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2024 DIGILAW 342 (KER)

George Peter (Died) v. Thilothama Karthekeyan W/o Karthikeyan

2024-03-14

A.BADHARUDEEN

body2024
JUDGMENT : A. BADHARUDEEN, J. 1. Sole defendant in O.S. No. 1458/2004 on the files of the Additional Munsiff’s Court-III, Ernakulam, who is aggrieved by the decree and judgment in the above case, as confirmed in A.S. No. 372/2006 on the files of the Additional District Court-I, Ernakulam, has filed this Regular Second Appeal under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure. Plaintiff in the above suit is the respondent herein. 2. Heard the learned Senior Counsel for the appellant/defendant and the learned counsel appearing for the respondent/plaintiff. 3. I shall refer the parties in this appeal as ‘plaintiff’ and ‘defendant’ for convenience. 4. On 23.8.2011, my learned predecessor admitted this appeal by raising the following substantial question of law: Whether interpretation of the width of the way provided under Ext.A2 is sustainable, in the light of the words used? 5. Plaintiff instituted the suit, claiming absolute title over plaint A schedule property and also claiming right over plaint B schedule pathway provided in her title deed, having a width of 10 links. Mandatory injunction also was sought for, to remove the obstruction in plaint B schedule pathway along with relief of prohibitory injunction, restraining its obstruction. 6. Defendant filed written statement and denied the width of plaint B schedule pathway as 10 links, confirming the same to 5 links. 7. The trial court recorded evidence. PW-1 was examined and Exts.A1 to A7 were marked on the side of the plaintiff. DW-1 to DW-5 were examined and Exts.B1 to B6 were marked on the side of the defendant. Finally, the trial court found that the plaintiff is entitled to enjoy the plaint B schedule pathway, having a width of 10 links, as provided in Ext.A2, reiterated in Ext.B2 and decree was granted, accordingly. On appeal, the appellate court also concurred the said finding. 8. While impeaching the concurrent verdicts, the learned Senior counsel appearing for the defendant taken this Court through Exts.A1, B1, B2 and B3 documents as well as Exts.C3 report, C3(a) plan along with Exts.C1 earlier Commission Report and C1(a) rough sketch to read the recitals in Ext.A2, limiting the width of plaint B schedule pathway to 5 links through the southern boundary of the property of Mathachan. According to the learned Senior counsel, the description of plaint B schedule pathway in Ext.A2, is without mentioning its width from east through the southern boundary of the property sold to Mathachan and 10 links width is stated in respect of the way available on the eastern side by name ‘Kannayath IV Lane’. The learned Senior counsel also pointed out the description of the way in Ext.B2, a document executed by Damodaran Nambiar, who is the executant of Ext.A2 title deed, where the width of the way is shown as 5 links. He also pointed out that in the subsequent documents specifically pleaded in the written statement also would show that the width of the way is only 5 links. Therefore, the recitals in Ext.A2 could not be interpreted to hold that the width of plaint B schedule pathway on the northern side of the property of the defendant is 10 links. 9. Whereas, the learned counsel for the plaintiff read out the narration of plaint B schedule pathway in Ext.A2 and zealously argued that the width of the way from ‘east’ as well as ‘north’ is specifically mentioned as 10 links and the plaintiff is entitled for the same. He also pointed out that the executant of Ext.A2 could not unilaterally reduce the width of the way in subsequent documents, since he had no right to do the same, in respect of right he already created. Therefore, the plaintiff is entitled to get prohibitory as well as mandatory injunction granted by the trial court and confirmed by the appellate court. Therefore, the said verdicts only to be confirmed. 10. In the instant case, interpretation of Ext.A2 document is the crucial aspect. Thus, the question poses is; how a document to be interpreted? 11. In the decision in State of Kerala and Others vs. M/s. Joseph and Company, 2021 (6) KHC 295 : 2021 (6) KLT 120 : AIR 2021 SC 4486 , the Apex Court held that, in order to gather the intention of the parties, the nature of transaction and the document as a whole is necessary to be considered, where the Apex Court considered the terms of a lease deed. In as much as interpretation of a document is concerned, when reading the recitals in a title document or any other documents where the nature, length and width of the way in dispute, the plain meaning of the terms necessarily to be understood without addition or deletion and in such cases, there is no scope for any inclusion or exclusion. If there is lack of clarity or ambiguity, the attending circumstances, prior and subsequent documents to be referred to reach an exact finding as to the nature, length and width of the way. Keeping the above principle in mind, when Ext.A2 is perused, it has been narrated so vividly therein that the property covered by Ext.A2 is 4 cents equivalent to 1.62 Ares along with trees and other items therein inclusive of way from ‘east’ and then towards ‘north’ having a width of 10 links, on the eastern side of the property sold to Mathachan. Ext.C3(a) is the plan relied on by the trial court as well as the appellate court to find 10 links width pathway. As per Ext.C3, the plots C, A3, B1 and A2 jointly constitute plaint B schedule pathway, having an extent of 10 links equivalent to 2 meters. 12. Even though the learned counsel for the plaintiff argued that, since the defendant is having more extent of property than described in his title deed and also the right conferred upon the plaintiff as per Ext.A2 could not be restricted, it is discernible that, plot B1 as per Ext.C3(a) is 0.220 cent of property in Sy. No. 162/16 pt and the same is covered by the title deed of the defendant. In this context, it is worthwhile to mention that, as per Ext.A2, 10 links pathway provided from east and towards north. Therefore, the width of the way provided on the southern side of property of Mathachan is certainly 10 links and nothing less. If so, the executant of Ext.A2 could not reduce the way in subsequently executed documents and transfer the same; any such transfer is without having any saleable interest and the same shall not affect the earlier vendee/transferee. As a sequel thereof, the defendant would never get any right over plot B1. 13. It is true that, as pointed out by the learned Senior counsel for the defendant, Sheemakkonna (gliricidia sepium trees) and some obstructions are there in B1 plot. As a sequel thereof, the defendant would never get any right over plot B1. 13. It is true that, as pointed out by the learned Senior counsel for the defendant, Sheemakkonna (gliricidia sepium trees) and some obstructions are there in B1 plot. Since there was obstruction, the plaintiff sought the relief of mandatory injunction to remove the same. Therefore, the obstructions pointed out in Ext.C1 series also could not yield to the benefit of the defendant. 14. Over all evaluation of the evidence available, it could be gathered that plaintiff obtained right of way, having a width of 10 links through out and the same is located as C, A3, B1 and A2 plots. If so, the plaintiff, who obtained right over plaint B schedule pathway, having a width of 10 links, is entitled to enjoy the same and for which, prohibitory as well as mandatory injunctions are liable to be granted. Therefore, the prohibitory as well as mandatory injunction granted by the trial court and confirmed by the appellate court do not require any interference. Accordingly, the substantial question of law is answered, holding that the interpretation of the width of plaint B schedule pathway provided under Ext.A2 is 10 links and not 5 links. 15. In the result, this Regular Second Appeal stands dismissed. There is no order as to costs. 16. All interlocutory orders stand vacated and all interlocutory applications pending in this second appeal, stand dismissed. 17. Registry shall inform this matter to the trial court as well as the appellate court, forthwith.