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
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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
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
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
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
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
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
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
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
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
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
