Allowed

Kanjana v. Devaki

Kerala HC3 Jul 2012RSA/1415/2011

Case brief

AI extract

What is this about?

In a second appeal regarding a dispute over prescriptive easement and right of way, the parties settled the matter by mutual agreement. The court recorded the settlement and passed a decree mandating the respondent to provide access to the appellant's property, disposing of the suit without deciding the framed legal questions.

What did the court decide?

Respondent to provide a one-metre wide way for access to Appellant's property from her own land to the Panchayat road.

Kanjana Vs Devaki — 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 3RD DAY OF JULY 2012/12TH ASHADHA 1934

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RSA.No. 1415 of 2011 ( )

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AS.93/2010 of SUB COURT, CHERTHALA

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OS.580/2007 of ADDL.MUNSIFF COURT,CHERTHALA

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APPELLANT(S)/APPELLANT/PLAINTIFF:

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KANJANA,

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W/O.PADMANABHAN, HOUSEHOLD AFFAIRS, AGED 72 YEARS, RESIDING AT THATTUNGALPARAMBU KURUPPAMKULANGARA P.O., CHERTHALA.

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BY ADVS.SRI.T.JAYAKRISHNAN

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SRI.NIDHI BALACHANDRAN

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RESPONDENT(S)/RESPONDENT/DEFENDANT:

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DEVAKI

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W/O SURENDRAN, POOPPALICHIRAYIL KURUPPANKULANGARA P.O., CHERTHALA-688539.

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BY ADV. SRI.J.JULIAN XAVIER BY ADV. SRI.FIROZ K.ROBIN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03-07-2012, 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.1415 of 2011

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Dated this the 3^rd day of July, 2012.

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JUDGMENT

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This Second Appeal is in challenge of judgment and decree of learned Additional Munsiff, Cherthala in O.S.No.580 of 2007, confirmed by the learned Sub Judge, Cherthala in A.S.No.93 of 2010.

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The appellant/plaintiff sued the respondent/defendant for a declaration of right of easement by prescription and consequent prohibitory injunction. Appellant claimed that she is the owner in possession of item No.1 of the plaint schedule and by continuous, uninterrupted open, peaceful use of item No.2 as of right, as an easement for more than the statutory period she has acquired a right of easement by prescription over item No.2. Item No.2 is described as a way having width of one metre and length of 17 metres, allegedly originating from the Panchayat road on the extreme east, passing through the property of the respondent towards west and reaching plaint schedule item No.1. Courts below found against the plea of easement raised by the appellant and refused to grant relief.

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The following substantial questions of law are framed for a decision:

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i. Were the courts below correct in holding that the appellant has not proved prescriptive user of way through respondent's property?

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RSA No.1415/2011

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ii. Whether a claim for prescriptive easement can be turned down because of an alternate way shown through a thodu?

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iii. Can closing down of the alleged alternate way by the respondent during pendency of the litigation be counted in appellant's favour?

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When this appeal came up for hearing this day, learned counsel on both sides agreed to settle the dispute. The learned counsel for the respondent agreed to provide a way for access to item No.1 from its south-western corner, straight towards south through the property of the respondent and reaching the Panchayat road on the further south, at a width of one metre. The learned counsel for appellant agreed to that suggestion. The learned counsel on both sides have made an endorsement to that effect in the Memorandum of Second Appeal.

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The learned counsel on both sides submitted that in view of the above, it is not necessary to call for records of the case or answer the substantial questions of law framed. The learned counsel also requested that a decree may be passed in terms of the settlement the parties have reached through their counsel and endorsed by them in the Memorandum of Second Appeal.

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Having regard to the dispute and the settlement, I am inclined to allow the request.

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RSA No.1415/2011

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Resultantly the Second Appeal is disposed of as under:

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i. Respondent/defendant shall provide a way having a width of one metre from the south-western corner of item No.1, towards south through the property of the respondent, straight, and upto the Panchayat road on the further south.

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ii. Respondent shall set out a way as aforesaid within one month from this day failing which it will be open to the appellant to set out the way as aforesaid through court at her expense.

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iii. If there is any tree or other obstruction in the said way agreed to be provided by the respondent, she shall remove such tree or other obstruction within one month from this day and make the way convenient for the use of the appellant/plaintiff.

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iv. In case such tree or other obstruction is not removed as aforesaid, it will be open to the appellant to remove such obstruction through court at her expense.

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v. It will be open to the appellant, men under her and her assignees to use the said way for access in the manner the said way permits.

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vi. The right given to the appellant for access through the said way shall pass with item No.1.

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RSA No.1415/2011

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vii. Respondent or anybody under her shall not cause any

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obstruction to the appellant, men under her and assignees making use of the said way for access to item No.1 from the Panchayat road on the extreme south.

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viii. Appellant hereby gives up all other claims regarding right of access through any other part of property of the respondent to item No.1.

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ix. It will be open to the respondent to close down the way described as item No.2 in the plaint schedule by constructing fence or other boundary or in such other manner but, only after a way is provided as first above mentioned.

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x. This decree is in substitution of the judgment and decree of the courts below and the suit will stand disposed of as above.

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xi. Parties shall suffer their cost through out.

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All pending interlocutory applications will stand dismissed.

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THOMAS P.JOSEPH, Judge.

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cks

Kanjana v. Devaki

Case brief

What is this about?

What did the court decide?

Kanjana v. Devaki

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

Coram

Case details

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