Kerala High Court
Subhadramma, (Died) (Lr Impleaded) vs K.R.Savithriamma on 6 November, 2024
SA NOS.663/1998 & 391 OF 1999
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
SA NO. 663 OF 1998
AGAINST THE JUDGMENT AND DECREE DATED 14.01.1998 IN AS NO.261 OF
1991 OF DISTRICT COUR,KOTTAYAM ARISING OUT OF THE JUDGMENT AND DECREE DATED
31.01.1991 IN OS NO.154 OF 1985 OF ADDITIONAL MUNSIFF COURT ,KOTTAYAM
APPELLANT/APPELLANT/PLAINTIFF:
1 SUBHADRAMMA,(DIED) LEGAL HEIR IMPLEADED
AGED 61 YEARS, RESIDING AT AREKKUNNEL,
CHIRAKADAVU WEST FROM KATTACHIRA HOUSE, ANICKADU.
ADDL.A2 INDIRA DEVI, W/O.RAMACHANDRAN NAIR,
RESIDING AT KATTACHIRA HOUSE, ANICKAD P.O.,
KOTTAYAM.
(ADDITIONAL 2ND APPELLANT IS IMPLEADED AS PER ORDER
DATED 27.03.2024 IN IA.389/2006 RENUMBERED AS
IA.2/2006)
BY ADVS.
S.RANJIT (K/250/1999)
GOKUL DAS V.V.H.
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 T.S.CHANDRAN(DIED)LHRS IMPLEADED
RESIDING AT PUTHENVEETTIL, ANICKADU P.O.
2 RADHAKRISHNAN NAIR,
KALLADAMPOIKAYIL, ANICKADU P.O.
3 GOPALAKRISHNAN NAIR, (DIED)LHRS IMPLEADED
PONGANAKKUNNU, ANICKADU P.O.
SA NOS.663/1998 & 391 OF 1999
2
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4 JANARDHANAN,MANGALATHUKUNNEL,
ANICKADU P.O.
5 DIVAKARAN NAIR,CHETTITHAZHE, ANICKADU P.O.
6 RAJASEKHARAN NAIR,(DIED) RECORDED
CHETTITHAZHE, ANICKADU.
(THE DEATH OF SIXTH RESPONDENT IS RECORDED AS PER ORDER
DATED 14.03.2014 IN IA.543/2006)
ADDL.R7 RAMAKRISHNAN,
KATTACHIRA HOUSE,ANICKAD P.O.,KOTTAYAM.
ADDL.R8 GOPALAKRISHNAN NAIR,
S/O.SUBADRAMMA, OF -DO- -DO-
ADDL.R9 NIRMALA DEVI,
W/O.GOPALAKRISHNAN NAIR, SOUPARNIKA,THEKKETHUKAVALA
P.O.,CHIRAKKADAVU,KOTTAYAM-686519.
(THE LEGAL HEIRS OF DECEASED A1 ARE IMPLEADED AS ADDL.R7 TO
R9 AS PER ORDER DATED 27.03.2024 IN IA.544/2006 RENUMBERED
AS IA.4/2006)
ADDL.R10 SANTHAMMA
AGED 71 YEARS, W/O. LATE T.S. CHANDRAN,
SANTHI NIVAS, CHALLOLI, ANICKADU P.O., PALLICKATHODU,
KOTTAYAM DISTRICT,PIN-686503.
(THE LEGAL REPRESENTATIVE OF DECEASED 1ST RESPONDENT IS
IMPLEADED AS ADDL.RESPONDENT NO.10 AS PER ORDER DATED
13.09.2024 IN IA.NO.1/2024)
ADDL.R11 LALITHABHAI,AGED 64 YEARS
PONGANAKUNNU (KOMBILACKAL), ANICKADU P.O.,KOTTAYAM
DISTRICT,PIN-686503.
ADDL.R12 ANANTHAKRISHNAN,AGED 31 YEARS
PONGANAKUNNU (KOMBILACKAL),
ANICKADU P.O.,KOTTAYAM DISTRICT,PIN-686503.
(THE LEGAL REPRESENTATIVES OF DECEASED 3RD RESPONDENT ARE
IMPLEADED AS ADDL.RESPONDENTS 11 AND 12 AS PER ORDER DATED
13.09.2024 IN IA.NO.3/2024)
BY ADVS.
