Dismissed

Santhakumari v. Subramanian

Kerala HC19 Jun 2012RSA/184/2012

Case brief

AI extract

What is this about?

The High Court dismissed a regular second appeal. The Second Appellate Court had reversed the trial court's dismissal of a suit for injunction, holding that the existence of an easementary way was proved by documentary and oral evidence, including title deeds not party-to-the-suit.

What the court decided

AI extract

Santhakumari Vs Subramanian — Partition | 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 19TH DAY OF JUNE 2012/29TH JYAISHTA 1934

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RSA.No. 184 of 2012 ()

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AS.68/2007 of SUB COURT, OTTAPPALAM OS.221/2006 of MUNSIFF COURT, OTTAPPALAM

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APPELLANT(S)/RESPONDENTS/DEFENDANTS:

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SANTHAKUMARI W/O.KILIYINKAL KUNCHUNNI EZHUTHASSAN, PULLUNDASSERY AMSOM, DESOM, OTTAPALAM TALUK

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LAL,

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S/O.SANTHAKUMARI, PULLUNDASSERY AMSOM, DESOM, OTTAPALAM TALUK

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BY ADVS.SRI.T.KRISHNAN UNNI (SR.)

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SMT.P.A.SHEEJA SRI.K.C.KIRAN SMT.MEENA.A.

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RESPONDENT(S)/APPELLANT/PLAINTIFF:

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SUBRAMANIAN, S/O.KALLIKKALAM KRISHNA GUPTHAN, PULLUNDASSERY AMSOM, DESOM, OTTAPALAM TALUK - 679101

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BY ADV. SMT.T.D.RAJALAKSHMI BY ADV. SRI.R.SREEHARI

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19-06-2012, 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.184 of 2012 -------------------------------------Dated this the 19^th day of June, 2012. JUDGMENT

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The defendants in O.S.No.221 of 2006 of the court of learned Munsiff, Ottapalam are aggrieved by the reversal of judgment and decree in that case by the learned Sub Judge, Ottapalam in A.S.No.68 of 2007.

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Respondent/plaintiff sued the appellants for a decree for prohibitory and mandatory injunction. He claimed that plaint A schedule belonged to him as per Ext.A1, assignment deed of the year, 1984 executed by one Ponnambal and later, respondent purchased the jenm right from the landlord as per proceeding No.84 of 2001. Plaint B schedule is a way described as having width of 12 feet, starting from the north-eastern portion of plaint A schedule and reaching the Panchayat road on the further east. According to the respondent, the way was granted by Balaguptan, predecessor-in-interest of appellants about 30-35 years back. Respondent filed O.S.No.140 of 2004 against the 1^st appellant for injunction against trespassing into his property and enraged at that, appellants (allegedly) blocked plaint B schedule way by constructing a barbed wire fence thereby reducing the width of the way. Hence the suit.

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Appellants contended that there is no such way as plaint B schedule and that they have created a way having width of about three feet for their private use.

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RSA No.184/2012

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Trial court was not inclined to accept the version of respondent and dismissed the suit. Learned Sub Judge, in appeal, took a different view. Based on the oral and documentary evidence learned Sub Judge came to the conclusion that existence of the way is proved and having regard to the width of the iron gate respondent has put up at the north-eastern corner of plaint A schedule, fixed the width of plaint B schedule way as two metres and accordingly granted relief to the respondent. That judgment and decree are under challenge.

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Learned Senior Advocate for appellants contends that existence of the way is not proved. At any rate, to sustain a plea of easement by way of grant there should have been a formed way which is absent in this case. It is also contended that finding of the first appellate court regarding width of the way is not correct and even the report of the Advocate Commissioner would only show width at the entry point as three feet as against two metres now fixed by the learned Sub Judge.

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PW2 is the Advocate Commissioner in O.S.No.140 of 2004 filed by the respondent against the 1^st appellant (which was not in respect of the disputed plaint B schedule). Exts.A4 and A4(a) are the copy of report and survey plan obtained in that case. In Ext.A4, PW2 has referred to the way from the northeastern portion of plaint A schedule to the Panchayat road on the further east. But, he has not mentioned the width of the way in Ext.A4 or Ext.A4(a). The reason stated by him for not reporting the width is that there was no direction (in

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RSA No.184/2012

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O.S.No.140 of 2004) to him to ascertain width of the way (since that suit concerned property of the respondent). But, PW2 has given evidence that at the time he inspected the properties the width of the way was about 7-8 feet.

