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Judgment
Thomas P. Joseph, J.—This Second Appeal is brought by the assignee of the 3rd respondent-plaintiff from the judgment and decree of the learned Additional District Judge (Adhoc-II), Ernakulam in A.S. No. 304 of 2009 reversing the judgment and decree of the learned Munsiff, Muvattupuzha in O.S. No. 461 of 2004 and dismissing the same. The 3rd respondent filed the suit against respondents 1 and 2 for a decree for prohibitory injunction to restrain them from trespassing into the plaint A and B schedules, demolishing the boundary walls of the said items or causing obstruction to the 3rd respondent using and enjoying the plaint A and B schedules. According to the 3rd respondent, he acquired the plaint A schedule as per Ext. A1, assignment deed No. 2723 of 2004 and along with that he also acquired a right to pass through the plaint B schedule. Respondents 1 and 2 own properties adjacent to the plaint B schedule. There was a gate on the eastern side of the northern boundary of property of respondents 1 and 2. According to the 3rd respondent, he is entitled to pass through the plaint B schedule which is his only access to the plaint A schedule belonging to him and that was attempted to be obstructed by respondents 1 and 2. Respondents 1 and 2 contended that the 3rd respondent had no right over the plaint B schedule nor was his vendor competent to transfer any right over plaint B schedule to the 3rd respondent as per Ext. A1. Property of respondents 1 to 3 were paddy fields which were put to cultivation until 1980s. There was a thodu in between the paddy filed of respondents 1 and 2 and the 3rd respondent to draw water for agricultural purposes. After the paddy cultivation was stopped in 1980 the parties converted the paddy fields into garden lands. They denied that the 3rd respondent has any right to pass through the plaint B schedule and that the same is the only access to the plaint A schedule.
The trial court on a consideration of Ext. A1 found that the 3rd respondent has no title over the plaint B schedule and that he can only have a right of access through the plaint B schedule. But he is not entitled to object others using the plaint B schedule. Accordingly a decree was granted restraining respondents 1 and 2 trespassing into plaint A schedule, demolishing boundaries of the plaint A and B schedules or causing obstruction to the 3rd respondent using the plaint B schedule and possessing and enjoying the plaint A schedule. 3. Respondents 1 and 2 challenged that judgment and decree in the first appellate court. The first appellate court while concurring with the finding of the trial court that the 3rd respondent has no title over the plaint B schedule or any other right acquired as per Ext. A1, held that originally the plaint B schedule was a thodu and how it was converted into a way is not established. The first appellate court also observed that it is not shown how the 3rd respondent has got right to pass through the plaint B schedule. So holding, the appeal was allowed and suit was dismissed. Hence this Second Appeal.
The following substantial questions of law are framed for a decision:
(i) Whether the lower appellate court is justified in holding that plaintiff can only establish his right to make use of the plaint B schedule property as a pathway only by pleading easement of necessity when the report had already found that Ext. C1, commission report reveals that the plaintiff has no other access except plaint B schedule property to enter the plaint A schedule property and that the defendant has no case that the plaint B schedule property belongs to him and he is the servient owner of plaint B schedule property? (ii) When the defendants had admitted that the plaint B schedule was a water channel for years and they have not staked any claim over the plaint B schedule property and when the specific case of the plaintiff is that by efflux of time the channel became a pathway and the same had been used for as the sole passage to the plaint A schedule property and it is supported by Ext. A1 deed and Ext. C1, commission report and the oral testimony of the plaintiff, is it not sufficient factors to be considered for granting injunction even in the absence of pleadings with regard to easement rights?
The learned counsel for the appellant-assignee under the 3rd respondent contended that findings of the first appellate court are not correct. It is contended that at any rate so far as respondents 1 and 2 have no claim and, there is no proof of title or other exclusive right over the plaint B schedule, they are not entitled to obstruct the 3rd respondent or the appellant claiming under him using the plaint B schedule. The learned counsel has pointed out from Ext. C1 and C1(a) that the 3rd respondent and under him the appellant have no other access to the plaint A schedule. Hence it is prayed that the first appellate court was not right in reversing the judgment and decree of the trial court.
The learned counsel for respondents 1 and 2 contended that the 3rd respondent having no right over the plaint B schedule cannot claim that he has a cause of action against respondents 1 and 2. It is contended that it is not shown that the plaint B schedule is a way. Further contention of the learned counsel is that the report submitted by the Advocate Commissioner as if the 3rd respondent has no other access to plaint A schedule is not correct. Appellant filed I.A. No. 520 of 2012 to receive certain documents in evidence including the document by which plaint A schedule was given to him when the appeal was pending. Along with the counter affidavit respondents 1 and 2 have also produced a document.
