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2023 DIGILAW 827 (KER)

Joseph John v. P. A. Johny Kutty @ Yohannan

2023-10-24

A.BADHARUDEEN

body2023
JUDGMENT : The defendants in O.S.No.623/2015 on the files of the Principal Munsiff Court, Alappuzha, who are aggrieved by the decree and judgment in the above case dated 31.10.2019, confirmed by the Additional District Court-II, Alappuzha in A.S.No.74/2019 along with cross objection, vide decree and judgment dated 27.01.2021, have filed this Second Appeal under Order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (for short ‘C.P.C' hereafter for convenience). The respondent in this Second Appeal is the sole plaintiff in the Suit. 2. I shall refer the parties in this appeal with reference to their status before the trial court, as ‘plaintiff’ and ‘defendants’ hereafter for easy reference. 3. Heard the learned counsel for the appellants/defendants and the sole respondent/plaintiff, on admission. 4. Perused the lower court records and the judgments under challenge. 5. In this matter, the plaintiff filed Suit for permanent prohibitory injunction restraining the defendants and their men from closing or reducing the width of plaint C schedule road, which is available towards the plaint A schedule property owned by the plaintiff for vehicular traffic, when he apprehended obstruction of the same by the defendants. According to the plaintiff, plaint C schedule is a public road having 45 metre length and 12 feet width vested in Panchayat and, therefore, the defendants have no manner of right to obstruct the same. 6. Defendants 1 to 5 filed joint written statement and additional written statement admitting the existence of plaint C schedule road having a width of 6 feet being part of plaint B schedule property owned by the defendants. They specifically disputed the nature of the road as public road having a width of 12 feet. 7. Referring to the above pleadings, the trial court ventured the matter. PWs 1 to 7 were examined and Exts.A1 to A8 series were marked on the side of the plaintiff. DW1 to DW5 were examined and Exts.B1 to B7 were marked on the side of the defendants. Ext.C1 series were marked as court exhibits and Exts.X1 to X6 were also marked. 8. On appreciation of evidence, the trial court granted prohibitory injunction against obstruction of ‘C' schedule road, confining the same having a width of 2.75 metre, instead of 12 feet claimed by the plaintiff. Ext.C1 series were marked as court exhibits and Exts.X1 to X6 were also marked. 8. On appreciation of evidence, the trial court granted prohibitory injunction against obstruction of ‘C' schedule road, confining the same having a width of 2.75 metre, instead of 12 feet claimed by the plaintiff. The decree granted by the trial court runs as under: “In the result, the suit is decreed with costs as follows: Defendants, their men and agents are restrained by a decree of permanent prohibitory injunction from closing or reducing the width of the plaint C scheduled pathway ie. 2.75 metre as mentioned in Ext.C1 series from causing any obstruction to the right of road of the plaintiff through plaint C scheduled pathway for ingress and egress to plaint A scheduled property including vehicular traffic. 2. Plaintiff is also entitled to realise the costs of the suit from the defendants.” 9. In appeal filed by the defendants, the first appellate court modified the decree and granted relief in respect of ‘C' schedule as under: “1. I dismiss this appeal with cost of the respondent. 2. I allow the cross objection and modify the decree as follows: The defendants or other persons under them are restrained by a decree of permanent prohibitory injunction from closing or reducing the width of plaint C scheduled road, which has a width of 3.95 meter at the starting point and 3.80 meter to a length of 40 meter and then 2.75 meter as reported by the Advocate Commissioner in Ext.C1 report, and from causing any obstruction to the right of road of the plaintiff through plaint C scheduled road for ingress and egress to the Plaint A scheduled property, including vehicular traffic. 3. The defendants are directed to remove the fence constructed in C scheduled property within 2 months from the date of this judgment, failing which, the plaintiff will be at liberty to remove the same through due process of law.” 10. According to the learned counsel for the defendants, substantial questions of law are involved in this matter since the appellate court granted relief in relation to the entire area as stated in Ext.C1 report deeming the same as public road, though the evidence would not justify the same. Further the appellate court also granted mandatory injunction to remove the obstruction in the ‘C' schedule road without a prayer for the same, supported by sufficient pleadings. Further the appellate court also granted mandatory injunction to remove the obstruction in the ‘C' schedule road without a prayer for the same, supported by sufficient pleadings. 