UNNIKRISHNAN Vs. PONNU AMMAL

JUDGEMENT

(1.) Since the parties were the same, this Second Appeal was heard along with S.A. 397 of 1989. But considering the nature of the questions involved in the two Second Appeals, I think it appropriate to pronounce separate judgments in the two Second Appeals.

(2.) The second plaintiff is the appellant in this Second Appeal. He is the son of plaintiff No. 1 in the suit, who died pending the litigation. The suit by the plaintiffs was one for a mandatory injunction directing the defendants to restore the plaint C Schedule pathway that allegedly existed in the South-western portion of the defendants' property and for a perpetual injunction restraining the defendants from interfering with the user of that pathway. Plaint C Schedule, the disputed portion of the pathway, has been marked by the Commissioner in Ext. C3 plan as BC. The right of way was claimed by the plaintiffs by way of an easement by prescription. In the plaint, there was no prayer for declaration of the right of way of the plaintiffs by way of prescription. The prayer in the plaint was only for a mandatory injunction directing the defendants to restore the portion of the way blocked by them to its original condition and for compensation for damages caused to the plaintiffs by the blocking. A prayer for a prohibitory injunction restraining interference with the user of the way by the plaintiffs, was also claimed. The defendants denied that the plaintiffs have any right by way of prescription over the alleged plaint C schedule pathway. The defendants thus challenged the entitlement of the plaintiffs to relief. The Trial Court held that the second plaintiff had title to A and B schedule properties, that there was a pathway as described in plaint C schedule, that the said pathway was being used by the plaintiffs and the plaintiffs have established a right by way of an easement by prescription by showing uninterrupted user for more than 35 years, that in view of the act and conduct of the defendants, the plaintiffs had a cause of action. The Trial Court granted the plaintiffs the relief of mandatory injunction directing the defendants to remove the obstructions in plaint C Schedule pathway and restraining the defendants from causing any obstruction to the plaint C schedule pathway and from changing its physical features. A sum of Rs. 600/- was also awarded as damages. The defendants went up in appeal. The lower appellate court in its judgment dated 28-11-1986 held that the plaintiff had not made out a right by way of prescription over the pathway described as plaint C schedule. Therefore, the plaintiffs were not entitled to relief. Reversing the decree of the Trial Court, the lower appellate court dismissed the suit. The plaintiffs filed S.A. 279 of .1987 before this court challenging the decision of the lower appellate court. This Court held that the lower appellate court had failed to consider the oral evidence of the witnesses examined on the side of the plaintiffs and the non consideration of the evidence of the two witnesses examined on the side of the plaintiffs has rendered the judgment of the lower appellate court unsustainable. This Court therefore, set aside the judgment and decree of the lower appellate court and remanded the appeal to the lower appellate court for a fresh disposal in accordance with law and in the light of the observations contained in the judgment of this court. Thereafter, the lower appellate court reconsidered the appeal filed by the plaintiffs. The appellate court held that the plaintiffs had established that the disputed pathway was being used by the plaintiffs for ingress into and egress from their property and for taking their cattle. It is not seen that the appellate court has rendered a finding that the user was for more than 20 years and that it was as of right, but it may be possible to infer such a finding from the fact that the lower appellate court accepted the evidence of PWs 2 and 3, including their evidence that the pathway was in existence for 35 years. But the lower appellate court denied relief to the plaintiffs on the ground that the plaintiffs have not made a prayer in the plaint for a declaration of their right by way of prescription and had merely sued for injunction. The appellate court relied on the decision of the Karnataka High Court in D. Ramanatha v. S. Razaack (AIR 1982 Karnataka 314) in support. Thus, the appellate court refused to interfere with the dismissal of the suit by the Trial Court and dismissed the appeal. This is what is challenged before me by the second plaintiff.

(3.) Learned counsel for the plaintiff - appellant submitted that a suit for injunction without a prayer for declaration is maintainable. Counsel relied on the decision in Krishna Pillai v. Kunju Pillai ( 1990 (1) KLT 136 ) wherein the correctness of the decision in Ramanatha v. S. Razaack (AIR 1982 Karnataka 314) was doubted. Counsel for the defendants in addition to relying on the decision in Ramanatha v. S. Razaack (AIR 1982 Karnataka 314) also relied on the decision of the High Court of Calcutta in Siti Kanta Pal v. Radha Gobinda Sen ( AIR 1929 Cal. 542 ) referred to and followed in the decision of the Karnataka High Court. It was submitted that the view adopted by the lower appellate court is correct.