Dismissed

Velayudha Kurup v. Rugnini Amma

Kerala HC6 Jun 2011SA/579/1998

Case brief

AI extract

What is this about?

The High Court dismissed a second appeal challenging the reversal of a suit concerning access pathways. The appellate court found that appellants failed to establish a legal right of easement (due to lack of admitted ownership of the servient tenement) or dedicate the path as public. The High Court held no substantial question of law arose and dismissed the appeal.

What did the court decide?

The second appeal was dismissed; there was no order as to costs.

Velayudha Kurup Vs Rugnini Amma — Property and Title | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE P.BHAVADASAN

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MONDAY, THE 6TH JUNE 2011 / 16TH JYAISHTA 1933

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SA.No. 579 of 1998(B)

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---------------------

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AS.54/1995 of SUB COURT, OTTAPPALAM OS.139/1990 of MUNSIFF-MAGISTRATE COURT, PATTAMBI

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APPELLANTS/RESPONDENTS/PLAINTIFFS:

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------------------------------------------------------------

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1. VELAYUDHA KURUP, 50 YEARS, S/O.KALARIKKAL DECEASED KARAPPAN KURUP.

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2. KALIKUTTY, KURUPATHIYAR

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3. SUMATHY, W/O.VELAYUDHA KURUP

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BY ADVS. SRI.ANIL THOMAS (MELEMALAYIL)

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SRI.JOSE ABRAHAM

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SRI.SIJU P.KURIAKOSE

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RESPONDENTS/APPELLANTS/RESPONDENTS:

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-------------------------------------------------------------------

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1. RUGMINI AMMA, D/O.ADAVAKKATTU THUPPANACHALIL MADHAVI AMMA.

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2. KUNCHUNNI NAIR, HUSBAND OF RUGMINI AMMA, DO

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3. RATNAMANI RAJAN, DO.

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4. HEMALATHA, DO.

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BY ADV. SMT.PREETHY KARUNAKARAN

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SMT.M.R.MINI

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/06/2011, THE COURT ON 06/06/2011 DELIVERED THE FOLLOWING:

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SA.No. 579 of 1998(B)

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ORDER ON CMP NOS.2235/05, 2517/09, 1100/06, 3016/10, 820/09 IN SA 579/1998

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CLOSED

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6.6.2011

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Sd/- P.BHAVADASAN , JUDGE

/ TRUE COPY /

P.A. TO JUDGE

P.BHAVADASAN, J.

SA No.579 of 1998-B -------------------------------------

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Dated this the 6^th day of June 2011

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Judgment

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The plaintiffs in OS No.139/1990 before the Munsiff's Court, Pattambi, are the appellants. Their suit was dismissed by the lower appellate court, reversing the judgment and decree passed by the trial court in favour of the plaintiffs.

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The plaintiffs claimed that by virtue of Ext.A1 partition deed dated 26.05.1990, they are in absolute possession and enjoyment of plaint A schedule property. They claimed that for access to their property, there are two pathways shown as plaint B schedule items 1 and 2. One is from a panchayat road on the southern side of the defendant's house running towards north and leads to the property of the plaintiffs. The other way runs towards west and leads to another panchayat road. The plaintiffs averred that they have been using both the pathways for a

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SA 579/98

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considerable long period without any interruption and as of right. They also assert that these two pathways are the only means of access to their property. According to the plaintiffs, the defendants tried to interfere with their use of the pathways and that necessitated the suit.

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The defendants resisted the suit. They

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denied the allegations in the plaint. It was pointed out that the plaintiffs had other means of convenient access to their property. It was contended that a pathway is set apart in the partition deed of 1972 in the family of the defendants in order to provide access to one of the sharers. Pointing out that the plaintiffs had no manner of right to use any portion of the property of the defendants or any pathway set apart in the partition deed in the family of the defendants, they prayed for dismissal of the suit.

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On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Ext.A1 and A2 from the side of the plaintiffs. The

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SA 579/98

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defendants had DW1 examined and Ext.B1 marked. The commissioner was examined as CW1 and Exts.C1 to C6 commissioner's report and plan were also marked.

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The trial court, on a consideration of the materials before it, came to the conclusion that the plaintiffs have succeeded in establishing their right and accordingly decreed the suit. The trial court seems to have been impressed by the fact that on measurement, the property taken in by the way is comprised in Survey No.308/10 and 308/7. The defendants have no case that they have right in any portion of the property comprised in those survey numbers. The suit was decreed in favour of the plaintiffs.