11. Whereas the learned Senior Counsel for the plaintiff submitted that no substantial question of law arises to admit and maintain this appeal and the appellate court rightly granted decree on appraisal of the fact that the road located in Ext.C1 report is a public road. 12. In this matter, on perusal of the records, on par with the rival arguments, the following substantial questions of law formulated and the appeal is admitted. (i) Whether the first appellate court is justified in granting the relief of mandatory injunction without a prayer, supported by pleadings for the same, in the plaint? (ii) Whether the first appellate court went wrong in finding the entire road as per Ext.C1 series as public road ignoring the documents issued by the Panchayat confining the same to a width of 2.50 metre? (iii) Whether a deemed/implied surrender of property for the purpose of road, by the land owner is to be inferred, when a land owner leaves some extent of property abutting a public road in existence, while constructing compound wall? 13. Addressing the second and third questions, in this matter, originally suit was filed for declaration of right of easement by grant over C schedule road. Subsequently the said prayer was deleted and the relief of prohibitory injunction alone was pressed into after amending the stature of plaint ‘C' schedule as a public road. It is submitted by the learned counsel for the defendants that even though there are averments in the plaint to establish right of easement, by way of amendment, the plaintiff raised specific contention that plaint C schedule is a public road maintained by the Panchayat. It is submitted by the learned counsel for the defendants further that as per the records placed by the Panchayat, the width of the road is not as stated by the Commissioner. 14. In this matter, PW5 examined is the Secretary, Chambakkulam Panchayat and he had produced Ext.A4(a) extract of the relevant page of the asset register along with the original, before the trial court. On perusal of Ext.A4, the same would go to show that the width of C schedule road is 2.50 metre with carriage road of 1.50 metre. 14. In this matter, PW5 examined is the Secretary, Chambakkulam Panchayat and he had produced Ext.A4(a) extract of the relevant page of the asset register along with the original, before the trial court. On perusal of Ext.A4, the same would go to show that the width of C schedule road is 2.50 metre with carriage road of 1.50 metre. Further Ext.A4 would go to show that the width of the road is only 2.50 metre from 2006 onwards. The defendants also did not deny the fact that the road, as mentioned in Ext.A4, is one maintained by the Panchayat. In this context, Ext.X1 series assume significance. It is relevant to note that the trial court as well as the appellate court ventured the nature of the road as public road. The courts below found that as per the evidence of PW6, the Commissioner, and as per Ext.C1 series, C schedule road is one maintained by the Panchayat and the width of the said road is 2 metre at the southern side of A schedule property. The width continues at 2 metre till the same reaches on the north western corner of B schedule property. From there, the road turns towards south and reaches another Panchayat road and the width of the road at that portion is only 4 feet. Therefore, the first appellate court observed that in view of the matter, the entire width of the road at 2.5 metre width cannot be believed. 15. Ext.B2 series in this case are the true copies of estimate prepared for the maintenance of the road during the year 20102011. Ext.B2 series contain the estimate for the period 2007-2015. As per Ext.B2 series the width of the road during 2007-08 was 1.50 metre and the width during 2010-2011 was 1.80 metre. The Trustee of the Church/the 1st defendant as well as the convener of the Church admitted that he had filed Ext.X1 petition before the Panchayath stating that the width of the road is 2.50 metre earlier and he requested to correct the width at 6 feet, as the road accepted and provided by the defendant is only 6 feet. 16. In this case, according to the plaintiff, the width of the road is 12 feet; whereas the defendants would say that the road in existence as of now is the property originally owned by the defendants. 16. In this case, according to the plaintiff, the width of the road is 12 feet; whereas the defendants would say that the road in existence as of now is the property originally owned by the defendants. Later the defendants, set apart 6 feet pathroad alone, though some more width is available outside the compound wall of the Church since the Church could not construct compound wall on the extremity of the road as the area lied as waterlogged at the time of construction. On perusal of Ext.X3 report, the width of the road is only 2.50 metre. As per Ext.X4, the width of the road is 1.80 metre to a distance of 45 metre and then at a length of 1.5 metre to a distance of 1.5 metre. 17. Thus it appears that the available road maintained by the Panchayath is only upto 2.50 and not more than that. However, in the commission report and mahazar, marked as Ext.C1 series, the width of the road is shown in detail with different width at different places as under. That is to say, as per the commission report, on the eastern end, where C schedule road joins the eastern panchayath road, C schedule road has a width of 3.95 metre. On its western end, C schedule road has a width of 2.75 m. 18. The deposition of PW6, the Commissioner, and his report would show that the boundary walls on both sides of C scheduled property are old boundary walls. PW1 deposed that the defendants had constructed the northern boundary wall of B scheduled property in 1992. But, he did not produce any documents to prove the same. At the same time, DW1, admitted that the said wall was constructed between 2000 and 2005. This admission would show that the compound wall was constructed, at least before 10-15 years from the date of the suit. 19. The trial court confined the relief treating the width of the Panchayath road in existence at a uniform width of 2.75 metre. It is interesting to note that the learned counsel for the plaintiff has given heavy reliance on Ext.X6 series, to assert the point that when the Panchayath in collision with the defendants attempted to reduce the width