Second appeal lodged by property purchasers challenging the dismissal of a suit for declaration and injunction against a Panchayat. The High Court upheld lower courts' findings that appellants failed to establish prescriptive easement rights or agreed conditions for accessing the Panchayat's property.
The second appeal was dismissed.
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
MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932
RSA.No. 424 of 2010()
--------------------AS.5/2000 of SUB COURT, OTTAPPALAM OS.95/1999 of MUNSIFF COURT, OTTAPPALAM ....................
APPELLANTS/APPELLANTS:PLAINTIFFS:
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1. T.MUHAMMEDKUTTY, AGED 40 YEARS, BUSINESS, S/O.THENAMOOCHIKKAL VEETTIL MUHAMMED, RESIDING AT KARALMANNA AMSOM AND DESOM IN OTTAPALAM TALUK.
2. JAMEELA, AGED 32 YEARS, W/O.T.MUHAMMEDKUTTY, RESIDING AT DO. DO.
3. ERIPURATH MUHAMMEDKUTTY, AGED 49 YEARS, BUSINESS, S/O.ERIPURATH ALI, RESIDING AT NELLAYA VILLAGE, EZHUVANTHALA AMSOM & DESOM, OTTAPALAM TALUK BY POWER OF ATTORNEY HOLDER M.ALI, AGED 45YEARS, S/O.LATE M.K.HAJI, RESIDING AT KOTTAPPURAM HOUSE, THRIKKADEERI AMSOM, OTTAPALAM TALUK.
BY ADV. SRI.TOM K.THOMAS
RESPONDENT(S): RESPONDENT:RESPONDENT:DEFENDANT:
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CHERPULASSERY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, CHERPULASSERY, OTTAPALAM TALUK.
BY ADV. SRI.MILLU DANDAPANI
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Kss
P.BHAVADASAN, J.
R.S.A No.424 of 2010
Dated this the 26th July, 2010
J U D G M E N T
Aggrieved by the concurrent findings against them, the plaintiffs in O.S.No.95/1999 before the Munsiff Court, Ottappalam have come up in appeal before this Court.
Plaint A, B and C schedule properties originally belonged to Panangad Tarwad. Appellants claim that the purchase of A schedule property was from Tarwad as per Exts. A1 to A3. They put up a shopping complex in the plaint A schedule property and also started a private market in the building. According to the plaintiffs, plaint B schedule property was purchased in 1977 by the Panchayat for the purpose of running a bus stand. The bus stand was established and a shopping complex was later constructed in the plaint B schedule property. At the time of purchase of B schedule property, C schedule pathway was provided for the purpose of reaching A schedule property from Cherpulassery Public Road to the B schedule property. According to the plaintiffs, there was in existence C
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schedule Pathway running through the B schedule property and they acquired right of easement by way of prescriptive to use C schedule. It is also contended that Panchayat put up a compound wall and an opening was provided by the Panchayat so as to enable persons who come to private bus stand and shopping complex constructed by the plaintiffs. The claim of the plaintiffs is that they have got the right of easement over C schedule way. Claiming easement of right over C schedule way and as to remove the hindrance put on the southern compound wall of the B schedule property which provide an opening to reach the shopping complex, the suit was laid.
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was demolished by the plaintiffs. Asserting that the plaintiffs had no manner of right over C schedule, they prayed for dismissal of the suit.
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court.
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has noticed that to enter from the A schedule property to the B schedule property no gap of 4 feet width was ever provided as contended by the plaintiffs.
come to the conclusion that plaintiffs had no manner of right over B schedule property.
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had acquired a prescriptive right of easement. A reading of the judgment of the lower appellate court shows that there is a Panchayat road on the western side of the plaint schedule property. If that be so, it is difficult to believe that a narrow strip of land would have been kept aside as shown in C schedule. The main contention raised by the appellants was that the appellants had agreed to abide by two conditions in Ext.A4 notice sent by the predecessor in interest of the plaintiffs. However, Ext.A8 shows that Panchayat had not agreed to any of the conditions and it was an assignment without any conditions whatsoever. Both the courts below were unable to locate the right vested with the plaintiffs to enable them to claim that they are entitled to use C schedule pathway and also entitled to be provided with an opening in their compound wall for access to the shopping complex. On a consideration of the materials before the court, it is felt that both the courts below have considered the matter in great detail and has taken relevant facts into consideration. There is nothing to show that the findings are either perverse or unwarranted
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by the evidence on record.
This Second Appeal is dismissed.
P.BHAVADASAN, JUDGE
ma
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2 issues framed by the court
Whether the appellants can establish a prescriptive right of easement over the pathway owned by the Panchayat.
Whether the lower courts justified their findings that the existence of the C schedule pathway and the agreed conditions were not established.
T. Muhammedkutty
Jameela
Eripurath Muhammedkutty
Cherpulassery Grama Panchayath
P. Bhavadasan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