R1 TO R6 BY ADV. M.S. NARAYANAN
R6 C.I.ABRAHAM
R6 GEORGE K.VARGHESE
R6 JOSE KURIAKOSE
SA NOS.663/1998 & 391 OF 1999
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R6 JOSEPH A.VADAKKEL
R6 JOHN V.J
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02.11.2024, ALONG
WITH SA.391/1999, THE COURT ON 06.11.2024 DELIVERED THE FOLLOWING:
SA NOS.663/1998 & 391 OF 1999
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 6TH DAY OF NOVEMBER 2024 / 15TH KARTHIKA, 1946
SA NO. 391 OF 1999
AGAINST THE JUDGMENT AND DECREE DATED 18.07.1998 IN AS NO.12 OF 1987
OF ADDITIONAL DISTRICT COURT,KOTTAYAM ARISING OUT OF THE JUDGMENT AND
DECREE DATED 31.05.1986 IN OS NO.698 OF 1984 OF ADDITIONAL MUNSIFF
COURT,KOTTAYAM
APPELLANT/APPELLANT/PLAINTIFF:
1 SUBHADRAMMA, (DIED) (LR IMPLEADED)
AREEKUNNEL HOUSE, CHIRAKKADAVU WEST FROM KATTACHIRA HOUSE,
ANIKKADU P.O.
ADDL.A2 INDIRA DEVI,
W/O.RAMACHANDRAN NAIR, RESIDING AT KATTACHIRA HOUSE,ARICKAD
P.O., KOTTAYAM. (LEGAL REPRESENTATIVES OF DECEASED SOLE
APPELLANT IS IMPLEADED AS ADDL.APPELLANT 2, AS PER ORDER
DATED 14.03.2014 IN IA.380/2006.)
BY ADVS.
SRI.S.RANJIT (KOTTAYAM)
SRI.GOKUL DAS V.V.H.
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 K.R.SAVITHRIAMMA
KATTACHIRA HOUSE, ANIKKADU P.O.
2 KESAVAN NAIR,(DIED)LHRS IMPLEADED
BANK EMPLOYEE, RESIDING AT KATTACHIRA HOUSE, ANIKKADU P.O.
ADDL.R3 RAMAKRISHNAN,
KATTACHIRA HOUSE,ANICKAD P.O.,KOTTAYAM.
SA NOS.663/1998 & 391 OF 1999
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ADDL.R4 GOPALAKRISHNAN NAIR,
S/O.SUBADRAMMA, OF -DO- -DO-
ADDL.R5 NIRMALA DEVI,
W/O.GOPALAKRISHNAN NAIR,SOUPARNIKA THEKKETHUKAVALA
P.O.,CHIRAKKADAVU,KOTTAYAM-686 519. (LEGAL HEIRS OF THE
DECEASED FIRST APPELLANT ARE IMPLEADED AS ADDL.R3 TO R5 AS
PER ORDER DATED 24.05.2023 IN IA.546/2006 IN SA.391/1999)
ADDL.R6 JYOTHI K.NAIR,
RAJI SADANAM,KANGAZHA P.O.,PATHANAD-686541.
ADDL.R7 GEETHA K.NAIR,
PUTHIYIDATH HOUSE,PERUMPANACHI P.O.,THENGANA,CHANGANACHERRY-
686536.
ADDL.R8 SATHI K.NAIR,
KAMBIPARAMBIL HOUSE,ANIKKADU
P.O.,ARUVIKUZHI,PALLIKKATHODU,KOTTAYAM DISTRICT-686503.
ADDL.R9 LATHA K.NAIR,
KATTACHIRA HOUSE,ANIKKADU
P.O.,ARUVIKUZHI,PALLIKKATHODU,KOTTAYAM DISTRICT-686503.
(ADDITIONAL RESPONDENTS 6 TO 9 ARE IMPLEADED AND THE FIRST
RESPONDENT IS RECORDED AS THE LEGAL HEIRS OF THE DECEASED
SECOND RESPONDENT, AS PER ORDER DATED 27.03.2024 IN
IA.1781/2010 (RENUMBERED AS IA.3/2010) IN SA.NO.391/1999.
BY ADV GOKUL DAS V.V.H.
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02.11.2024, ALONG
WITH SA.663/1998, THE COURT ON 06.11.2024 DELIVERED THE FOLLOWING:
SA NOS.663/1998 & 391 OF 1999
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JUDGMENT
[SA Nos.663/1998, 391/1999]
1. Since these two Second Appeals are filed by the same person
with respect to the same property, both these Appeals are
disposed by a common judgment.
2. S.A.No.663/1998 arises from O.S.No.154/1985 of the Munsiff
Court, Kottayam. S.A.No.391/1999 arises from
O.S.No.698/1984.
