ALLIED HOSPITAL (P) LTD v. & 2 ND

V. RAMKUMAR, J.* * * * * * * * * * * * * * * * * *F.A.O. 110 of 2003* * * * * * * * * * * * * * * * * * Dated: 23rd May, 2009JUDGMENTThe first defendant in O.S. 740 of 1995 on the file of theMunsiff's Court, Chavakkad is the appellant. The said suitinstituted by the first respondent herein is one for a declarationthat the act of the first defendant/appellant in constructing a wallat the entrance of the pathway in dispute and thereby closing thesame preventing access to the plaintiff Church namely, Arthat St.Mary's Simhasana Church was illegal and for a mandatoryinjunction directing the first defendant to remove the newlyconstructed wall and for a prohibitory injunction restraining thefirst defendant from obstructing the disputed pathway.2.The case of the first respondent/plaintiff can besummarised as follows:-The plaint schedule Church compound including the ArthatSimhasana Church building absolutely belongs to the plaintiffChurch the Church and its cemetery are situated in the plaintschedule property. To the south of the Church compound, there isan ancient pathway running west to east parallel to the southern F.A.O. 110 of 2003-:2:-boundary of the plaint schedule property providing entry into thecemetery which is situated towards east of the church compound.The said pathway is passing through the purambokku propertyvested in the Arthat Panchayath. The pathway starts from theGuruvayoor-Kunnamkulam main road running north-south alongthe western boundary of the plaint schedule property. The firstdefendant who has property to the south of the plaint scheduleproperty and who is running a hospital by name Allied Hospitalhas constructed a compound wall along the western boundary ofthe first defendant's property in such a way as to obstruct theaccess to the public pathway referred to above. Hence, the suit.2.The suit was resisted by the first defendant contendinginter alia as follows:- The suit is not maintainable and the plaintiff has no cause ofaction. The property to the south of the plaint schedule propertywas the property of one David. The said property was purchasedby this defendant about 4 years back. There is no purambokkuland or a pathway in the said property purchased by this defendant,as alleged by the plaintiffs. There is no pathway on the southernside of the plaint schedule property. Along the western boundaryof the property purchased by this defendant from David there is acompound wall which is about 25 years old. The said compoundwall has been constructed in continuation of the western boundarywall of the plaint schedule property. This defendant has not putup any compound wall on the western side after this defendant F.A.O. 110 of 2003-:3:-purchased the property from David referred to above. There werecertain kudikidappucars of David in the property purchased by thisdefendant and a way had been provided for them through thenorthern side of this defendant's property. But after the cominginto force of the Kerala Land Reforms Act, the kudikidappukarswere shifted to the southern side of the property and thereafterthere was no pathway retained or used for the aforesaid purpose.The plaintiff had no right of way through this defendants'property formerly and there was no entry into the cemetery fromthat way. There is a tarred road along the northern boundary of theplaint schedule property and having access to the cemetery.Mention about the pathway along the northern boundary of theproperty of this defendant in the title deed came to be made as itwas carried forward from the anterior title deed. For the past 25years the said pathway is not in existence. This defendant hasconstructed a compound wall along the northern boundary of thisdefendant's property. It is the said construction which hasprovoked the plaintiff to institute the present suit. The suit iswithout any bona fides and liable to be dismissed with costs. 3.The 2nd defendant Arthat Grama Panchayath filed awritten statement contending as follows:-On the southern side of the plaintiff's property, there is apurambokku which belongs to this Panchayath. The firstdefendant informed the Panchayath about the construction of acompound wall and this defendant permitted construction F.A.O. 110 of 2003-:4:-excluding the purambokku.4. The Trial Court framed 7 issues for trial. On the sideof the plaintiff, two witnesses were examined as P.Ws 1 and 2 and10 documents were got marked as Exts.A1 to A10. On the side ofthe defendants, two witnesses were examined as Dws 1 and 2 andExts.B1 and B2 were marked. The Advocate Commissionersdeputed by the trial court filed Exts.C1 and C3 reports and Ext.C2plan and Exts. C4 report and C5 plan.5.The learned Munsiff, after trial, as per judgment dated27-1-1999 dismissed the suit holding that the evidence disclosedthat the western boundary wall of the southern property of the firstdefendant was constructed more than 15 years ago, that theplaintiff had failed to prove any user as of right of the allegedpathway passing through the defendants' property situated outsidethe plaint schedule property so as to reach the cemetery, that theevidence showed that the dead bodies were brought into theChurch through the wide gate provided for the church compound(plaint schedule property) from the Guruvayoor-Kunnamkulammain road and the dead bodies after the funeral obsequies weretaken to the cemetery from the church compound directly, thatalong the northern boundary of the plaint schedule property there isthe Mar Osthathios road which is a tarred road from which there isa direct access into the cemetery immediately after the churchcompound, that the plaintiff cannot claim any right