissioner in Ext.C4 series report and

plan. Exts.A2 and A3 would show that the plaintiff has

been in possession of the suit property. Ext.A5 is the R.S.A.No.417 of 2021

..10..

certified copy of the extract issued by the Sub Inspector of

Police, Kollengode which would reveal that the plaintiff

had preferred complaint against the defendant before the

Kollengode Police reporting that the defendant is

attempting to make a new pathway across the property of

the plaintiff. As per Exts.C2 and C2(a) commission report

and plan, the commissioner has reported that there exists

another pathway leading to the property of the defendant

through the canal bund located on the southern side of

the plaint schedule properties leading from the Panchayat

road. The commissioner has reported that the plaint 'B'

schedule property is part of the plaint 'A' schedule

property located in Re.Sy.No.327/2/1 on conducting

measurement based on title deed, i.e., Ext.A1. The

defendant testified that plaint 'B' schedule property is a

puramboke way used by the defendant and the public for

reaching their respective properties. It was further R.S.A.No.417 of 2021

..11..

contended that the plaint 'B' schedule property is used as

a pathway by numerous families including the defendant

for the last 50 years. The commissioner had reported that

the plaint 'B' schedule property is a part of the plaint 'A'

schedule property and that mud is dumped on the plaint

'B' schedule property for the purpose of using the same as

a way to the property of the defendant. It was further

reported by the commissioner in Exts.C2 series report and

plan that at the time of inspection conducted by the

commissioner the defendant has taken his car through the

plaint 'B' schedule property. During examination, nothing

was brought out to dispel Ext.C4 series commission report

and plan.

12. The defendant has claimed that plaint 'B'

schedule property has been used by him for the last 50

years. He has not claimed any special right over the plaint

'B' schedule property other than placing a contention that R.S.A.No.417 of 2021

..12..

the plaint 'B' schedule is a public pathway; however it was

not substantiated. DW2, who was examined on the side of

the defendant, has deposed during cross-examination that

he does not know as to who is the owner of the above

mentioned pathway or the length and width thereof. The

defendant has not produced title deed pertaining to the

property for substantiating his claim. Further, the

defendant has not produced any document to prove that

the plaint 'B' schedule property is a puramboke land as

claimed by him. The alleged public right has also not been

substantiated. At the same time, Ext.C4 series would

reveal that plaint 'B' schedule property forms part of plaint

'A' schedule property as per Ext.A1 title deed.

13. Ext.A5 extract issued by the Sub Inspector of

Police containing the details entered by him regarding

complaint filed by the plaintiff as against the defendant

would reveal that the said complaint was filed by the R.S.A.No.417 of 2021

..13..

plaintiff when the defendant had attempted to create a

way across the property of the plaintiff. Thus, the trial

court held that the defendant who has no right over the

plaint 'B' schedule property had attempted to encroach

into the plaint 'B' schedule property which forms part of

the plaint 'A' schedule property contains in Ext.A1 title

deed of the plaintiff. Accordingly, the trial court issued

mandatory injunction directing the defendant to remove

the mud dumped over the plaint 'B' schedule property as

noted by the commissioner in Ext.C1 report and C1(a)

plan. Further, the defendant was restrained by way of

permanent prohibitory injunction from trespassing into the

plaint 'A' and 'B' schedule properties committing any

alteration or destruction thereto and interfering with the

possession and enjoyment of the plaintiff over the plaint

'A' and 'B' schedule properties. On a reappraisal of the

evidence, the first appellate court agreed with the finding R.S.A.No.417 of 2021

..14..

of the trial court and dismissed the suit.

14. The condition precedent for entertaining and

deciding a second appeal is the existence of a substantial

question of law. Whether a question of law is a substantial

one and whether such question is involved in the case or

not, would depend upon the facts and circumstances of

each case. In a second appeal, the jurisdiction of the High

Court being confined to substantial question of law, a

finding of fact concurrently arrived at by the two courts

below is not open to challenge in second appeal, even if

the appreciation of evidence is palpably erroneous and the

finding of fact is incorrect. The amendment filed before

the trial court dates back to the institution of the suit.

After the amendment the defendant was given an

opportunity to file an additional written statement and

sufficient opportunity was afforded to the parties to

adduce evidence. The first appellate court examined the R.S.A.No.417 of 2021

..15..

evidence on record at length and arrived at a reasoned

conclusion that the plaintiff is entitled to get a decree for

both permanent and mandatory injunctions. This finding is

based on cogent and binding documents of title,

commission report and other relevant circumstances

including the conduct of the defendant prior to the

institution of the suit. There was no erroneous inference

from any proved fact. Nor had the burden of proof

erroneously been shifted. No substantial questions of law

are involved in this appeal.

Resultantly, this Regular Second Appeal stands

dismissed. There will be no order as to costs. Pending

applications, if any, stand closed.

Sd/-

N.ANIL KUMAR, JUDGE skj