In the given facts of the case plaintiff need
not establish that the pathway had been dedicated to the
public as a public way. She need only show that she has
been using the pathway as of right and it was obstructed by
the defendant who has no right to cause such obstruction.
Right to use the pathway through the portions of her
property where it is touching the pathway when she claims
of no other way of access to her property has to be
considered in the backdrop that the defendant under Ext.B2,
a purchaser of a portion of the property situate beside the
pathway, has only a right to use the pathway and nothing
more. IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN
FRIDAY, THE 8TH DAY OF NOVEMBER 2013
FAO.No. 316 of 2010 ( )
------------------------
COURT,TRIVANDRUM
JOHN VARGHESE(PAZHAMPALLIL), V.
SWEENA ANNA THOMAS, D/O.THOMAS.K.JACOB,
J
Dated this the 8th day of November, 2013
Citation;AIR 2014 kerala 1
Order of remand passed by the learned District Judge,
Thiruvananthapuram reversing the decree of dismissal
passed in a suit for injunction and remitting the case for
fresh disposal, is challenged in this appeal. Defendant in
the above suit is the appellant, and respondent, the
plaintiff.
2. Parties are referred to as plaintiff and defendant
hereinafter. Short facts necessary for disposal of the
appeal can be summed up thus:
Suit was for injunction, both prohibitory and
mandatory. Plaintiff claimed title and possession over
plaint schedule property having an extent of eight cents
under two settlement deeds, Exts.A2 and A3, executed by
her grandmother. Plaint property according to plaintiff
formed part of 20 cents lying behind the property of the
husband of executant of Exts.A2 and A3, situate to the east
of M.C.Road. The only access to the plaint property is
through a gate installed on its eastern compound wall, to a
pathway leading to Kelind line situate on its east. Blocking
that gate defendant, adjacent property owner, had put up a
wall and, later, he unauthorisedly constructed a car shed
demolishing the mud wall separating his property with the
plaintiff, was her case. For removal of the wall put up
blocking the gate and the car shed illegally constructed, and
for restoration of the separating compound wall of the two
properties, plaintiff filed the suit seeking the decree of
injunction.
3. Defendant resisted the suit questioning the title
deeds, Exts.A1 and A2, as sham documents and disputing
the right claimed by plaintiff over the pathway leading to
Kelind line from the eastern side of her property. Defendant
contended that the pathway over which plaintiff claimed
right formed part of 83 cents in Survey No.618 belonging to
the predecessors of his transferor in Ext.B2 sale deed.
According to defendant when a partition was effected by his
transferor with her sister under Ext.B1 deed excluding the
properties already transferred, a pathway was provided for
their convenient enjoyment of the divided items. Defendant
under Ext.B2 sale deed obtained 6.625 cents of land from
one among the sharers in Ext.B1 partition deed and that
property is situate on the north western side of the pathway
provided under that partition deed. Over the pathway
plaintiff has no right and the documents obtained in her
favour, Exts.A2 and A3, were fraudulently created to set up
a claim over the private pathway was his case contending
that to the existing temporary car shed in his property some
maintenance works alone were done. Allegations imputed
over the blocking of gate, destruction of compound wall
separating the properties of plaintiff and defendant,
construction of car shed etc. were also repudiated by
defendant.
4. Suit was dismissed by the learned Munsiff, after
trial, holding that the plaintiff was not entitled to the decree
of injunction applied for. In the appeal by plaintiff after
re-appreciating the pleadings and evidence learned District
Judge upsetting the findings entered by the Munsiff reversed
the dismissal of the suit and remitted the case for fresh
disposal with some directions. Impeaching the correctness
of that Order, the defendant has preferred this appeal.
