Kerala High Court · 2006

J.M.JAMES, J.--------------C.M.A. 84/1997------------------DATED THIS THE 14TH DAY OF AUGUST, 2006JUDGMENTThe plaintiff, Chirakkal Kovilakam Devaswam,Kadalayi Sree Krishna Temple, through its ExecutiveOfficer, in O.S.No.518/1990 on the file of the AdditionalMunsiff Court, Kannur, is the appellant. The plaintiff laidthe original suit for a permanent prohibitory injunction,restraining the defendants or their men, from trespassinginto the plaint B schedule Property and doing any acts ofmischief, therein. The defendants filed the joint writtenstatement as well as the additional written statement,denying the contentions raised by the plaintiff. They alsocontended that the first defendant had alreadyconstructed a house as per the permission and approvedplan of Chirakkal Panchayat, and in accordance with allthe building rules, Electric connection was obtained bydrawing the electric line, through plaint B scheduleproperty. The third defendant had completed the C.M.A.84/19972basement for the construction of his house. There isalready a pathway in existence, which is being used bythe defendants 1 and 2, to reach their property from theroad and therefore, prayed to dismiss the suit.2.The Court raised five issues and the partieshad adduced evidence. Accordingly, the plaintiffexamined five witnesses and marked 28 documents. Thedefendants examined two witnesses and marked elevendocuments. Exts. C1 to C4 and Exts. X1 to X6 were alsobrought into evidence. The learned Munsiff, afterappreciating the evidence so adduced, decreed the suit,restraining the defendants or their men from trespassinginto the plaint B schedule property and committing anywaste therein. However, the Court did not allow thecost, as prayed for.3.The defendants approached the PrincipalDistrict Court, Thalassery, with A.S.No.198/1993,challenging the decree and judgment, passed by the trialCourt. The plaintiff filed a memorandum of crossobjection, challenging the decision of the trial Court, in C.M.A.84/19973not awarding the cost of the suit. The learned DistrictJudge, through his judgment dated 4.12.1996, disposedof the appeal and cross objection, as follows:-“The finding of the Court below that therespondent is having title over B scheduleproperty is set aside and that issue is leftopen to be decided in an appropriateproceedings. The finding of the Court belowthat the respondent has proved theirpossession over the plaint B scheduleproperty is confirmed. But the decree andjudgment passed by the Court below is setaside and the suit is remanded to the trialCourt for the limited purpose ofreconsidering the right of way, claimed bythe appellants over the plaint B scheduleproperty. In case the appellants pay ordeposit an amount of Rs.2,500/-, within onemonth from the date of appearance in theCourt below, the Court below will grant anopportunity to the appellants to amend theirpleadings and in case the amendment isallowed, the Court below also afford a briefand reasonable opportunity to both sides, toadduce fresh evidence.”4.The above order of remand is under challengethrough this C.M.Appeal, by the plaintiff, Devaswom.5.When the appeal came up before this Court,and after hearing the learned counsel at length, it was C.M.A.84/19974suggested to have the same referred to the Adalath.Accordingly, the matter was considered for settlement, atthe Pre-Adalath, on 17.11.2005. The mediators had senta report, stating that the matter could not be settled.6.Nevertheless, I had directed the parties toappear before me and the matter was negotiated. After anumber of sittings in the presence of the parties andtheir respective counsel, together with theCommissioner, H.R & C.E, Kozhikode,Mr.Narayanankutty and the Executive Officer, ChirakkalKovilakam Devaswam, Mr.Prabhakaran, a consensushad been brought about. Accordingly, it was resolved togive a pathway on the western side of the plaint Bschedule property, so that the respondents 1 and 2 shallhave access to their house and also they will be able toply a Maruthy car, which they own. Though initiallythere was lack of consensus regarding the width of thepathway, I had directed the parties and their counsel togo to the spot and to measure out the area actuallyrequired for the plying of a Maruthy car, taking into C.M.A.84/19975account that there is a well situated on the corner of theproperty of defendants 1 and 2. Mr. Mohan C. Menon,the counsel appearing for the commissioner, H.R. & C.E,Kozhikode, Mr. P.N. Ravindran, the counsel for therespondents 1 and 2, Mr,T.A.Ramadasan, advocateappearing for the appellant, along withM/s.Narayanankutty and Prabhakaran, have carved out apathway in full and final settlement of the matterbetween the parties. Accordingly, it was resolved togive a pathway along the western side of the plaint Bschedule property, so that they will have access from theadjacent road to the property of the defendants 1 and 2and also could use a Maruthy car.7.As directed by this Court, with the help of thelocal Village Officer, the parties went to the plaint Bschedule property as well as the property of thedefendants 1and 2. They had measured out an areaextending to 0.250 cents with the actual measurement onall sides, touching from the Railway Station-Ambalamroad, through the plaint B schedule property, to the C.M.A.84/19976property of the defendants 1 and 2. A plan, as per thelinks measurements as well as in feet measurements,were furnished. The pathway to be used by thedefendants 1 and 2 are marked with blue colour and theproperties belonging to the plaintiffs are marked in pinkcolour.8.Meanwhile I.A.No.2040/2006 was filed by the'ValiaRaja' of Chirakkal Kovilakam and the hereditarytrustee of Chirakkal Kovilakam Devaswom that he maybe impleaded in the appeal. As per the order dated7.8.2006, I have dismissed his impleading application.9.I have heard all concerned in this appeal. Asplaintiff and defendants 1 and 2 had fully and finallysettled the matter, resolving the disputes between theparties, the former giving a pathway as discussed above,extending to ¼ cents in accordance with the planappended herewith, for the ingress and egress ofdefendants 1 and 2, as well as for all those who arerelated, connected or permitted by them to their house, Idispose of this appeal as follows:- C.M.A.84/19977(i).The judgment dated 4.12.1996 of the PrincipalDistrict Court, Thalassery, in A.S.No.198/1993 and thememorandum of cross objection therein are set aside.(ii).The decree and judgment dated 16.4.1993 inO.S.No. 518/1990, are modified to the effect that theplaintiff shall assign ¼ cents of property, as per the planappended herewith, in favour of defendants 1 and 2.The defendants 1 and 2 shall pay value of the said land,so fixed by the commissioner of H.R & C.E, Kozhikode,who shall take appropriate steps, as per the HinduReligious and Charitable Endowments Act, to assign thesaid ¼ cent of property for the use of the defendants 1and 2, and all others connected or related with them, onreceiving the value of the said land.(iii).The proceedings now initiated by thecommissioner H.R & C.E, Kozhikode, under Section 29of the Hindu Religious and Charitable Endowments Act,shall be continued and the same shall be completed asper this judgment, completing the formalities, as earlyas possible, so that a final decision, to assign the ¼ C.M.A.84/19978cent to defendants 1 and 2, shall be taken without muchdelay.(iv).The plan submitted, showing the lie of theproperty, including the pathway to be assigned and usedby the defendants 1 and 2, as directed above, containingthe link measurements as well as in feet measurements,shall become part of this judgment and decree of thisC.M.Appeal.(v).In the circumstances of this case, I direct theparties to bear the respective costs of the proceedings,except paying the value of the property extending to ¼cent, to the H.R & C.E Department. J.M.JAMESJUDGEmrcs