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2017 DIGILAW 250 (KER)

MOHANAN, S/O. SANKU v. GANGADHARAN, S/O. PANGAN

2017-02-03

K.HARILAL

body2017
JUDGMENT : The appellants are the defendants in O.S. No. 92/1993 on the files of the Munsiff's Court, North Paravur. The aforesaid suit was filed for a decree of prohibitory injunction, restraining the defendants from trespassing into the plaint schedule property and committing waste therein. According to the plaintiff, the plaint schedule property, having an extent of 19.500 cents, belongs to him by virtue of Ext.A3 sale deed and the plaintiff is residing in a building situated in the plaint schedule property. The property situates on the south-western side of the property of the 2nd defendant and the 2nd defendant obtained the said property seven years ago from one Raghavan. The plaintiff has put up a fence on the northern and southern boundaries of the plaint schedule property. The defendants have no kind of right over the plaint schedule property. They have access to the public road which lies on the western side of their property; but recently they threatened the plaintiff that they will demolish the fence on the southern side of the plaint schedule and trespass into the plaint schedule and open a new pathway through the western side of the boundary. Hence the suit for injunction. 2. The defendants filed a joint written statement contending that the suit has been filed suppressing the material facts. The 2nd defendant had started residence in the property 10 years back and prior to that, their predecessors-in-interest one Raghavan and one Thoppil Joy were also residing in the property. On the northern side of the property of the defendants, the 2nd defendant had put up a fence and there is a gap in that boundary through which they entered into the plaint schedule property and proceeded towards north and reached the property of the daughter of Lonankunju and ultimately to Vypeen - Munambam public road. Apart from the aforesaid pathway, there is no other means of access to the property of the 2nd defendant. The 2nd defendant had to pass through the plaint schedule property for the purpose of drawing water from the tap situated on the northern side of the plaint schedule property. The suit was instituted immediately after closing the gap in the fence on the southern side of the plaint schedule property. The defendants have easement right of way by prescription though the plaint schedule property. The suit was instituted immediately after closing the gap in the fence on the southern side of the plaint schedule property. The defendants have easement right of way by prescription though the plaint schedule property. Hence the suit is liable to be dismissed for the suppression of material facts. 3. On the aforesaid rival pleadings, both parties adduced evidence, consists of P.Ws.1 to 4, D.Ws.1 to 5 and Exts.A1 to A3, B1 to B5, X1 to X2(f) and C1 and C1 (a). After trial, the trial court found that the plaintiff has suppressed the material facts and thereby, the plaintiff is not entitled to get the equitable remedy under Sec.34 of the Specific Relief Act. Hence the suit was dismissed. 4. But, in Appeal Suit No.29/1998 the lower appellate court reversed the findings of the trial court and decreed the suit as prayed for. Thus, the legality and correctness of the divergent views taken by the court below have come up for determination of this Court, on the basis of the question of law framed in this appeal. 5. At the time of admission, this Court framed a question of law as to "whether the plaintiff is entitled to get injunction in the light of Exts.X1 and X2?" 6. Going by the judgment passed by the trial court, it is seen that the trial court dismissed the suit on the sole ground that it could be reasonably presumed that there was a pathway to the western side of the plaint schedule property for the ingress and egress to the defendants' property which is situated on the south-western side of the plaint schedule property and the plaintiff has recently closed the said opening of the way by fencing and filed the suit claiming that the defendants have no kind of right over the plaint schedule property and thereby, suppressed the material facts before court. It is also found that the plaintiff, who has come up before the court, suppressing the material facts, with unclean hands, is not entitled to get an equitable remedy under the Specific Relief Act. 7. It is also found that the plaintiff, who has come up before the court, suppressing the material facts, with unclean hands, is not entitled to get an equitable remedy under the Specific Relief Act. 7. But, in appeal, the lower appellate court re-appreciated the entire evidence on record, more particularly Exts.X1 and X2 and arrived at a finding that there was no evidence to prove the existence of a pathway through the western side of the plaint schedule property for the ingress and egress to the defendants' property. So, injunction cannot be denied in view of the state of affairs on the date of the suit and the trial court has denied the equitable remedy, on a mere inference drawn from Exts.X1 and X2 that there was a pathway through the western side of the plaint schedule property to the property of the defendants. 8. It stands undisputed that as rightly held by the lower appellate court, there was no evidence to prove even the reminiscence of the pathway through the plaint schedule property, as claimed by the defendants. The trial court has drawn an inference that there was a pathway, on the basis of the old age of the fence on the southern side of the plaint schedule property only. Thus, merely on the basis of the finding that the fencing on the southern side was made recently, the trial court has drawn an inference that there was a pathway. It is to be remembered that even if there was a pathway through the plaint schedule property, as claimed by the defendants, the existence of a pathway alone will not confer an easement right by way of prescription, unless it is proved that the defendants had been enjoying the said pathway openly, uninterruptedly and peacefully for the last more than 20 years, before the institution of the suit. 9. Exts.X1 and X2 show that there was a dispute regarding the right of way and some settlement was reached by the interference of the local authority and a voluntary Association. ExtsX1 and X2 contained statement of the plaintiff. In Ext.X1, he stated that he had allowed the ladies to go, through his property, to take water from the water tap situated on the public road. ExtsX1 and X2 contained statement of the plaintiff. In Ext.X1, he stated that he had allowed the ladies to go, through his property, to take water from the water tap situated on the public road. In Ext.X2(c), the plaintiff has stated that he will provide 4 links way towards north along his western side, subject to the other conditions stated therein. As rightly held by the lower appellate court, Exts.X1 and X2, by itself, are not sufficient to show the existence of any pathway, which acquired the status of easement right of way by prescription. What is discernible from Exts.X1 and X2 is that there was a demand for a pathway through the plaint schedule property. 10. This Court is also of the view that even if Exts.X1 and X2 are taken at its face value, it cannot be held that the defendants had an easement right of way by prescription though the plaint schedule property. If that be so, the trial court would not have denied the equitable remedy on a mere inference that there was a claim of pathway through the plaint schedule property and the plaintiff has suppressed the claim of the defendants in the plaint. 11. It is pertinent to note that in the plaint itself there is an indication that the defendants are claiming a pathway through the plaint schedule property and they have no right to claim such a pathway through the plaint schedule property, as they have other way to get access to the south-western road. Therefore, it cannot be held that the plaintiff has wilfully suppressed the claim relating to pathway through the plaint schedule property. 12. In the above analysis, this Court finds that Exts.X1 and X2 are not sufficient to deny the prohibitory injunction sought for by the plaintiff against the defendants and the findings of the lower appellate court will stand confirmed. I do not find any illegality or impropriety in the findings of the lower appellate court. No question of law arises for consideration in this appeal. Hence, this Second Appeal is dismissed. All pending Interlocutory Applications will stand closed.