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2003 DIGILAW 441 (KER)

Thuyyath Manoharan v. Parayi Karthiayani

2003-07-10

A.LEKSHMIKUTTY

body2003
Judgment :- This appeal is filed against the judgment and decree in A.S.No.6 of 1990 on the file of the Sub Court, Thalassery which is filed against the judgment and decree in O.S.No.317/1987. The appellant is the defendant in the Original suit. The suit is filed for prohibitory injunction restraining the third defendant from trespassing into the plaint schedule property and constructing any pathway in it. As per the plaintiff, she got right and possession over the property as per Ext.A1 sale deed. The defendant has some interest over the eastern property of the plaintiff. The southern property of the plaintiff is in possession of the Health Centre. The defendant on 28-10-1987 tried to trespass into the plaint schedule property and to put up a way through the southern side of the plaintiff property. Due to an intervention of the plaintiff and her men, the defendant did not succeed in his attempt. It is understood that the defendant would trespass into the property at any time in which event the plaintiff may not be able to resist it. Hence the suit. 2. The defendant failed a written statement. It is admitted that the plaintiff has got 10 cents of property in five acres. The defendant has got 10 cents of property which lies on the eastern side of plaintiff’s property. Vattiparam Vnnathikadavu road passes through the western side of the entire 5 acres of property. The defendant and others have access to the road from were property through the path way having with of three which passes through the southern boundary of the plaint schedule property. The suit is filed only to obstruct the pathway which is being used by the defendant and others for their ingress and egress. 3. The evidence consists of the oral testimony of PW1 and documents A1 to A3. No evidence either oral or documentary was adduced by the defendant. Exts. C1 and C2 were also marked. The trial court after appreciation of the evidence dismissed the suit. Against the said judgment, the plaintiff filed A.S.No.6/1990 before the appellate court. The Appellate Court set aside the judgment and decree and allowed the appeal. Challenging the same, this appeal is filed by the defendant. 4. The question formulated in this case is whether the absence of rebuttable evidence in the case is of any consequence to non-suit the plaintiff. 5. The Appellate Court set aside the judgment and decree and allowed the appeal. Challenging the same, this appeal is filed by the defendant. 4. The question formulated in this case is whether the absence of rebuttable evidence in the case is of any consequence to non-suit the plaintiff. 5. There is no dispute with regard to the ownership of the plaintiff over plaint schedule property as per Ext.A1. It is also admitted by the plaintiff that the property on the eastern side of her property belongs to the defendant. The total extent of the property in the Survey Number is 5 acres inclusive of plaintiff’s and defendant’s property. The case of the plaintiff is that the deffandant attempted to trespass into the plaint schedule property and put up a pathway through the southern side of her property. The allegation of attempted trespass is denied by the defendant. According to the defendant, a pathway having a width of 3 feet is in existence on the southern boundary of the plaintiff’s property, which is being used by the defendant and others to reach the vattiparam Vannathikadavu road. As per the defendant there is ample evidence to show that the pathway is in existence long prior to the institution of the suit. Ext.C1 is the commission report and Ext.C2 is the plan. The allegation of the plaintiff is that the defendant trespassed into the property on 14-5-1998. Where as the suit was filed on 29-10-1987. The commissioner visited the property at the first time on 23-5-1988. Ext.C2 is the plan prepared by the Advocate Commissioner. The disputed pathway is shown as B Schedule in Ext.C2. A plot shown in Ext.C2 is now in the possession of the plaintiff. The property of the defendant is shown on the eastern side of plaintiff’s property. From the plan, it can be seen that the only access of the defendant to the Koothuparambu – Vattiparam road is B plot pathway. Plot B in the plan indicates the pathway in question. As per the Commissioner, when he inspected the property for the first time, he could notice that it was cut or repaired by keeping laterite stone in a row about one month prior to his inspection. The plaintiff was examined as PW1. Her evidence shows in between the property of the plaintiff and the southern property, there is an “eda”, (narrow strip of land). The plaintiff was examined as PW1. Her evidence shows in between the property of the plaintiff and the southern property, there is an “eda”, (narrow strip of land). It is also admitted by her that the road lies on the western side of the entire property and the defendant’s property is wet land. So it is clear that the only access to the western road is the ‘eda’ with lies on southern side of the property in east west direction, which is shown as ‘B’ in Ext.C2 plan. Plaintiff is entitled to get a decree if she proves the allegation of attempted trespass. When the Commissioner went for local inspection, he found that a pathway on the southern side of plaintiff’s property. The allegation of the plaintiff is that the defendant is trying to construct a road through southern side of her property. The Commissioner also noted a narrow strip of land on the southern side of ‘A’ in Ext.C2 separated by laterite stone. Red line drawn in Ext.C2 plan indicates B plot property and the red dotted line in B plot indicates places where no latertie stone is seen put up. At the time of examination, the plaintiff had admitted that a portion of B plot is kept open for bringing building materials to her house. All these facts would lead to the conclusion that there was a pathway even prior to the institution of the suit. As per Ext.C1, the pathway was either cut or repaired by keeping laterite stone about one month prior to his visit. As per plaintiff, the alleged trespass was on 14-5-88 and the Commissioner has visited the property only on 23-5-1988. If the plaintiff’s allegation is accepted, it is to be found that the alleged pathway has been constructed nine days prior to the visit of the Commissioner. 6. The plaintiff has no such case in the affidavit in support of the Commission application. It is true that the defendant has not adduced any evidence. As per the Commissioner, plot A Will show that there is no deficiency in the property of the plaintiff which is shown as ‘A’ plot in Ext.C2. As per the Commissioner B plot would not form part of plaint schedule property on measurement. Apart from the interested testimony of PW1, there is no evidence to prove the attempted trespass. B plot in Ext.C2 is noted a pathway. 7. As per the Commissioner B plot would not form part of plaint schedule property on measurement. Apart from the interested testimony of PW1, there is no evidence to prove the attempted trespass. B plot in Ext.C2 is noted a pathway. 7. The evidence of the plaintiff as PW1 positively disproved her case. In such circumstances, there is no need for the defendant to adduce independent evident to prove the existence of pathway as contended by the defendant. The defendant is entitled to rely upon the evidence adduced by the plaintiff. In the instant case there is the admission of the plaintiff in respect of an “eda”(Strip of land) in between her property and southern property. It is further admitted by him that the said “eda” is used as pathway through which the eastern property owner has access to the western road. The construction of the document and the oral evidence adduced by the plaintiff herself would disprove her case. So the judgment of the first appellate court is perverse. In such circumstances, this Court can interfere with the Judgment and decree of the first appellate court. Since the plaintiff had failed to prove her case, she is not entitled to get any relief. The trial court has rightly appreciated the evidence and dismissed the suit. The question of law is answered accordingly.