Lakhmykutty AMMA, Santhakumari, Manikandan and Muralidharan vs Meera and Others

Thomas P. Joseph, J.—The defendants 1 to 3 and 5 in O.S. No. 141 of 2003 of the Munsiff''s Court, Ottapalam are aggrieved by the decree in that suit as confirmed by the Sub Court, Ottapalam in A.S. No. 48 of 2005. The 1st plaintiff and the 3rd supplemental plaintiff died. Now the contest is between respondents 1 and 2/supplemental plaintiffs 2 and 4 and the appellants/defendants 1 to 3 and 5.

The plaintiffs filed the suit for a decree for prohibitory and mandatory injunction. They claimed that the plaint A schedule property belongs to them as per Ext. A1, partition deed No. 1207 of 1977 and that they have purchased the jenm right over the property as per Ext. A2, purchase certificate. The plaint B schedule is a way which according to the plaintiffs starts from the Panchayat road on the east and reaches upto the plaint A schedule. It is the case of the plaintiffs that the plaint B schedule belongs to the tavazhy of the plaintiffs and that necessary direction is made in Ext. A1, partition deed as to the members of the tavazhy using the said way as before the partition. At the portion where the plaint B schedule entered the Panchayat road on the east, there was a gate installed on pillars. Plaintiffs removed that gate and replaced it a bit towards further west and thus there was a gap between the point where the plaint B schedule entered the Panchayat road and the gate subsequently installed. The property on the north of the plaint B schedule belonged to the defendants. The defendants were using that gap portion with permission of the plaintiffs. They were maintaining the fence on the southern side of their property (on the north of the plaint B schedule). Later, trespassing into a portion of the plaint B schedule the defendants constructed a fence. The portion trespassed upon is described as the plaint C schedule.

The defendants contended that the plaint B schedule is an ancient ''idavazhy'' which was transformed into the public way. It is not the private way of the tavazhy of the plaintiffs. That idavazhy had a width of 3 or 4 feet originally. Later the plaintiffs widened that idavazhy making use of portion of property of the defendants as well. Since that way abuts property of the defendants, they are entitled to access from the said way. They denied the allegation of trespass and construction of fence in the plaint B schedule. They also claimed that the plaint C schedule is part of their property.

The trial court on evidence found that the plaint B schedule is the private way belonging to the tavazhy of the plaintiffs and that it is used by the members of the tavazhy as per direction in Ext. A1. The trial court also found that the defendants have encroached into a portion of the plaint B schedule and constructed fence and accordingly a decree was granted in favour of the plaintiffs.

The defendants challenged that judgment and decree before the learned Sub Judge in A.S. No. 48 of 2005. The learned Sub Judge concurred with the finding entered by the learned Munsiff.

It is contended by the learned counsel that after the trial court decree, the supplemental 4th plaintiff has executed an assignment deed in favour of the brother of the 5th defendant and that document would show that the plaint B schedule is a public way. It is also contended that the said document was produced in the first appeal along with I.A. No. 144 of 2012. But, no order was passed on the said application. It is further contended that Exts. B2 and B3 would show that the plaint B schedule is a public way.

In Ext. A1, there is reference to the plaint B schedule way and directions to the members of the tavazhy as to how they should use that way as they were doing it before partition. Ext. A3 is the copy of the partition deed executed in the family of the defendants in the year, 1973. This is admitted by DW1 in his evidence. In Ext. A3, the southern boundary of the property of the defendants is described as '' '' (meaning thereby the way leading to the tarwad of the plaintiffs). DW1 has in unmistakable terms stated that '' '' referred as the southern boundary of the property which belonged to him is the plaint B schedule.

True that in Exts. B2 and B3, the assignment and mortgage deeds of the years, 1908 and 1909, respectively the southern boundary of property of the defendants is described as ''idavazhy''. But, from that, no inference is possible that the plaint B schedule is a public way. Moreover, in Ext. A3 of the year, 1973 defendants themselves admitted that the plaint B schedule is the way leading to the tarwad of the plaintiffs. Therefore, the irresistible conclusion is that the plaint B schedule is the private way belonging to the tarwad of the plaintiffs.

Assuming that the supplemental 4th plaintiff has executed an assignment deed in favour of the brother of the 6th defendant describing the plaint B schedule as a private way, that cannot affect the other plaintiffs in the suit in whose favour the trial and first appellate courts have granted a decree. No doubt, the first appellate court ought to have disposed of I.A. No. 144 of 2012 if it was not disposed of.

It is argued by the learned counsel that title of the plaintiffs over plaint A schedule is not proved. The plaintiffs have produced Exts. A1 and A2. Moreover, there was no serious dispute regarding title of the plaintiffs to the plaint A schedule the dispute being confined to the nature and character of the plaint B schedule, whether it is a private way as contended by the plaintiffs or a public way as contended by the defendants.

Exts. C1 and C1 (a) are the report and sketch prepared by the Advocate Commissioner. The Advocate Commissioner has reported that average width of the plaint B schedule is 6.25 metres and at the corner point, the width is 9.85 metres. At the entrance portion of the plaint B schedule where the dispute is raised, the width was found to be 3.5 metres. Including the encroached portion, the width of the way was found to be 5.5 metres. The trial court found that if the average width of the plaint B schedule is 6.5 metres, it is unlikely that at the disputed portion alone its width was only 3.5 metres. The trial court from the evidence concluded that there was trespass into the plaint B schedule. The decision of the trial court is confirmed by the first appellate court on evidence. The decision of the courts below is based on the facts and evidence and involves no substantial question of law. I make it clear that I have considered only the contentions the parties have raised in the plaint, written statement and as decided by the courts below.

The Second Appeal is dismissed.

All pending interlocutory applications will stand dismissed.