Supreme Court of India
Jayanandan vs Suresh Kumar on 2 December, 2024
2024 INSC 956
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2024
(Arising out of SLP (Civil) No. of 2024
arising out of Diary No.2098 of 2020)
JAYANANDAN & ANOTHER … APPELLANTS
VERSUS
SURESH KUMAR & ANOTHER … RESPONDENTS
ORDER
NAGARATHNA, J.
1. Application for permission to file the petition is allowed.
Delay in filing the applications for substitution and setting-
aside abatement is condoned.
Applications for substitution and setting-aside abatement
are allowed.
Leave granted.
2.
Signature Not Verified Being aggrieved by the judgment of the Kerala High Court
Digitally signed by
RADHA SHARMA
Date: 2024.12.10
passed in R.S.A. No.1432/2011 dated 01.10.2019 by which the
17:37:04 IST
Reason:
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judgment passed by the First Appellate Court in A.S.
No.69/2010 dated 30.11.2011 was partly sustained, the
appellants-plaintiffs have preferred this appeal.
3. It is stated that in 2004, by virtue of Sale Deed
No.3363/2004, the original plaintiffs, who were husband and
wife, got title and possession over the suit property being Sy. No.
258/3 (Re. Sy. O. 293/14) and the shops AP x 460, 461 etc in
Athiyanoor village, Kamukincode P.O Kodangavila, District
Trivandrum in State of Kerala, and have been in absolute
possession since then.
4. The suit property is bounded by specific boundaries on all
four sides of and, pertinently, the defendants’ property is
immediately to the north of the suit property.
5. The present controversy finds its origins in the defendants’
act to cut and remove six jack fruit trees on 02.05.2007 on the
western side of the suit property with the object of, according to
the plaintiffs, creating a new pathway through the suit property.
Per contra, according to the defendants, this was done only to
widen an existing pathway. It was submitted that again on
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20.05.2007, the defendants, to the same end, attempted to cut
and remove the coconut trees standing on suit property.
6. Aggrieved by this overt act of the Respondents, the
Appellants filed the suit bearing O.S. No. 389 of 2007 on the file
of the Addl. Munsiff Court-1, Neyyattinkara(“Trial Court”)
seeking permanent prohibitory injunction restraining the
defendants from trespassing into the suit property and from
constructing a pathway through the suit property by cutting and
removing the trees standing therein or from committing any acts
of waste in the suit property etc. Furthermore, the plaintiff
sought damages amounting to Rs. 10,000/- i.e. and for putting
up a boundary wall on the Northern boundary of suit property,
etc.
7. The Trial Court appointed an Advocate Commissioner to
submit a report on the status and description of the suit
property. On 27.07.2009, the report of the Advocate
Commissioner and Survey Plan was submitted. Therein, it was
reported that there indeed is a way through the western side of
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the suit property towards defendant’s property and there is no
alternate way available to the defendants than the aforesaid way.
8. Considering the pleadings, issues framed and evidence
presented before it, the Trial Court on 07.12.2009 decreed the
suit and restrained the defendants from trespassing into the suit
property and from constructing a pathway through it by cutting
and removing the coconut trees standing therein and from
committing any act of waste therein and from interfering with
the plaintiffs peaceful possession and enjoyment of the suit
property while also allowing the plaintiffs to put up a compound
wall along with existing Northern boundary on the ‘GY line’ as
was placed before it in the Survey Plan. Though the Trial Court
made a reference to a way through the western side of the suit
property towards the land of the defendants, it decreed the suit
on the ground that the defendants had not claimed any special
right over the pathway. The trial qua Defendant No. 2 was ex-
parte, as were the proceedings before the First Appellate Court
which are discussed hereunder.
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9. Aggrieved by this decision of the Trial Court, the defendants
challenged the decree in first appeal bearing number A.S. No.
69/2010 before the Sub-Court, Neyyattinkara (“First Appellate
Court”). Notably, before the First Appellate Court, the defendants
filed I.A. No. 2375 of 2010 for amending the written statement
under Order VI Rule 17 of Code of Civil Procedure, 1908 (“CPC”).
It was contended before us that by way of this amendment
application, the defendants intended to incorporate a new claim
of prescriptive right of easement over the way in existence
reported by the Advocate Commissioner.