5. I heard the counsel on both sides.
6. After going through the pleadings of parties and
also materials tendered, with reference to the submissions
made by counsel, I find that the one and only issue that
required to be considered and decided by the court in the
suit was not taken note of either by the trial court or lower
appellate court even when it reversed the decree of
dismissal and remitted the case for fresh disposal. What was
in dispute to be adjudicated upon related to the right
claimed by plaintiff over a pathway situate on the eastern
side of her property which led to Kelind line. Access to the
pathway from the gate installed on the eastern boundary of
her property was blocked by defendant putting up a wall,
and he had put up an unauthorised car shed in violation of
building rules and demolished the mud wall separating the
properties belonging to the two parties, was the case of
plaintiff for removing such constructions by mandatory
injunction, and, also for prohibitory injunction to enable her
to use the pathway unobstructed after such removal. Apart
from the contentions raised disputing the title deeds of the
plaintiff as sham documents the suit was resisted by
defendant contending that the plaintiff has no specific case
whether the pathway is a public way or a private way, and
also of any right of easement to enjoy that way. Some
complaints filed by plaintiff before police and panchayat,
copies of which were produced with the plaint, were banked
upon by the defendant before the trial court to contend that
the pathway was claimed as a public way but, without any
particulars or proof over its dedication to the public. Relying
on Ext.B1 it was also contended that the pathway was
carved out when a partition was effected by his transferee
and her sister. Learned Munsiff found merit in those
objections to nonsuit the plaintiff, which in appeal was
reversed by the lower appellate court.
7. Plaintiff has not scheduled the pathway with
respect to which the decree of mandatory and prohibitory
injunction was canvassed in the suit, but, only the property
of eight cents covered by her title deeds. District Judge has
held that inclusion of description of that pathway in the
plaint over which decree is applied for has to be made, and
plaintiff has to be given an opportunity to file an
amendment application. A further direction was also given
by the District Judge referring to some authorities over
claiming of right of easement by prescription, that plaintiff
has to amend the plaint specifying the nature of right
claimed by her over the pathway. Unless the plaintiff
specifically pleaded whether her right is over a public
pathway or right of easement over a private way she cannot
be granted the decree of injunction applied for was the
reasoning of learned District Judge to give directions as
indicated above providing opportunity to plaintiff to amend
the plaint specifying her right over the pathway.
8. I have already indicated that the dismissal of the
suit by the learned Munsiff was also more or less on the
same line that the plaintiff has not specifically claimed the
right over the pathway showing it as a public way or by
prescriptive easement over the land owned by defendant.
Both the courts have not taken note of the crux of the issue
involved over the right claimed by the plaintiff in the
pathway with reference to admitted facts and documentary
evidence tendered in the case.
9. Plaint schedule property having an extent of
eight cents on its east has access to the pathway which
leads to Kelind line but for a wall, allegedly, put up by
defendant blocking the gate on the eastern boundary of that
property, is borne out by the commission reports, Exts.C1
and C2. Existence of a gate in the eastern boundary of
plaint property which was disputed by defendant, is amply
proved. Even assuming that no such gate existed whether
the defendant has any right to put up any wall blocking
portions of the plaint schedule property having access to the
pathway is a question that necessarily has to be considered
to examine the right claimed by plaintiff to use that
pathway. Where a person has a common boundary with a
pathway beside his property unless that pathway is shown
to be the private property of another, normal rule is that he
can make use of that pathway for enjoyment of his
property. Plaintiff's definite case is that the only access to
her property is through the pathway situate on the eastern
side which leads to Kelind line. I do note that in the plaint
allegations the pathway is also referred to as Kelind line.