3. O.S.No.698/1984 is filed by the plaintiff against the defendants
1 and 2 who are her sister and her husband. The plaint schedule
properties in total is having an extent of 1.99 acres lying
contiguously belonging to the plaintiff, mainly planted with
rubber. There is a way from the north-western Panchayat road
touching the north-western corner of the plaint schedule
property. The defendant's property is situated on the eastern
SA NOS.663/1998 & 391 OF 1999
2024:KER:82240
side of the plaint schedule property. The defendants used to go
through the plaint schedule property in order to enter into the
Panchayath road as an easy access when the plaint schedule
properties were not properly fenced, though the defendants
have a separate entrance to their property from the Panchayat
road. The suit was filed on the apprehension that the defendants
will cut open a new way through the Plaint Schedule Property
as an extension to the existing way touching the north-western
corner of the Plaint Schedule Property. The suit was initially filed
for a permanent prohibitory injunction restraining the
defendants from trespassing into the plaint schedule property.
Subsequently, the plaintiff amended the Plaint including
a mandatory injunction to put the Plaint Schedule Property into
the original position and also to pay damages alleging that
subsequent to the filing of the suit the defendant trespassed into
the plaint schedule property and cut opened a road through the
plaint schedule property causing damage to the trees and the
SA NOS.663/1998 & 391 OF 1999
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kayyala to the tune of Rs.6,750/-. The contentions of the
defendants were to the effect that though they claim existence
of pathway through the plaint schedule property, they have no
intention to trespass into the plaint schedule properties; that
public are interested in the pathway in existence through the
plaint schedule property; that after obtaining temporary
injunction plaintiff closed major portion of the pathway and
constructed a house to prevent the public from using the
pathway; that thereupon local people filed a petition before the
Executive Magistrate under S. 133 Cr.PC and after enquiry, a
Provisional Order was passed by the Executive Magistrate for
the removal of the obstruction put up across the pathway by the
plaintiff; that the defendants have not trespassed into the plaint
schedule property on 25.11.1984; that they did not destroy any
valuable trees in the property. The Trial Court dismissed O.S
No.698/1984 as per the judgment dt. 31.05.1986 with costs
finding that there is a pathway through the plaint schedule
SA NOS.663/1998 & 391 OF 1999
2024:KER:82240
property which is being used by the persons in the locality for
going to the nearby Panchayat road; that even though the
defendants have stated in the written statement that they have
no intention to trespass into the plaint schedule property, the
right of defendants to use the pathway could not be restricted
by the mere statement in the written statement that the
defendants have no intention to trespass upon the plaint
schedule property and that the defendants have every right to
use the pathway through the plaint schedule property and the
plaintiff is not entitled to the permanent prohibitory injunction
sought for. Though the plaintiff filed A.S.No. 12/1987 before the
First Appellate Court, A.S.No. 12/1987 was dismissed by
judgment dt. 18.07.1998 confirming the judgment and decree
passed by the Trial Court in O.S No. 698/1984. The First
Appellate Court also held that the finding of the Trial Court that
there exists a public pathway running through the plaint
SA NOS.663/1998 & 391 OF 1999
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schedule property is correct and that, as members of the
general public, the defendants are entitled to use the pathway.
4. O.S.No.154/1985 was filed seeking a permanent prohibitory
injunction with respect to the very same plaint schedule property
having 1.99 acres scheduled in O.S.No. 698/1984. Six persons
residing in the locality are impleaded in the suit as defendants
with the averments that the defendants in O.S.No. 698/1984
raised a definite contention that they have no intention to
trespass into the property or to cut open a road; that they have
sounded the possibility of local people cutting open a road
through the plaint schedule property and subsequently
proceedings under S.133 Cr.PC were initiated before the RDO
which would reveal the intention of the defendants to cut open
a way through the plaint schedule property. The defendants 1
to 6 filed joint Written Statement in O.S.No.154/1985 contending
that there is a public pathway through the plaint schedule
property having a width of 3.2 meters starting from the Mudisseri
SA NOS.663/1998 & 391 OF 1999
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Point in the Kannatt-Vallothiamala Panchayat Road going to the
east; that Harijan people and others living in the nearby colony
filed Petition before the Subdivisional Magistrate, Kottayam
under S.133 Cr.PC and an order of status quo was passed in
the said proceedings; that on account of the interference of the
Police, the plaintiff and others withdrew from their attempt to
close the pathway; that since the road is in existence through
the plaint schedule property the plaintiff has no right to sue for
a permanent prohibitory injunction. O.S.No. 154/1985 was
dismissed by the Trial Court by judgment dt. 31.01.1991 holding
that there is a public pathway through the plaint schedule
property; that the plaintiff instituted the suit with clear
suppression of material facts and that the attempt of the plaintiff
is to close the pathway. The plaintiff filed A.S.No.261/1991
before the First Appellate Court and the First Appellate Court by
judgment dt. 14.01.1998 allowed the appeal in part granting a
decree of permanent prohibitory injunction restraining the
SA NOS.663/1998 & 391 OF 1999
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defendants from trespassing through the plaint schedule
property and from committing mischief or acts of waste therein,
subject to the rider that the decree will not be a bar to the
defendants to use the property for pedestrian purposes along
the track shown in Ext.C2 Plan, which is appended to the
decree. Since the road through the plaint schedule properties
was included in the survey records the right of the plaintiff to
take appropriate steps for correction of survey records deleting
the road shown in Ext.B2 plan is left open. The First Appellate
Court found that the Advocate Commissioner in
O.S.No.694/1984 conducted an inspection on 10.11.1984 and
submitted a Commission Report which is marked as Ext.A6
finding that only a pathway existed through the plaint schedule
property for access to western road from the defendants
property which lies to the east of the plaint schedule property
and that the Advocate Commissioner inspected the property
again on 28.11.1984 and submitted another report in O.S.No.
