Dismissed

Kuriakose v. Jacob C.K.

Kerala HC21 May 2012RSA/338/2012

Case brief

AI extract

What is this about?

The High Court dismissed a regular second appeal seeking a prohibition and mandatory injunction regarding property rights over plaint C schedule. Upholding the convictions below, the Court held appellants only have an easement right over the path for accessing their acquired shelf B, not co-ownership or access to shelf A.

What did the court decide?

Second Appeal dismissed; pending interlocutory applications dismissed. No substantial question of law found.

Kuriakose Vs Jacob C.K. — Contract and Commercial Disputes | Kerala HC (2012)

¶1

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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MONDAY, THE 21ST DAY OF MAY 2012/31ST VAISAKHA 1934

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RSA.No. 338 of 2012 ()

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AS.121/2009 of DISTRICT COURT,THRISSUR OS.1703/2005 of II ADDL.MUNSIFF COURT,THRISSUR

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APPELLANT(S)/APPELLANTS/PLAINTIFFS:

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KURIAKOSE,

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AGED 62, S/O.THALAKOTOOR ANTHAPPAN, ERANELLUR VILLAGE DESOM, TALAPPILLY TALUK.

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SHIJO

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S/O.THALAKOTTOOR KURIAKOSE, ERANELLUR VILLAGE DESOM TALAPPILLY TALUK,

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REP. BY HIS POWER OFATTORNEY HOLDER KURIAKOSE, S/O.THALAKOTOOR ANTHAPPAN,ERANELLUR VILLAGE DESOM, TALAPPILLY TALUK.

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BY ADVS.SRI.G.SREEKUMAR (CHELUR) SRI.RAVI K. PARIYARATH

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RESPONDENT(S)/RESPONDENTS/DEFENDANTS:

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JACOB C.K.

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S/O.LATE CHAKRAMAKIL JOHN PAVOO, ANJOOR VILLAGE PAZHAMUKKU DESOM, THRISSUR TALUK - 680523.

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LOOSI

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W/O.C.K.JACOB, CHAKRAMAKIL HOUSE, ANJOOR VILLAGE PAZHAMUKKU DESOM, THRISSUR TALUK - 680523.

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JOSE ANTO

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S/O.C.K.JACOB, CHAKRAMAKIL HOUSE ANJOOR VILLAGE, PAZHAMUKKU DESOM THRISSUR TALUK - 680523.

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C.K.ANDREWS

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S/O.CHAKRAMAKIL JOHN PAVOO, PURUSHOTHAMAN,S/O.KUNJAN PALAKATTUNIRAPPIL HOUSE, EZHIPRA KARA VAZHAKULAM VILLAGE - 680523.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 21-05-2012, 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.338 of 2012

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Dated this the 21^st day of May, 2012.

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JUDGMENT

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Plaintiffs in O.S.No.1703 of 2005 of the court of learned II Additional Munsiff, Thrissur are the appellants before me, aggrieved by the dismissal of that suit as confirmed by the learned District Judge, Thrissur in A.S.No.121 of 2009.

¶29

2^nd appellant got plaint A schedule as per Ext.A1, assignment deed No.4170 of 1995. Appellants jointly acquired plaint B schedule as per Ext.A2, assignment deed No.692 of 2005. Plaint C schedule is the pathway over which appellants claimed right of access to the plaint A and B schedules. Appellants say that they have co-ownership right over plaint C schedule as per Ext.A2 and wanted to protect that right. Hence the suit for a decree for prohibitory and mandatory injunction.

¶30

Respondents contended that the property on the south of plaint C schedule was allotted to the 1^st respondent as per Ext.A6, partition deed No.1176 of 1987 and that there was a pig shed over the said way. The said way was not being used by anybody. There are coconut trees on the portion of way described as C schedule in the plaint. C schedule was not in existence at the time 2^nd appellant purchased plaint A schedule. Appellants have no right over plaint C schedule as they claimed. Appellants have only a restricted right over

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RSA No.338/2012

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plaint C schedule for access to the plaint B schedule in terms of the recital in Ext.A2, assignment deed. Respondents have no objection in appellants using plaint C schedule for access to the plaint B schedule but, contended that appellants have no right to use plaint C schedule for access to the plaint A schedule.

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Courts below found that the only claim appellants can have is easement by way of grant, on the strength of recital in Ext.A2 and that only concerned plaint B schedule. That right is not disputed by the respondents also. Courts below found that on the strength of Ext.A2, appellants cannot claim coownership right over plaint C schedule or easement by way of grant as regards plaint A schedule. Consequently, trial court dismissed the suit which the first appellate court confirmed. Hence this Second Appeal.

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Learned counsel contended that in view of the recital in Ext.A6, partition deed concerning plaint B schedule and other items referred to therein, appellants are co-owners of plaint C schedule. Learned counsel has invited my attention to the recitals in Ext.A6.

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It is not in dispute that plaint A schedule is not in any way related to

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Ext.A6. It is admitted that plaint B schedule was acquired by appellants from three sharers under Ext.A6. Going by Ext.A6, it is seen that for the use of

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RSA No.338/2012

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executant Nos.1, 2 and 5 to 9 (Ext.A2 is executed by executant Nos. 7 to 9) a way was provided as G schedule in the said document. It is true that in Ext.A6 while determining the share value of executant Nos.1, 2 and 5 to 9 value of their right in the G schedule was also taken into account. But, it is specifically stated in Ext.A6 that executant Nos.1, 2 and 5 to 9 have only a right over G schedule for access to the respective shares allotted to them. If that be so, the contention that appellants have, vide Ext.A2 purchased co-ownership right over plaint C schedule (G schedule in Ext.A6) cannot be accepted.

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As aforesaid the only right appellants can have is easement by way of grant and that, in view of the recitals in Ext.A6 and since plaint B schedule is purchased by appellants as per Ext.A2 from executant Nos.7 to 9 in Ext.A6 can relate only to plaint B schedule and not A schedule.

¶42

Learned counsel has contended that there is no means of access to the plaint A schedule. That is not a matter required to be decided in this proceeding. I must also notice that plaint B schedule was acquired by the appellants as per Ext.A2 in the year, 2005 while plaint A schedule was acquired by the 2^nd appellant as per Ext.A1 in the year, 1995.

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RSA No.338/2012

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On hearing learned counsel and going through the judgments under challenge and copy of Ext.A6, I do not find any substantial question of law involved in this appeal requiring admission of this appeal.

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Second Appeal is dismissed.

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All pending interlocutory applications will stand dismissed.

¶48

THOMAS P.JOSEPH, Judge.

¶49

cks

Kuriakose v. Jacob C.K.

Case brief

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Kuriakose v. Jacob C.K.

Case brief

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