Partly allowed

Pathrose v. Parameswaran

Kerala HC10 Jul 2012RSA/1003/2011

Case brief

AI extract

What is this about?

In a second appeal regarding an easement by prescription, the High Court of Kerala modified the first appellate court's finding. While acknowledging the rule of average is generally not applicable to easements, the court fixed the way's width at four and a half feet based on the Commissioner's report, differing from the initially fixed five feet.

What did the court decide?

Judgment and decree of the learned Sub Judge amended to fix the width of the way at four and a half feet.

Pathrose Vs Parameswaran — 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 THOMAS P.JOSEPH

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TUESDAY, THE 10TH DAY OF JULY 2012/19TH ASHADHA 1934

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RSA.NO. 1003 OF 2011 (C)

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AS.26/2010 OF SUB COURT, PERUMBAVOOR OS.50/2008 OF MUNSIFF'S COURT, KOLENCHERRRY

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APPELLANT(S)/RESPONDENTS/PLAINTIFFS:

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1. PATHROSE,S/O.PAILY,

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2. ANNAMMA, W/O.PATHROSE,

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BOTH ARE RESIDING AT KEELETH HOUSE, CHEMMANADU KARA THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK ERNAKULAM-682308

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BY SENIOR ADVOCATE SHRI R.D. SHENOY SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP

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RESPONDENTS/APPELLANTS/DEFENDANTS:

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1. PARAMESWARAN,S/O.SANKARAN,

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2. KOUSALYA, W/O.PARAMESWARAN,

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3. SATHEESAN, S/O.PARAMESWARAN,

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ALL ARE RESIDING AT THADATHIL HOUSE CHEMMANADU KARA, THIRUVANIYOOR VILLAGE KUNNATHUNADU TALUK, ERNAKULAM-682308

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BY ADV. SRI.M.S.UNNIKRISHNAN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10.07.2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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THOMAS P.JOSEPH, J.

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==================================== R.S.A. No.1003 of 2011

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====================================

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Dated this the 10^th day of July, 2012

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J U D G M E N T

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The following substantial question of law is framed for a decision.

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Whether having regard to the evidence on record, the first appellate court was justified in fixing width of the way as five feet?

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The question arises in a Second Appeal from the judgment and decree in A.S. No.26 of 2010 of the court of learned Sub Judge, Perumbavoor allowing the appeal in part and modifying the judgment and decree of learned Munsiff, Kolencherry in O.S. No.50 of 2008.

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Appellant filed the suit for a decree for prohibitory injunction against the respondents opening a motorable way through the suit property. Respondents claimed that they have a right of easement by prescription along the suit property and leading to their residential compound. They claimed that the said way is having a width of nine feet.

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R.S.A. No. 1003 of 2011

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-: 2 :-

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Trial court did not accept the plea of the respondents and granted a decree for prohibitory injunction as prayed for. Respondents challenged that judgment and decree in A.S. No. 26 of 2010. Learned Sub Judge upheld the plea of easement by prescription raised by the respondents and referring to the evidence held that width of the way varied at different points and fixed the width at five feet taking the average. Judgment and decree of the trial court was modified to the extent that respondents were restrained from trespassing into the suit property other than the five feet width pathway. Hence this appeal at the instance of the plaintiffs.

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Learned Senior Advocate has contended that the rule of average will not apply to a case of easement since easement is a precarious right affecting the proprietory right of the owner of the property. It is contended that in the absence of acceptable evidence that way has a uniform width of five feet, the first appellate court was not right in taking an average of the width reported by the Advocate Commissioner and fixing the width as five feet. It is submitted by learned Senior Advocate that in such circumstances the width that could be accepted must be the least width the Advocate Commissioner has reported.

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R.S.A. No. 1003 of 2011

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-: 3 :-

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The learned counsel for the respondents would contend that the Advocate Commissioner inspected the property during the rainy season when there was growth of grass on either side of the way thereby diminishing the width of the way in appearance and hence the Advocate Commissioner had to report the width as varying at various point is different. Learned counsel referred me to the evidence of D.Ws. 2 to 5 as regards the width of the way and its user by the respondents.

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Exhibits C2 and C2(a) are the report and sketch the first appellate court has taken into account. It is seen that the Advocate Commissioner has reported the width of the way at various points as different. If at one point it is three feet (at that place the Advocate Commissioner found a heap of stones) at another point the width is four feet and it extends to nine and a half feet. The learned counsel for respondents has invited my attention to the width of the slab kept on the south-eastern termini of the way where it enters the residential compound of the respondent. The learned counsel submits that the width of that slab is nine and a half feet which indicates the width of the way.

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So far as that contention is concerned I must notice

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R.S.A. No. 1003 of 2011

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-: 4 :-

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that respondents have not challenged that part of judgment and decree of the first appellate court by way of an independent appeal or a cross objection. Hence the respondents cannot justifiably contend that they are entitled to get width of the way in excess of five feet as found by the first appellate court. The question is whether the first appellate court was right in fixing the width of the way as five feet.

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I referred to Exts.C2 and C2(a), report and sketch as regards the width. There may be a point in what the learned Senior Advocate contends that the rule of average is not applicable in fixing the width of the way when a right of easement is claimed. But in this case it is seen that the Advocate Commissioner has inspected the property during the rainy season and hence the possibility of growth of grass on either side of the way thereby diminishing the width of the way in appearance cannot be ruled out. That possibly is the reason why the Advocate Commissioner could not find a uniform width for the way. Having regard to these aspects of the matter and having heard the views of the learned Senior Advocate for the appellants and the learned counsel for respondents I am inclined to think that the width of the way could be fixed as four and a half feet.

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R.S.A. No. 1003 of 2011

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-: 5 :-

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Judgment and decree of the first appellate court has to be modified accordingly.

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Substantial question of law framed is answered as

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above.

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Second Appeal is allowed in part as under.

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(i) Judgment and decree of the learned Sub

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Judge, Perumbavoor in A.S. No.26 of 2010 is modified to the extent that the width of way is fixed as four and a half feet.

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(ii) In all other respects the judgment and decree of the learned Sub Judge, Perumbavoor would stand.

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(iii) Parties shall suffer their respective costs.

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All pending Interlocutory Applications will stand dismissed.

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THOMAS P. JOSEPH, JUDGE.

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vsv

Pathrose v. Parameswaran

Case brief

What is this about?

What did the court decide?

Pathrose v. Parameswaran

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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