over thesouthern property of the first defendant for having access to the F.A.O. 110 of 2003-:5:-cemetery situated towards the eastern side of the church compoundand that the alleged pathway over which the plaintiff claimed rightof user was not described giving material particulars in the plaintnor was it scheduled to the plaint as required by Order VII Rule 3C.P.C.6.Aggrieved by the judgment and decree dated 27-1-1999passed by the plaintiff filed an appeal as A.S. No. 188/1999 beforethe District Court, Thrissur. As per judgment dated 17-7-2003,the I Addl. District Judge set aside the judgment and decree passedby the trial court and remanded the case to the trial court for freshdisposal after giving the plaintiff an opportunity to amend theplaint so as to give full particulars regarding the pathway in respectof which relief was claimed. Hence, this appeal filed under OrderXLIII Rule 1 (u) C.P.C. by the first defendant.7.Since this appeal is virtually a Second Appeal, in thelight of the decision of the Apex Court in Narayanan v.Kumaran – 2004 (4) SCC 26, the Memorandum of Appeal oughtto have formulated substantial questions of law in terms of Sec.100 C.P.C. This Appeal will lie only on such substantialquestions of law, formulated in the memorandum of appeal. But,then, there is no express provision in the C.P.C., obliging theappellant in an appeal under Order XLIII Rule 1 (u) C.P.C. toformulate substantial questions of law in the memorandum ofAppeal. It was only on 16-3-2004 that the Apex Court ruled thatsuch substantial questions of law should be formulated in the F.A.O. 110 of 2003-:6:-memorandum of appeal. Hence, the appellant cannot be foundfault with for not formulating any substantial question of law.From the facts and circumstances of the case, the followingsubstantial question of law arises for consideration in thisAppeal:-“When, inspite of the specific plea taken by the firstdefendant in the written statement that the plaintiff hadfailed to give particulars of the alleged pathway asenjoined by Order VII Rule 3 C.P.C., no attempt wasmade by the plaintiff to amend the plaint and the partieswent for trial knowing fully well that the right which wasclaimed was a right of user over the pathway allegedlypassing through the southern property of the firstdefendant, was the lower appellate court justified insetting aside the decree passed by the trial court andremanding the case to that court for the sole purpose ofgiving the plaintiff an opportunity to comply with OrderVII Rule 3 C.P.C. “ ?8.Apart from the oral evidence in the case, or the threeCommission reports filed in the case conclusively showed that thewestern boundary wall of the southern property of the firstdefendant was constructed more than 15 years old. If, so, the caseof the plaintiff that the first defendant recently obstructed theplaintiff in using the alleged pathway passing through the firstdefendant's property was demonstrably false. The evidence in F.A.O. 110 of 2003-:7:-the case would clearly show that the plaint schedule churchcompound with the cemetery at its rear portion and the southernproperty of the first defendant are lying adjacent on the easternside of the Guruvayoor-Kunnamkulam main road which runsnorth-south. The evidence on record further shows that thechurch compound which opens into the Guruvayoor-Kunnamkulam road has a large gate through which dead bodiesused to be brought into the Church and after the funeral obsequiesthe dead bodies used to be taken to the cemetery directly from thechurch compound itself. There is also the evidence showing thatthe northern boundary of the Church compound is also a road byname Mar Osthathios road from which after the Churchcompound there is a direct access into the cemetery through aconvenient opening in the old compound wall. It is over andabove the said access to the cemetery that the plaintiff wasclaiming a third access to the cemetery through the southernproperty of the first defendant laying a claim over the allegedpathway starting from the Guruvayoor-Kunnamkulam main roadand passing along the southern boundary of the church compoundbut outside the church compound. All those particulars of the saidparthway were not furnished in the plaint. But both parties werevery well aware of the claim made by the plaintiff. That apart,sufficient opportunities also had been given to the plaintiff tocomply with Order VII Rule 3 C.P.C. That had not been done.The lower appellant court was therefore not at all justified in F.A.O. 110 of 2003-:8:-setting aside the judgment and decree passed by the trial courtand remitting the case to the trial court merely for enabling theplaintiff to comply with Order VII Rule 3 C.P.C. In this view ofthe matter, the order of remand passed by the lower appellatecourt is not sustainable. The substantial question of lawformulated as above is answered in the negative. The impugnedjudgment passed by the lower appellate court is set aside and thematter is remitted to the lower appellate court for disposal of theappeal namely, A.S. 188 of 1999 afresh on the merits with theevidence already on record and without a further remand of thecase to the trial court. The appeal shall be disposed ofuninfluenced by the observations and findings in this judgment.The parties shall appear before the lower appellate court on 22-6-2009 without any further notice. The lower appellate court shalldispose of the appeal on the merits expeditiously and at any ratewithin 8 months of receipt of a copy of this judgment. TheRegistry shall re-transmit the lower Court records forthwith.Dated this the 23rd day of May 2009.Sd/-V. RAMKUMAR, (JUDGE)ani. F.A.O. 110 of 2003-:9:-