There is no dispute that the appellant is an assignee of the plaint A schedule from the 3rd respondent. Hence he is competent to maintain this appeal.
So far as the claim of the 3rd respondent that he has acquired a right over plaint B schedule is concerned, the courts below referring to Ext. A1 and the prior document found against that claim. That finding has become final, nor do I find reason to interfere with the same.
Then the question is whether the 3rd respondent was entitled to any decree for prohibitory injunction as prayed. It is relevant to note that respondents 1 and 2 are not claiming any right over the plaint B schedule. Admittedly, respondents 1 and 2 have no title over the plaint B schedule. Though the learned counsel for respondents 1 and 2 has raised a contention that plaint B schedule is in the possession of respondents 1 and 2, I find myself unable to accept that contention in the light of Exts. C1 and C1(a). For, in Exts. C1 and C1(a), the Advocate Commissioner has reported that there is a well defined boundary wall towards eastern portion of plot ''Y'' shown as belonging to respondents 1 and 2, the oldness of which is noted as 10-11 years. I must also remember that the case put up by respondents 1 and 2 in the written statement is that the properties of respondents 1 to 3 were paddy fields, there was no paddy cultivation after 1980 and thereon parties converted their paddy fields into garden lands. It is also their case that the plaint B schedule was being used for drawing water to the paddy fields. In the circumstances the claim that plaint B schedule is in the possession of respondents 1 and 2 cannot be accepted. 10. The Advocate Commissioner has reported the average width and length of plaint B schedule. It is seen that the plaint A schedule which originally belonged to the 3rd respondent and now belong to the appellant is situated on the southern side. On its south, it is plots D and D1 belonging to others. Plots ''Y'' and ''Z'' are the items shown to be belonged to respondents 1 and 2. It is reported by the Advocate Commissioner that he found a gate at point ''E'' (on the west of the plaint A schedule now belonging to the appellant). The Advocate Commissioner has reported that the portion marked B1 in Ext. C1(a) is useable as a way while the portion marked B2 was found to be covered with bushes. The Advocate Commissioner also found some remnants of a demolished portion at point ''G'' where the plaint B schedule touches the untarred road on the northern side.
Though respondents 1 and 2 have a contention that the 3rd respondent has other access to plaint A schedule, the Advocate Commissioner has reported that he was not able to find any other access to the plaint A schedule.
A document is produced along with the counter affidavit to I.A. No. 520 of 2012 to contend that the 3rd respondent has other access. But the said document was not pressed into service either in the trial or first appellate court and hence having regard to the circumstances stated I do not find justification in receiving the same as additional evidence at this stage.
As things stand, it appears that plaint B schedule was being used by the 3rd respondent. I found that respondents 1 and 2 have not established any right over the plaint B schedule. In that view of the matter, respondents 1 and 2 cannot obstruct the 3rd respondent or claiming under him, the appellant using the plaint B schedule. Nor can respondents 1 and 2 demolish the boundaries of plaint B schedule. In that view of the matter the first appellate court was not justified in altogether setting aside the judgment and decree of the trial court.
But I make it clear that I have not considered the question whether the 3rd respondent and under him the appellant has got any right over plaint B schedule. The relief I propose to grant in this appeal to the appellant is only based on the fact that respondents 1 and 2 have no right to obstruct him from passing through the plaint B schedule. At the same time the appellant also has no right to put up any gate or other structures in the plaint B schedule (if a gate at point ''E'' is there that could remain there until otherwise directed by the competent authority). I also make it clear that I am not deciding upon the right of the 3rd respondent and under him the appellant to pass through plaint B schedule as against any other person interested in the matter. The substantial questions of law framed are answered as above.
The Second Appeal is allowed as under:
(a) Judgment and decree of the learned Additional District Judge (Adhoc-II), Ernakulam in A.S. No. 304 of 2009 are set aside.
(b) O.S. No. 461 of 2004 of the court of learned Munsiff, Muvattupuzha is decreed as under: (i) Respondents 1 and 2 and the men under them are restrained by a decree of prohibitory injunction from trespassing into or interfering with the possession of the appellant in the plaint A schedule.
(ii) Respondents 1 and 2 and the men under them are restrained by a decree of prohibitory injunction from demolishing the existing boundaries of plaint B schedule or in any manner causing obstruction to the appellant (assignee from the 3rd respondent) making use of plaint B schedule for access to plaint A schedule in the manner plaint schedule B schedule as it now permits.
(iii) Appellant shall not put up any structure in the plaint B schedule.
Parties shall suffer their costs throughout.
All pending Interlocutory Applications will stand dismissed.