RAMANUNNY VAIDYAR Vs. GOVINDAN KUTTY NAIR

JUDGEMENT

(1.) The defendant is the appellant. The defendant is the owner of the property lying to the south of the lane. The plaintiffs are the owners of the property lying to the north of the lane. To the west and north of the property of the plaintiffs there are lanes. There is an old house situate in the property of the plaintiffs facing towards the west and having access to the lane on the west going from north to south. A flight of steps from the property of the plaintiffs to that lane establishes that this was their access to their property. The plaintiff constructed a new building on the eastern portion of their property. They claim that they took loaded vehicles to the property from the eastern road through the lane lying in between the properties of the plaintiffs and the defendant and had expended monies for raising the level of that lane. The plaintiffs approached the court praying for the permanent injunction restraining the defendant from altering the nature and lie of the lane and restraining him from preventing the taking of vehicles to the property of the plaintiffs through the lane. The plaintiffs pleaded that the defendant was attempting to construct the wall to the north of his property by encroaching into the lane and seeking to reduce its width with a view to prevent the plaintiffs from taking vehicles from the road on the east of their property lying to the north of the lane and towards the west. The defendant resisted the suit by contending that when the plaintiffs wanted to construct a new building in their property, they were permitted to take loaded vehicles through the lane to transport materials for the construction as a matter of concession, on the understanding that the land would be restored to its original width and position, once the construction was over, that the plaintiffs were resiling from that position and the plaintiffs had no right to seek any injunction in respect of the lane or to claim that they have got a right to take vehicles through the lane. The plaintiffs sought an interim injunction pending suit restraining the defendant from constructing a compound wall on the northern side of their property. Though they obtained an order of interim injunction from the Trial Court, the injunction was vacated in appeal and according to the plaintiffs, the defendant constructed a wall to the north of his property and in that process, reduced the width of the lane. On that basis, the plaintiff got the plaint amended and incorporated a prayer for a mandatory injunction directing the defendant to remove the wall and to restore the land to its original width.

(2.) In the Trial Court, Exts. Al to A7 were marked on the side of the plaintiffs and PWs. 1 to 7 were examined. Exts. B1 to B5 were marked on the side of the defendant and DWs 1 to 3 were examined. The Commissioner's reports and plans were marked as Exts. Cl to C4. The file from the Koyilandy Municipality was got produced and marked as Ext. X1. On this evidence, the Trial Court dismissed the suit holding that the plaintiffs have not established any right over the lane and hence they were not entitled to the injunction sought for. The plaintiffs filed an appeal. The lower appellate court reversed the decree of the Trial Court and granted the plaintiffs a decree for mandatory injunction directing the defendant to demolish the compound wall for a specified length, indicated as the portion AB in Ext. C4 plan. Feeling aggrieved, the defendant has come up with this Second Appeal.

(3.) It was contended on behalf of the defendant that the plaintiffs have not established any right over the lane which would entitle them to decree for injunction either prohibitory or mandatory as against the defendant. It was contended that the plaintiffs were only the owners of a property lying to the north of the lane in question and they have not established any right over the lane which would entitle them to a decree. Counsel for the plaintiffs countered by submitting that the plaintiffs have been using the lane, right from the time of the purchase of the northern property in the year 1979 and since the action of the defendant reducing the width of the lane was illegal and unauthorised, the plaintiffs would be entitled to a decree for injunction and the circumstances of the case justify the decree for injunction passed by the lower appellate Court.