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The defendants carried the matter in appeal as AS No.54/95 before the Sub Court, Ottappalam. The lower appellate court chose to differ from the trial court and was of the view that the plaintiffs were not sure about their rights and no particular right as such is pleaded or established to use the alleged pathway, even assuming that it is in existence. The lower appellate court held that

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even assuming the way exists, unless the plaintiffs establish their legal right to use the same, they could not be granted a decree. Accordingly, the appeal was allowed

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and the suit was decreed. Hence the second appeal.

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Notice is seen issued on the following

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questions of law raised in the second appeal :

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Whether the lower appellate court did not go wrong in allowing the appeal on the ground that the appellants have no claim of easement right on the pathways in question ?

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Whether the Sub Court, Ottappalam did not err in ignoring the contention of the appellant-plaintiffs that the defendants have no right of title or possession over the plaint B schedule items.

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Whether the court below did not go wrong in overlooking the fact that a cumulative reading of the averments in the plaint will make out a case of easement.

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Whether the court below did not misdirect itself in considering and confirming the case to a question of easement which was uncalled for and irrelevant to the

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pleadings of the case especially when the plaintiffs case is that the defendants do not have any right over B schedule items 1 and 2.

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Whether the court below did not go wrong in disregarding or overlooking that the necessary ingredients for granting mandatory injunction and prohibitory injunction contemplates under the Specific Relief Act have been made out by the plaintiffsappellants in the case.

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Whether the Sub Court did not err in confirming the issues before it to the canvas of the Easement Act totally ignoring or forgetful of the Specific Relief Act, which is applicable to the case on hand ?

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Whether the court below did not go wrong in its understanding and application of the law of Easement ?

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Whether the court below did not err in ignoring the fact that the deposition of DW1 in cross examination substantiated the case of the appellant.

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The learned counsel for the appellants

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pointed out that the lower appellate court was not justified

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in reversing the judgment and decree of the trial court. The learned counsel drew attention of this court to the the survey plan prepared at the instance of the defendants and pointed out that the defendants had no case that they had any extent of property in Survey No.308/10 and plaint B schedule item No.1 was in Survey No.308/10. Similar is the case of the pathway on the northern side of the defendants' property which is in Survey No.308/7. It was these facts which persuaded the trial court to come to a conclusion in favour of the plaintiffs. According to the learned counsel, the reasons given by the lower appellate court to discard the views of the trial court are not justified. The existence of the way and its use is established by the commissioner's report and the evidence on record. It is also evident from the report that the plaintiffs have no other way for gaining access to their property. These vital aspects have been omitted to be noticed by the lower appellate court and that has resulted in miscarriage of justice.

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Per contra, the learned counsel for the

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respondents pointed out that the lower appellate court had approached the issues in the proper perspective and had come to the proper conclusion that the plaintiffs are not entitled to succeed. Referring to the plaint, the evidence and the memorandum of appeal, the learned counsel contended that even before this court, the plaintiffs are not sure about the nature of their rights to be established in order to make use of the pathway. At one place, they would say that they claim easement right and in another place, they claim that it is a public pathway. According to the learned counsel, if it is a case of easement, necessarily, the plaintiffs will have to admit the ownership of the defendants over the disputed pathway and if their case is that it is a public pathway, then, they will have to prove dedication – either express or implied. It is pointed out that in Ext.A1 partition deed, a three feet way has been given to the plaintiffs for their ingress and egress. The learned counsel went on to point out that the mere fact that

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the defendants have stated that they have no property in the survey number shown in the plaint which takes in the pathways, that does not mean that the defendants have no right over those properties. The defendants obtained the plaint schedule properties by virtue of Exts.A1 and A2. Ext.B1, which is earlier in point of time, does not show the existence of ways as alleged in the plaint. According to the learned counsel, the two ways find a place in Ext.A2 partition deed between the members of the family of the defendants in the year 1972. It was only for the purpose of providing access to one of the sharers that the way was shown. But that did not mean that there was a public pathway. Even assuming there is a way, it was the duty of the plaintiffs to show that they were entitled to use the pathway as of right. Having failed to establish any manner of right for using the pathway, there is no other reason to interfere with conclusions of the lower appellate court.