SA NOS.663/1998 & 391 OF 1999
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698/1984, which is marked as Ext.A7, in which he found
attempts to form a regular road, widening the pathway portion
at a length of 230 feet. The Appellate Court found that damage
was caused to the plaint schedule property and that the acts
were done when such acts were prohibited by the order of
temporary injunction. The Appellate Court found that in spite of
the plaintiff filing a suit and getting an injunction against his
sister and her husband, who were occupying the eastern
property, a road was cut by the defendants or by the people in
the locality. The Appellate Court found that Ext.A1 issued by the
Assistant Director of Survey and Land Records dt. 17.12.1984
shows that as on that day, there was no road through the plaint
schedule property in revenue records, but Ext.B2 Plan issued
by the same authority on 19.03.1985 shows that a part of the
plaint schedule property is shown as road. Ext.B3 and B4
Survey records continued to show the disputed portion as 3.2
meter-wide road.
SA NOS.663/1998 & 391 OF 1999
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5. S.A No.663/1998 is filed challenging the judgment and decree
of the First Appellate Court in A.S.No. 261/1991 to the extent to
which it excluded the alleged beaten track shown in Ext.C2 plan
from the decree of injunction. S.A No.391/1999 is filed
challenging the judgments and decrees of the Trial Court and
the First Appellate Court refusing to decree O.S.No.698/1984.
6. This Court formulated the following substantial question of law
in S.A.No. 663/1998.
1. In a suit for injunction simplicitor is the court justified in embarking
on an enquiry on an existence of pathway on the basis of the
defense contention alone and declaring a right to use of such
pathway. Is such an enquiry and adjudication within the scope of
the instant suit?
2. Can the court in the absence of adequate and proper pleading and
without raising an issue proceed to consider and decide the issue
SA NOS.663/1998 & 391 OF 1999
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regarding pathway especially when it is unclear whether the right
claim was public or private?
3. In view of absence of a proper plan (Ext.C2 is only a rough sketch
absolutely unacceptable on the face of it, albeit the court would
call if a 'plan') can the court declare the existence of the pathway
or the defendant's right to its use.
7. This Court formulated the following substantial questions of law
in S.A.No.391/1999.
1. Can the Court trying a suit for injunction simplicitor embark on an enquiry
as to the existence of a public right of way and proceed to determine such
right for the sole reason that the defendants claimed such a right not for
themselves but for the public at large?
2. Was the Court justified in declaring public right of way through the
property admittedly belonging to the plaintiff and non-suit him in the
absence of plea of dedication much less legal or acceptable proof
thereof?
SA NOS.663/1998 & 391 OF 1999
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8. I heard the learned counsel for the appellant Sri.S.Ranjit. There
is no appearance for the respondents.
9. The learned Counsel for the appellant contended that there are
conflicting judgments of the First Appellate Court with respect to
the alleged pathway. The First Appellate Court in
A.S.No.12/1987, arising from O.S.No.698/1984, found that the
alleged pathway is a public pathway, whereas the First
Appellate Court in A.S.No.261/1991, arising from O.S.No.
154/1985 found that the alleged pathway is not a public
pathway. The First Appellate Court in A.S.No. 261/1991 ought
not to have excluded the beaten track shown in the C2 plan from
the decree of permanent prohibitory injunction in the absence of
any pleading with respect to the same from the side of the
defendants. The Trial Court in O.S.No. 698/1984 and the First
Appellate Court in A.S.No.12/1987 arising from the said suit
acted illegally in considering whether the alleged pathway is a
public pathway or not. Since the defendants in O.S.No.