10. An objection raised by plaintiffs against I.A. No. 2375 of
2010 was ultimately rejected by the First Appellate Court and
the amendment application was allowed on 30.11.2011. On the
very same day i.e. 30.11.2011, the First Appellate Court allowed
the appeal and, consequently, reversed the decree. It is the case
of the Appellants herein that the First Appellate Court erred in
dismissing the suit without there being any evidence on the basis
of the new averments raised in the amendment application.
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11. Soon thereafter, aggrieved by the decision of the First
Appellate Court, the plaintiffs preferred regular second appeal in
RSA No.1432 of 2011 in the High Court of Kerala at Ernakulam.
During the pendency of the regular second appeal, due to the
passing away of second plaintiff i.e. the wife, the daughter of
plaintiffs was substituted as a party on 03.07.2018. Vide
Impugned judgment dated October 1st, 2019, the High Court
partly allowed the appeal by allowing the construction of
boundary wall along the northern end of the suit property.
However, the High Court found no reason to interfere with the
finding of the First Appellate Court on the prescriptive
easementary right over the way towards the property of the
defendants.
12. As noted above, the Trial Court decreed the suit filed by the
plaintiffs herein. Being aggrieved, the respondents-defendants
preferred A.S. No.69/2010 before the Court of the Sub-Judge,
Neyyattinkara (First Appellate Court). During the pendency of
the said appeal, an application was filed under Order VI Rule 17
of the CPC seeking amendment of the Written Statement. On
30.11.2011, the said application was allowed and the first
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defendant was permitted to amend the Written Statement.
Interestingly, on the very same day i.e. on 30.11.2011, on the
basis of what was averred in the amended Written Statement,
the appeal, being A.S. No.69/2010 was allowed and the
judgment and decree passed by the Trial Court dated
07.12.2009 in O.S. No.389/2007 was set aside. It is against the
said judgment of the First Appellate Court that the appellants
herein preferred R.S.A. No.1432/2011 which has been allowed
in part. Hence, this appeal.
13. We have heard learned senior counsel for the appellants
and learned counsel for the respondents and perused the
material on record.
14. Although several arguments were advanced at the bar, we
have considered only one argument made by the learned senior
counsel for the appellants being the permission granted by the
First Appellate Court to seek amendment of the Written
Statement in A.S. No.69/2010. On such Written Statement
being permitted to be amended there was no further
consideration of the matter inasmuch as the impact of the
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amendment of the Written Statement on the merits of the case
was not considered. This is so as on the very day the amendment
of the written statement was allowed the First Appellate Court
also disposed of the appeal by setting aside the judgment and
decree of the Trial Court. There was no reasoning given as to
why in the absence of any further evidence being recorded by
the First Appellate Court on the basis of the amended Written
Statement, the judgment and decree of the Trial Court could be
set aside. We find that an opportunity had to be given to both
sides to let in evidence on the amended Written Statement as,
in sum and substance, the first defendant by the said
amendment had in a way sought a counter claim by averring
that the first defendant had the right to the pathway by way of
a easementary right and had been using it so for over fifty years.
It may be that there is a reference to a pathway in the judgment
and decree of the Trial Court but the fact remains that there was
a decree granted by the Trial Court which could not have been
set aside merely because there was an amendment to the
Written Statement made by the first defendant and in the
absence of any evidence being let in support of the claim made
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by the respondent herein on the basis of the Written Statement
being amended.
15. In our view, the amendment to the Written Statement
called for recoding of evidence particularly on behalf of the first
defendant herein in order to prove his claim and contra evidence,
if any, on behalf of the appellants-plaintiffs herein.
16. We find that any averment made in a plaint or Written
Statement must be supported by evidence. In the absence of
there being any evidence, the First Appellate Court could not
have implied that there was already evidence in regard to what
has been stated in the Written Statement without recording any
evidence in support of the amended pleading.
17. In the circumstances, we set aside the impugned judgment
and decree of the High Court passed in R.S.A. No.1432/2011 as
well as the judgment and decree dated 30.11.2011 in
A.S.No.69/2010; the matter is remanded to the First Appellate
Court to reconsider A.S. No.69/2010 in view of the amendment
made to the Written Statement and to pass an order as to
whether a further recording of evidence is required on the basis
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of the said amendment and to proceed to dispose the appeal in
accordance with law.
The appeal is allowed and disposed of in the aforesaid
terms. No costs.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . J.
[B.V. NAGARATHNA]
. . . . . . . . . . . . . . . . . . . . . . . . . . . . J.
[NONGMEIKAPAM KOTISWAR SINGH]
NEW DELHI;
DECEMBER 02, 2024
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