of the road, complaints were filed by the plaintiff before the Vigilance Department. It is interesting to note that the learned counsel for the plaintiff has given heavy reliance on Ext.X6 series, to assert the point that when the Panchayath in collision with the defendants attempted to reduce the width of the road, complaints were filed by the plaintiff before the Vigilance Department. According to the learned counsel for the plaintiff, the inquiry and the finding thereof would support the case of the plaintiff. In the case at hand, as per the records maintained by the Panchayat, the maximum width of the road is only 2.50 metre and the width is less than 2.50 metre in some areas. The trial court, relied on the evidence of PW1 and PW6 coupled with Ext.C1 series to hold that ‘C' schedule road in existence is having a width of 2.75 metre and accordingly prohibitory injunction was granted in respect of the said road. The appellate court while dismissing the appeal at the instance of the defendants, allowed the Cross Objection filed by the plaintiff and granted prohibitory injunction in favour of the plaintiff confining the same in respect of the existing road as per Ext.C1 series. 20. Even though Ext.X6 series documents are documents generated during the pendency of this case, as things stand now, the road in existence as C schedule on the northern side of B schedule, as reported by the Commissioner, shows different width, as already pointed out. But the records available would show that the maximum width of the panchayath road in existence is 2.50 metre. The specific contention raised by the defendants is that when northern boundary wall of the defendants' property was constructed, some more property, in excess of 6 feet actually provided for the road, abutting the road was left since it was found that compound wall could not be constructed on the northern extremity of the ‘B' schedule property, because the said area lied as waterlogged at the time of construction of compound wall, making construction impossible. But the said contention is not at all established by evidence. Therefore, the inference is that the defendants left some more property abutting the road in existence and constructed compound wall. As admitted by DW1, the compound wall was constructed 10-15 years before. But the said contention is not at all established by evidence. Therefore, the inference is that the defendants left some more property abutting the road in existence and constructed compound wall. As admitted by DW1, the compound wall was constructed 10-15 years before. In this context, it is relevant to consider what will be the legal consequence, when a person, who is having property abutting a public road, leaves some property, while constructing a compound wall and ultimately the said property became part and parcel of the public road used by all in common? In such contingency, it has to be inferred that the person, who left property outside the compound wall abutting the road in existence impliedly or deemed to have surrendered the said portion of the property also as public road for his convenience and for the public at large. If so, it is held that the existing road, as reported as per Ext.C1 series, where the learned Additional District Judge granted decree, is to be treated as a public road for all practical purposes. Therefore, the decree of prohibitory injunction granted by the appellate court confining the existing road as per Ext.C1 series deeming the same as public road is only to be justified. 21. However, the first question as to whether the appellate court went wrong in granting mandatory injunction to remove the fence constructed in the C schedule property even without a prayer for the same, despite lack of pleadings, required to be considered. In this connection, I have perused the plaint averments. It is decipherable that no pleadings necessary for grant of mandatory injunction pleaded and the relief of mandatory injunction also not sought for therein. It is the fundamental principles of civil law that relief sought for must be pleaded, so as to alert the other side to defend the same in accordance with law. On denial of the said plea by the other side, naturally, an issue would arise and both the parties must be given an opportunity to adduce evidence. Order 7 of C.P.C deals with particulars to be contained in plaint and Order 7 Rule 1(g) specifically mandates that the relief which the plaintiff claims shall be asked for. On denial of the said plea by the other side, naturally, an issue would arise and both the parties must be given an opportunity to adduce evidence. Order 7 of C.P.C deals with particulars to be contained in plaint and Order 7 Rule 1(g) specifically mandates that the relief which the plaintiff claims shall be asked for. Further, Order 7 Rule 7 mandates that the relief to be specifically stated and it has been provided that every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative. It has been provided further that it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. Further Order 7 Rule 8 provides that where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, they shall be stated as far as may be separately and distinctly. 22. On perusal of the appellate judgment, the Additional District Judge granted the relief of mandatory injunction invoking the power of the appellate court as provided under Order 41 Rule 33 of C.P.C on the finding that the obstruction was made in C schedule road during the pendency of the suit and the Munsiff Court failed to consider the interim mandatory injunction petition filed by the plaintiff as I.A.No.2102/2016, though it was closed on the date of passing the decree by the trial court. 