SA NOS.663/1998 & 391 OF 1999
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698/1984 contended that they have no intention to trespass into
the plaint schedule property, the Trial Court ought to have
granted injunction in favour of the plaintiff on the basis of the
said submission of the defendants without deciding the nature
of the alleged pathway. Since the claim of defendants 1 to 6 that
the alleged pathway is a public pathway is specifically
considered at the instance of defendants 1 to 6, who are the
people in the locality in A.S.No.261/1991 and entered a finding,
the finding in the judgment in A.S.No.261/1991 shall prevail.
Learned Counsel submitted that the appellant is not pressing for
the relief of mandatory injunction and damages claimed in
O.S.No.698/1984, in S.A.No.391/1999 on account of passage
of long time.
10. The learned Counsel for the appellant relied on the decision of
this Court in Radhakrishnan P K v. State of Kerala and others
2022 (2) KHC 86 to substantiate the point that there could not
be any public way through private property in the absence of
SA NOS.663/1998 & 391 OF 1999
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any express or implied surrender by the landowner. The
learned Counsel cited the Judgment dt 15.10.2015 of this
Court in R.S.A.No.709/2014 in which it is held that when there
is no evidence of any express or implied surrender of any
portion of the plaint schedule property, the claim that the plaint
schedule property is a public pathway is unsustainable. This
Court specifically referred that the case of the defendants
therein is that there existed a public pathway through the plaint
schedule property, and they have no case that they had
easement right over any portion of the plaint schedule property.
11. On considering the contentions of the counsel for the appellant,
I am of the view that the plaintiff is entitled to succeed in both
the suits.
12. The Trial Court in O.S No, 698/1984 ought not to have
considered and entered a finding that the way in question is a
public pathway, that too relying on the records in the
SA NOS.663/1998 & 391 OF 1999
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proceedings under Section.133 Cr.P.C, which are not even
properly proved before the Trial Court. The only question was
whether the defendants are entitled to get the right of way
through the plaint schedule property. In O.S.No.698/1984 the
defendants filed Written Statement specifically stating that they
have no intention to trespass into the plaint schedule property.
In view of this statement nothing more was required to be
adjudicated in the suit with respect to the prayer for permanent
prohibitory injunction. The question to be adjudicated in O.S.No.
698/1984 is primarily the entitlement of permanent prohibitory
injunction against the defendants. No enquiry whatsoever was
needed to consider whether the alleged pathway is a public
pathway or not in view of the prayers against the defendants.
Hence, I am of the view that the Trial Court in O.S.No. 698/1984
ought to have granted permanent prohibitory injunction in favour
of the plaintiff restraining the defendants from trespassing into
the plaint schedule property.
SA NOS.663/1998 & 391 OF 1999
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13. In O.S No. 154/1985, the only claim of the defendant was that
the pathway is a public pathway having a width of 3.2 meters.
The First Appellate Court in A.S.No.261/1991 arising from
O.S.NO.154/1985 specifically entered a finding that the road
was formed subsequent to the filing of O.S. No.698/1984 in
violation of the injunction order and the survey records are
modified in accordance with that. The defendants in the said suit
did not raise any other plea with respect to the said pathway.
Hence the only question to be considered in the said suit was
whether the alleged pathway in question is a public pathway or
not. The defendants did not claim any right of way through the
alleged beaten track. Even assuming that the defendants have
claimed any right of way through the alleged beaten track, the
basis of such right is not specifically pleaded and proved. Hence
the First Appellate Court in A.S.No.261/1991 acted illegally in
excluding the beaten track in Ext.C2 from the decree of the
permanent prohibitory injunction granted by it. That apart, on
SA NOS.663/1998 & 391 OF 1999
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going through Ext.C2 Plan annexed with the decree in A.S.No.
261/1991, the said Plan is a vague rough sketch without
specifically demarcating the alleged beaten track. The First
Appellate Court ought not to have granted relief relying on such
vague Sketch in favour of the defendants.
14. In view of the aforesaid discussions, the questions of law
formulated in both the appeals are answered in the negative and
in favour of the appellant.
15. S.A.No.391/1999 is allowed without costs setting aside the
judgments and decrees passed by the Trial Court and the First
Appellate Court and O.S.No.698/1984 is decreed granting
permanent prohibitory injunction restraining the defendants
from trespassing into the plaint schedule property. S.A.No.
663/1998 is allowed without costs modifying the judgment and
decree of the First Appellate Court by setting aside the direction
that the decree will not be a bar to the defendants' continued
SA NOS.663/1998 & 391 OF 1999
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use of the property for pedestrian purposes along the track
shown in Ext.C2 Plan.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
jma