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PW3 is the prior owner of the property of appellants. She acquired the property from Balakrishna Gupthan as per Ext.A5 and assigned the same to one Raghunathan as per Ext.A6. According to the respondent and PW3, the five cents covered by Exts.A5 and A6 is situated on the north of plaint B schedule way. In Exts.A5 and A6, southern boundary of property referred to therein is described as the way. PW3 has given evidence that the said way (plaint B schedule) was having a width of 12 feet at the time she was enjoying the property covered by Ext.A5.

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In Exts.C1 to C2(a), the Advocate Commissioner (PW4) has shown plaint B schedule with the red marking as the barbed wire fencing put up by the appellants (allegedly) encroaching into the plaint B schedule. The Advocate Commissioner has also shown the iron gate towards the north-eastern corner of plaint A schedule the width of which is two metres. But at the entry point, ie. where plaint B schedule touches the Panchayat road on the east, width is stated as one metre. Ext.C2(a) is the sketch prepared by the Advocate commissioner at the time of the second inspection. There also, plaint B schedule is shown as having width of two metres towards the portion where it touches plaint A schedule and one metre at the entry point of the Panchayat road.

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RSA No.184/2012

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Ext.B1 is the assignment deed in favour of appellants. There, the boundary described does not tally with the description in Exts.A5 and A6. Appellants have given oral evidence that there is no such way as described in plaint B schedule and what was in existence is a three feet wide way meant for private use of the appellants.

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Trial court was of the view that Exts.A5 and A6 cannot be taken into account since they are not documents between parties to the suit. Trial court was impressed by the description in Ext.B1 and held that plaint B schedule is not properly identified. Consequence was the dismissal of the suit.

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The first appellate court however took a different view of the matter. It relied on the evidence of PW3 and Exts.A5 and A6 to hold in favour of existence of plaint B schedule. In that view of the matter, the first appellate court granted a decree in favour of the respondent fixing width of the way as two metres having regard to the width of the iron gate which I have already referred to above.

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It is argued by the learned Senior Advocate that if the claim of respondent is an easement by way of grant, there must be evidence of a formed way, but evidence on record is not sufficient to hold so. There is also dispute regarding width of the way as found by the first appellate court.

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RSA No.184/2012

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Going by the plea of the respondent and the evidence he has adduced, it is clear that he is claiming a right of easement by way of grant - he says that the pathway was provided by Balagupthan, predecessor-in-interest of the appellants. That, the predecessor-in-interest of appellants is Balagupthan is not disputed by the appellants also. A further fact which has come in evidence is that Exts.A5 and A6 concerned the property of appellants. Trial court was not correct in rejecting Exts.A5 and A6 for the reason that those documents are not between the parties to this proceeding. In Exts.A5 and A6, the southern boundary is described as the way, obviously referring to plaint B schedule since it is admitted that the property of appellants is situated on the northern side of plaint B schedule. Thus, that there was a way in existence even before Exts.A5 and A6 is proved. In the circumstances there was no reason why the evidence of respondent that a way was granted by Balagupthan should be rejected. PW2, the Advocate Commissioner in O.S.No.140 of 2004 also found the existence of the way originating from the north-eastern portion of plaint B schedule and touching the Panchayat road on the eastern side. Though, may be for the reason that he was not directed to ascertain width of the way in that case, he did not mention the width of the way in Exts.A4 and A4(a). But, PW2 having visited the property sometime in the year, 2004 was competent to give evidence as to what he had seen at spot. PW4 who prepared Exts.C1 to C2(a) stated that at the time of first inspection she was not able to find plaint B schedule having width of 12 feet. But I must notice that appellants trespassed into plaint B schedule and constructed wire fencing, which the Advocate Commissioner has noticed in Exts.C1 to C2(a).

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RSA No.184/2012

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It is based on the width of the iron gate towards north-eastern corner of plaint A schedule that the first appellate court has fixed width of the pathway as two metres. Merely for the reason that at the point the said way touches the Panchayat road on the eastern side width is only one metre, I cannot accept the contention that the width cannot exceed one metre since evidence reveals that there was encroachment into the plaint B schedule and construction of wire fencing.

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The first appellate court has considered the evidence and come to the conclusion that claim of the respondent that he has right of easement by way of grant over plaint B schedule is accepted. On evidence, first appellate court fixed the width of that way. The finding of fact is based on the evidence and it involves no substantial question of law.

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Second Appeal is dismissed.

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All pending interlocutory applications will stand dismissed.

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THOMAS P.JOSEPH, Judge.

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cks

Santhakumari v. Subramanian

Case brief

What is this about?

What the court decided

Santhakumari v. Subramanian

Case brief

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