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Jolly Mathew @ Aleyamma Mathew v. Sunny

Kerala HC6 Dec 2012OP(C)/3558/2012

Case brief

AI extract

What is this about?

The High Court set aside a refusal to admit an unregistered agreement in evidence, holding that the portion creating a right of easement is severable and admissible without registration per Mathai v. Jordi Poulose.

What did the court decide?

Impugned order set aside and lower court directed to admit the agreement dated 30.8.2008 in evidence for the collateral purpose of discerning the alleged creation of a right of easement.

Jolly Mathew @ Aleyamma Mathew Vs Sunny — Property and Title | Kerala HC (2012)

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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 V.CHITAMBARESH

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THURSDAY, THE 6TH DAY OF DECEMBER 2012/15TH AGRAHAYANA 1934

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OP(C).No. 3558 of 2012 (O)

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OS.184/2009 of MUNSIFF COURT, KANJIRAPPALLY

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PETITIONER(S):

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JOLLY MATHEW @ ALEYAMMA MATHEW, AGED 40 YEARS W/O.MATHEW, AMBATTU NEELIVILAYIL, ASAMBANI BHAGOM VANDAMPATHAL, ERUMELY NORTH VILLAGE KANJIRAPPALLY TALUK.

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BY ADVS.SRI.LIJI.J.VADAKEDOM

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SMT.REXY ELIZABETH THOMAS

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RESPONDENT(S):

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SUNNY, AGED 50 YEARS

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PUTHUPARAMBIL HOUSE, ASAMBANI BHAGOM, VANDAMPATHAL ERUMELY NORTH VILLAGE, KANJIRAPPALLY TALUK

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KOTTAYAM DISTRICT.686 509.

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ELSY, AGED 45 YEARS

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W/O.SUNNY, PUTHUPARAMBIL HOUSE, ASAMBANI BHAGOM VANDAMPATHAL, ERUMELY NORTH VILLAGE

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KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT. 686 509.

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R BY

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX IN O.P.(C) NO.3558 OF 2012

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PETITIONER'S EXTS:

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EXT.P1- THE COPY OF THE PLAINT IN O.S.NO.184/2009 BEFORE THE MUNSIFF'S COURT, KANJIRAPPALLY.

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EXT.P2- TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.184/2009 BEFORE THE MUNSIFF'S COURT, KANJIRAPPALLY.

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EXT.P3- THE COPY OF THE CHIEF AFFIDAVIT FILED BY THE PLAINTIFF IN O.S.NO.184/2009 BEFORE THE MUNSIFF'S COURT, KANJIRAPPALLY.

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EXT.P4- THE COPY OF THE AGREEMENT DATED 30.8.2008 MARKED BY THE PLAINTIFF AS EXHIBIT A1 IN P3-CHIEF AFFIDAVIT IN O.S.NO.184/2009 BEFORE THE MUNSIFF'S COURT, KANJIRAPPALLY.

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EXT.P5- THE COPY OF THE ORDER SHEET RECORDING CROSS EXAMINATION OF THE PLAINTIFF IN O.S.NO.184/2009 BEFORE THE MUNSIFF'S COURT, KANJIRAPPALLY.

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EXT.P6- THE COPY OF THE 'B DAIRY' IN O.S.NO.184/2010 BEFORE THE MUNSIFF'S COURT, KANJIRAPPALLY.

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EXT.P7- THE JUDGMENT DATED 25.5.2011 IN WP[C] 6659/2010 PASSED BYT HIS HONOURABLE COURT.

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EXT.P8- THE COPY OF THE ORDER DATED 25.7.2012 IN O.S.NO.184/2009 FINDING THAT EXHIBIT P4 DOCUMENT CANNOT BE ADMITTED IN EVIDENCE.

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//TRUE COPY//

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P.S. TO JUDGE.

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V.CHITAMBARESH, J.

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O.P.(C) No. 3558 of 2012 ------------------------------- Dated this the 6^th day of December, 2012

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J U D G M E N T

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The court below has by the order impugned refused to admit the agreement dated 30.8.2008 relied on by the petitioner in evidence for want of registration. A reading of the agreement would reveal that it deals with two kinds of right. A possessory right is sought to be conveyed thereunder in addition to the creation of a right of easement.

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No registration of the document is required to create a right of easement as held in Mathai v. Jordi Poulose (2011 (2) KLT 605). That part of the agreement which creates a right of easement is severable from the remaining part transferring possessory right. The part severable relating to the creation of a right of easement is admissible in evidence even without registration. [See Mohanachandran Pillai v. Ramachandran (1999 (3) KLT 704)]

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I therefore set aside the impugned order and direct the court below to admit the agreement dated 30.8.2008 in evidence for the collateral purpose of discerning the alleged

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O.P.(C) No.3558/2012

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creation of right of easement. Whether a right of easement has been created under the agreement and whether the agreement has legal efficacy are all matters to be considered at the time of trial. The impact of Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 shall also be adverted to at the time of disposal of the suit.

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The original petition is disposed of. No costs.

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V.CHITAMBARESH, Judge.

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nj.

Jolly Mathew @ Aleyamma Mathew v. Sunny

Case brief

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Jolly Mathew @ Aleyamma Mathew v. Sunny

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