23. The normal rule is that every relief should be sought with support of specific pleadings. Further the said relief must be valued and required court fee also shall be paid. However, one exception, in the form of discretion, to be read out from Order 7 Rule 7 is that it shall not be necessary to ask for general or other relief which may always be given as the court may think just to the same extent as if it had been asked for. Thus it appears that court is not powerless to grant general or other relief as the court think just in the facts of a given case, though the same was not asked for and the legislative intent is by giving a discretion to the court in this regard. Thus it appears that court is not powerless to grant general or other relief as the court think just in the facts of a given case, though the same was not asked for and the legislative intent is by giving a discretion to the court in this regard. Similarly, as provided under Order 41 Rule 33, the appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. Thus the appellate court also can grant the reliefs which can be granted by the trial court and the appellate court is empowered to pass and make such further or other decree or order as the case may require. No doubt, the discretion available to the trial court as well as the appellate court to grant general or other relief which the Court may think fit shall not be used in a routine manner and the said right to be used very rarely and sparingly as an exception in an appropriate case to meet the ends of justice for valid reason to be recorded. The said power of the Court is known with nomenclature that the power to ‘mould reliefs'. In the decision reported in [ (2002) 2 SCC 256 ], Om Prakash Gupta v. Ranbir B.Goyal, the Apex Court laid down the circumstances under which the court could mould the reliefs as under: “11. The said power of the Court is known with nomenclature that the power to ‘mould reliefs'. In the decision reported in [ (2002) 2 SCC 256 ], Om Prakash Gupta v. Ranbir B.Goyal, the Apex Court laid down the circumstances under which the court could mould the reliefs as under: “11. The ordinary rule or civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise.” 24. In a latest decision of the Apex Court in Civil Appeal No.2928/2014, Shivanna & Ors. v. B.S.Puttamadaiah (Dead) through LR, rendered on 8th November, 2023, the Apex Court reiterated the principles and held that it is well settled in law that the principle of moulding the reliefs could at best to be applied as an exception to meet the contingencies dealt in Om Prakash Gupta v. Ranbir B.Goyal (supra) and not otherwise. Therefore, the power of the Courts to mould reliefs, that is, to grant reliefs which are not prayed for, is available when the contingencies discussed in Om Prakash Gupta v. Ranbir B.Goyal (supra) are made out. 25. Therefore, the power of the Courts to mould reliefs, that is, to grant reliefs which are not prayed for, is available when the contingencies discussed in Om Prakash Gupta v. Ranbir B.Goyal (supra) are made out. 25. The procedure being followed is that when one among the parties to a suit does anything to alter the position of the subject matter of the suit, on the date of the suit or when an order of interim injunction or status quo is in force, the court should have to undo the same by placing the subject matter on the date of the suit or at the stage of passing the interim order, usually call it as reverting the subject matter to status quo ante (the situation as it existed earlier) on the date of filing the suit. As a right, such order could not be passed to order status quo ante prior to the date of filing of the suit, since, in such cases, the suit should have been filed asking the said relief as the main relief. 26. In the present case, at the time of filing the suit there was no obstruction to the C schedule road and the obstruction was made during the pendency of the suit. If so, the court has a duty to put the road to its condition as on the date of filing the suit or on the date of the interim order by ordering status quo ante and for this purpose, the court is having ample power to mould the relief in view of the discretion granted under Order 7 Rule 7. When the court is the appellate court, the said power to mould relief can be exercised along with the power under Section 41 Rule 33. If so, in the facts of the given case discussed in detail herein above, there is no reason to hold that the Additional District Court went wrong in granting mandatory injunction practically by ordering status quo ante, by exercising the power to mould the relief though it has not been specifically stated by the Additional District Judge. 27. If so, in the facts of the given case discussed in detail herein above, there is no reason to hold that the Additional District Court went wrong in granting mandatory injunction practically by ordering status quo ante, by exercising the power to mould the relief though it has not been specifically stated by the Additional District Judge. 27. In view of the above discussion, it is held that none of the contentions raised by the learned counsel for the defendants to non suit the plaintiff would sustain and as a sequel thereof, the verdict of the first appellate court modifying the verdict of the trial court is only to be upheld. 28. In the result, this appeal is found to be meritless and is dismissed accordingly. 29. Considering the nature of the case, both the parties shall suffer their respective costs. All interlocutory orders stand vacated and all interlocutory applications pending in the Second Appeal stand dismissed.