Whatever that be, we are concerned only with the question
whether the plaintiff has the right to use the pathway which
is stated to be the only access to her property. Should she
plead and prove that her right to use the pathway is under a
right of easement obtained by prescription or that it is public
way by dedication or otherwise. If she fails to establish any
one of the above two aspects, then, her suit has to fail
seems to be the reasoning followed by both the courts
below. If any portion of the pathway is owned by
defendant, no doubt she has to establish one of the two
aspects aforementioned. If we go by Exts.B1 and B2
documents it is crystal clear that the right conferred on
defendant over the pathway is only for enjoyment of
property, having an extent of 6.625 cents transferred to
him, situate to the north west of the pathway. Defendant
and purchaser of the adjacent property on the eastern side
of pathway from the successors of the sharer under Ext.B1
partition deed, both of them, are not conferred with any
ownership over the pathway. Ext.B1 partition deed would
show that the pathway had been carved out earlier even
before execution of that deed, for convenient enjoyment of
the properties. The right to make use of that pathway
without any proprietary title thereto alone was transferred
to the defendant under Ext.B1 sale deed. The terms
stipulated under Ext.B2 deed would indicate that all
transferees of the parties thereto have indefeasible rights to
use that pathway. Defendant who has obtained a portion of
the property covered by Ext.B2 which was allotted to one of
the two sharers has no proprietary title over the pathway
and as such no question of the plaintiff setting up any claim
of easement against the defendant would arise for
consideration. Then the question is whether the plaintiff has
to establish that the pathway has been dedicated to public
and it was enjoyed by her as a public way to sustain the
suit claims, or, only, that she has been using it as of right to
enjoy her property. Here also it has to be noted that if we
go by Ext.B2 all the transferees under the two shareholders
or their successors, on the stipulations made under that
deed have right to use that pathway, its entire extent,
without obstruction from any other transferee. Proprietary
title over the pathway is not given to the transferees but
only right to use alone for enjoyment of properties beside
the pathway transferred to them. Where defendant is not
the owner of any portion of the pathway but only a
transferee of a portion of the property situate on north west
of that pathway, who has been given right to use the
pathway alone, the plaintiff need not plead or prove any
prescriptive right of easement by prescription over such pathway.
When that be the case, where plaintiff who has a common
boundary with the pathway with a gate already put up on such
boundary comes before the court with a suit that her access to
the property is only through the pathway and its use enjoyed as
of right had been obstructed by the defendant putting up a wall
blocking the gate, and also by unauthorised construction of a car
shed, necessarily, the right so claimed by her to use the pathway
with that of the defendant, to cause any obstruction to such
use, has to be scrutinised. Defendant can cause obstruction
to the use of the pathway by plaintiff only if he has a legal
right to do so. In the given facts of the case plaintiff need
not establish that the pathway had been dedicated to the
public as a public way. She need only show that she has
been using the pathway as of right and it was obstructed by
the defendant who has no right to cause such obstruction.
Right to use the pathway through the portions of her
property where it is touching the pathway when she claims
of no other way of access to her property has to be
considered in the backdrop that the defendant under Ext.B2,
a purchaser of a portion of the property situate beside the
pathway, has only a right to use the pathway and nothing
more. That being so, I find the reasoning taken and
direction given by the learned District Judge while remitting
the case that the plaintiff has to amend the plaint to specify
her right over the pathway to claim the reliefs canvassed in
F.A.O.No.316/2010 13
the suit is not correct. However an amendment describing
the pathway including it as a separate schedule in the plaint
is necessary, and, opportunity has to be provided to the
plaintiff to seek such amendment. On such amendment
applied and allowed, the defendant is also to be provided
opportunity to file additional written statement, but, only
over correctness of the description of the pathway. Parties
should also be provided an opportunity to take out a fresh
commission to ascertain matters required for fair
adjudication and disposal of the suit.
Remand order passed by the District Judge, subject to the
observations and modifications made as indicated, is to be
confirmed, and I do so. Learned Munsiff shall make every
endeavor to dispose the suit as expeditiously as possible, but,
after giving opportunity to plaintiff to amend the plaint to include
the schedule description of the pathway and both parties to give
further evidence, if any, in the case.
F.A.O.No.316/2010 14
Parties are directed to appear before the Munsiff Court
on 2.12.2013.
Appeal is disposed as indicated directing both sides to
suffer their costs.
Sd/-
S.S.SATHEESACHANDRAN
JUDGE
ps/4/11
//True copy//
PA to Judge
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