Second appeal dismissed limine. The High Court upheld the concurrent finding that a valid right of way exists for the plaintiff's property based on deeds and commissioner's report, rejecting the appellant's contentions regarding acquisition and alternative access.
Second Appeal RSA No. 273 of 2010 dismissed in limine.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE P.BHAVADASAN
WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932
RSA.No. 273 of 2010() -------------------------------AS.187/2006 of I ADDL. DISTRICT COURT, PALAKKAD OS.457/2003 of MUNSIFF COURT, CHITTUR ....................
APPELLANT/APPELLANT/DEFENDANT
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PATHUMMA BEEVI, W/O.MUHAMMED ALI ROWTHER AGED 71 YEARS, RESIDING AT PAPPANKALAM, PUDUNAGARAM AMSOM DESOM, CHITTUR TALUK, PALAKKAD DISTRICT.
BY ADV. SRI.RAJESH SIVARAMANKUTTY
RESPONDENT/RESPONDENT/PLAINTIFF:
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ASSAN MOHAMMED, S/O.SHEIK IBRAHIM ROWTHER, AGED 58 YEARS, RESIDING AT MANJALURKALAM, SATHRAVATTARAM, PUDUNAGARAM AMSOM DESOM, CHITTUR TALUK, PALAKKAD DISTRICT.
BY
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2010,THE COURT ON 14/07/2010 DELIVERED THE FOLLOWING:
rs.
RSA.No. 273 of 2010
ORDER ON I.A. NO.678/2010 IN RSA NO.273/2010
DISMISSED
14/07/2010. SD/- P.BHAVADASAN, JUDGE
//TRUE COPY//
P.S. TO JUDGE
rs.
P. BHAVADASAN, J.
Dated this the 14th day of July, 2010.
JUDGMENT
Faced with the concurrent findings against her and having suffered a decree, the defendant in O.S. 457 of 2003 before the Munsiff's Court, Chittur has come up in appeal. Parties and facts are hereinafter referred to
as they are available before the trial court.
R.S.A.273/2010. 2
schedule property and therefore the assignor granted the right to use her remaining property as a means of access to plaint A schedule property. Such a recital was included in the sale deed itself. The said way is shown as plaint B schedule property. Subsequent purchasers are also entitled to the benefit of the above clause as it is a covenant running with the land. Of late, the defendant is trying to obstruct the use of plaint B schedule pathway by the plaintiff, and if the defendant succeeds in her attempt, the plaintiff will not be able to take his vehicle to plaint A schedule property. The defendant had no right to do so. Hence the suit.
R.S.A.273/2010.
3
schedule is infact a portion of her house and compound and such a way does not exist. Contending that the plaintiff had no manner of right to use any portion of her property, she prayed for a dismissal of the suit.
4
R.S.A.273/2010.
Accordingly, the appeal was dismissed.
R.S.A.273/2010.
5
6
R.S.A.273/2010.
so, it is an easement by grant. It has already been found that the contention of the defendant that the way does not exist cannot be accepted. Moreover, both the courts below found that the commissioner has been able to locate the way and the rough sketch produced by the commissioner marked as Ext.C1(a) shows the location of the pathway. It is true that with regard to a portion of the B schedule pathway, the commissioner has stated that there are no signs of recent taking of vehicles to plaint A schedule. But that by itself is not a ground to negative the claim put forward by the plaintiff. The trial court has extracted the relevant portion in its judgment.
R.S.A.273/2010.
7
P. BHAVADASAN, JUDGE
sb.
3 issues framed by the court
Whether the trial court and district court erred in finding a grant of right of way in the property deeds allowing the plaintiff to use the pathway.
Whether the defendant is entitled to obstruction of the pathway despite the easement by grant.
Whether the existence of a commissioner's report and plan contradicts the claim that the pathway was lost due to acquisition.
PATHUMMA BEEVI
ASSAN MOHAMMED
P. BHAVADASAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