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10.The trial court found that the way does exist. The trial court was mainly impressed by the

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statement made by the first defendant that he owns no property in Survey No.308/10 and 308/7 which are two survey numbers which take in the respective pathways namely, plaint B Schedule items 1 and 2. The commissioner's report has also shown the existence of a pathway, But the question is whether the existence of a pathway by itself is sufficient to grant a decree in favour of the plaintiffs. A reading of the plaint, the evidence of PW1 and the appeal memorandum would indicate that the plaintiffs were not sure about their rights. They claim both easement right and also claim that the way is a public pathway. For the claim of easement right, necessarily, the plaintiffs will have to admit the ownership of the defendants. In the case on hand, they do not admit the ownership of the defendants and so, the question of easement

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does not arise. As regards the claim that it is a

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public pathway, they should prove dedication of the pathway either express or implied. That has also not been done in this case.

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Questions 1 and 3 raised in the

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memorandum of appeal specifically refer to claim of easement right. This shows that before this court also, the plaintiffs are not sure about their rights. When they dispute the ownership over servient tenement, easement cannot arise. There is also nothing to show that the pathway is a public pathway. The commissioner's report would indicate that the pathway claimed on the northern side of the defendants' property is on the southern side of the plaintiffs' property. It is not possible to understand either from the pleading or evidence as to what exactly are the rights claimed by the plaintiffs. A reading of the plaint would show that the plaintiffs claim both easement right and also that it is a public pathway. It should be remembered that each of the above claims is distinct and different and the

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ingredients to be established to justify a claim on the above grounds are entirely different. The mere fact that they use the pathway is not sufficient unless they are able to establish that they have a right to use the pathway. It is here that one has to refer to the evidence of PW1 in his cross examination. He has stated as follows :

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“വഹകള തറവ�ട�ല�ക� ക�ട�യത�ന� സ�ബന�ച� മറ� ല�ഖകന��ന�� ഹ�ജ��ക�യ�ട� ല. ജന� പത�ച �

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വ��#�യ�ട�ല$�എനറ�യ�ല. Ext.A1 പപക�� ഞ��#ളക� 3 അട� വ+ത�യ�ല വഴ� വ�ട� തന�ട�$�. Bപട�ക വഴ�കള എ��ലക�ര/ വചത�� മ �ന0യ�$�. ഭ�ഗ�ധ��ത�ല ക�ണ�ച വഴ�യല�നത ഞ��#��നട വ+ട�ല�ക�ലവനറ വഴ�യ�$�യ��ന�ല.”

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If as a matter of fact, the way as now claimed

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was available to the plaintiffs, it was unnecessary to provide a way in the partition deed made mention of in the plaint. It will be useful to notice here that the properties divided as per Ext.A1 was lying as a compact plot with a pathway on the eastern side and northern side. At that point of time, it was unnecessary for the plaintiff or for the

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SA 579/98 12

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parties to use the alleged pathway. The partition in the family of the plaintiffs was in the year 1990. The suit comes soon thereafter. Probably, the case of the defendants that the way mentioned in Ext.A2 document came into existence at the time of Ext.A2 partition deed and till such time, it was not in existence is true. One has to notice Ext.B1 document, which is the basic document of title of the defendants, which does not indicate existence of any way as claimed by the plaintiffs.

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The lower appellate court has considered the issue in detail and has found that there was no evidence of any dedication express or implied. The mere use of the pathway will not confer any right to use the pathway. Right has to be established in the manner prescribed by law. As already noticed, the deposition of PW1 has been taken note of by the lower appellate court. As already noticed, merely because the defendants have stated that they do not have any property in Survey No.308/10 or 308/7, that by itself is not a ground to grant a decree in favour of the

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plaintiffs. The lower appellate court was, therefore, fully justified in its conclusion that the plaintiffs have not been able to establish their case. The findings are essentially findings of fact, based on appreciation of evidence.

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No substantial questions of law arise for consideration in this appeal. The second appeal is devoid of any merits and it is accordingly dismissed. There will be no order as to costs.

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P.Bhavadasan, Judge

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sta

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SA 579/98 14

Velayudha Kurup v. Rugnini Amma

Case brief

What is this about?

What did the court decide?

Velayudha Kurup v. Rugnini Amma

Case brief

What is this about?

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