Kerala High Court
Maya.S vs Surendran on 6 March, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 6TH DAY OF MARCH 2025 / 15TH PHALGUNA, 1946
RSA NO. 562 OF 2023
AGAINST THE JUDGMENT AND DECREE DATED 18.03.2023 IN AS NO.30
OF 2019 OF ADDITIONAL DISTRICT COURT-VI, THIRUVANATHAPURAM,
ARISING OUT OF THE JUDGMENT AND DECREE DATED 12.12.2018 IN OS
NO.578 OF 2012 OF PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM
APPELLANT/APPELLANT/PLAINTIFF:
MAYA.S.
AGED 49 YEARS
W/O SATHEESH KUMAR.N.R., KRISHNANJALI, HOUSE NO.309, TC
5/1855, NADAKKAVU LANE, AMBALAMUKKU,
THIRUVANANTHAPURAM, PIN - 695 005
BY ADV M.DINESH
RESPONDENT/RESPONDENT/DEFENDANT:
SURENDRAN
AGED 71 YEARS
SUVARNA NO.27(A), NADAKKAVU LANE, OOLAMPARA,
PEROORKADA.P.O., THIRUVANANTHAPURAM, PIN - 695 005
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2
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
06.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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3
JUDGMENT
1. The appellant is the plaintiff in the suit. The suit was for permanent
prohibitory injunction with respect to the plaint B schedule pathway.
The plaintiff is the owner of the plaint A schedule property having
an extent of 4.250 cents of land as per Ext.A4 sale deed. The
defendant has property on the northern side of the plaint A
schedule property. As per the plaint allegations, there is Plaint B
Schedule public way on the eastern side of the properties of the
plaintiff and the defendant lying north-south, and it connects
Nadakkavu Lane, turning towards east at the north and south.
Several persons have been using the said way. The cause of
action for the suit is that the defendant attempted to annex the
portion of the plaint B schedule pathway, which is situated on the
eastern side of his property, closing the northern end of the
pathway after the property of the plaintiff.
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2. The defendant opposed the suit prayers by filing a written
statement contending inter alia that the suit filed by the plaintiff is
frivolous and vexatious. The sole intention of the plaintiff in filing
the vexatious suit is to restrain the defendant from protecting his
property by resorting to the construction, fixtures, and affixtures
therein, which the plaintiff with her goons demolished. The plaintiff
and her husband had been entertaining an illegal desire of cutting
open a motorable pathway through the property of the defendants
since 2006. The defendant made a complaint before the police in
this regard. Taking advantage of the absence of defendant and his
family members during the marriage of the defendant's daughter
on 06.04.2012, the plaintiff demolished the defendant's kennel, a
portion of the compound wall, removed the portion of the roof of
the car shed, and dented one of the two gates of the defendant
and stole and hide the other gate, with the malicious intention to
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cut open a new pathway through the defendants property wherein
he had already paved tiles. There is no property or a way
answering to the plaint B schedule. There is no public way as
alleged. There is no way at all in front of the defendant's residence
and east of his property.
3. The Trial Court dismissed the suit finding that the pathway on the
eastern side of the plaint A schedule property ends at the southern
side of the defendants property, and it does not go further north
and connect the main road on the northern side. Though the
defendants filed appeal before the First Appellate Court and the
same was dismissed confirming the judgment and decree of the
Trial Court.
4. I heard the learned counsel for the appellant Sri.M.Dinesh.
5. The learned counsel for the appellant contended that two
Commission Reports were there before the Trial Court to prove the
existence of Plaint B schedule pathway. Ext.A3 would reveal that
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the Trivandrum Corporation has issued notice to the plaintiff to
remove the obstruction in the pathway, which would reveal that the
defendant has made obstruction to plaint B schedule pathway.
Though Ext.B10 certified copy of the Plan was produced and
marked in evidence nobody was examined in support of the same
to prove. Hence, the Trial Court, as well as the First Appellate,
committed a mistake in dismissing the suit.
6. I considered the contentions.
7. The plaintiff derived plaint A schedule property as per Ext.A1
document. The defendant produced Ext. B1 document which is
the prior title deed of Ext.A1. During cross-examination, PW1
admitted that Ext. B1 is the prior title deed of Ext. A1. In the sketch
attached with Ext. B1, it is clearly shown that the pathway on the
eastern side of plaint A schedule goes only up to the north-eastern
end of the plaint A schedule property. The property of the
defendant is admittedly situated on the immediate northern side of
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the plaint A schedule property; It would indicate that the plaint B
schedule pathway ends at the property of the defendant.
8. The Trial Court, as well as the First Appellate Court, has relied on
Ext. B10 Survey Plan to find that plaint B schedule property does
not go further after the property of the plaintiff. The defendant has
specifically pleaded in the written statement that the plaintiff
demolished the improvements in his property and attempted a cut-
open pathway through the eastern portion of his property when the
defendant and his family members were away in connection with
the defendant's daughter's marriage on 06.04.2012. It is seen that
the defendant submitted Ext.X3 complaint also to the police in this
regard. Ext. X3 and Ext.B4 Marriage Invitation Card of the
daughter of the defendant would indicate that the marriage was on
06.04.2012. The Trial Court, as well as the First Appellate Court,
have found that there is no evidence before it to show that the B
schedule is a public way. No document is produced to show the
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existing width and length of the alleged plaint B schedule. The
Ext.C1 Commission Report was prepared without notice to the
defendants. Even though the plaintiff claims that several people
have been using plaint B schedule pathway, nobody other than the
plaintiff was examined in this regard. The First Appellate Court has
specifically referred its judgment in C.M.A. No. 61/2013 arising
from the order of temporary injunction. It is held that the question
to be decided in the suit is whether B schedule is the defendant's
property or public property after locating the same by a Survey
Commission. The Trial Court as well as the First Appellate Court
specifically found that in spite of the said observation, the plaintiff
who seeks a decree for perpetual injunction claiming B schedule
as a public way, has not made any move before the Trial Court for
appointing an Advocate Commissioner or Surveyor so as to find
out the exact lie and location of plaint B schedule property. The
Trial Court, as well as the First Appellate Court, have entered a
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finding that there were clear malafides on the part of the plaintiff in
filing the suit. The available evidence before the Court would
prove that plaint B schedule pathway ends at the north eastern
corner of plaint A schedule property, which is the southern side of
the defendant's property. The plaintiff could not produce any
evidence to prove that the said pathway goes further north and
reaches the main road. The Trial Court, as well as the First
Appellate Court, correctly appreciated the pleadings and evidence
and arrived at the right conclusion. There is nothing to interfere
with the impugned judgments. Accordingly, the Regular Second
Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
mus
