Dismissed

E.Narayanan Nair v. M.Anil Kumar

Kerala HC10 Aug 2012RSA/557/2012

Case brief

AI extract

What is this about?

In a second appeal regarding neighbour rights and injunctions, the High Court of Kerala clarified that a right of access created by registered agreement runs with the land. The Court held that the resulting injunction restraining the appellant (plaintiff owner) from trespassing on a pathway, but allowing the respondent's usage, does not affect the appellant's title to the pathway. Finding no subst

What did the court decide?

The second appeal is dismissed with clarification that the judgment does not affect the appellant's title to the pathway as long as it does not obstruct the respondent's right of access.

E.Narayanan Nair Vs M.Anil Kumar — Landlord and Tenant | 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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FRIDAY, THE 10TH DAY OF AUGUST 2012/19TH SRAVANA 1934

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RSA.No. 557 of 2012 ()

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AS.139/1998 of DISTRICT COURT, KASARAGOD OS.142/1994 of SUB COURT, HOSDRUG

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APPELLANT(S)/APPELLANT/DEFENDANT:

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E.NARAYANAN NAIR, S/O LAKSHMI AMMA, AGED 61 YEARS, KIZHAKKEN KOZHUVAL, NILESHWAR P.O, NILESHWAR VILLAGE, HOSDURG TALUK KASARAGOD DISTRICT

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BY ADV. SRI.R.PREMCHAND BY DILSHA A.A.

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RESPONDENT(S)/RESPONDENT/PLAINTIFF:

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M.ANIL KUMAR, S/O M. NARAYANAN, AGED 47 YEARS, MUNUKARA HOUSE, KIZHAKKEN KOZHUVAL, NILESHWAR P.O, NILESHWAR VILLAGE, HOSDURG TALUK KASARAGOD DISTRICT, PIN - 671 512.

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BY ADV. SRI.K.RAMACHANDRAN BY ADV.SRI.D.KRISHNA PRASAD

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10-08-2012, 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.557 of 2012

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Dated this the 10^th day of August, 2012.

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JUDGMENT

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The defendant in O.S.No.142 of 1994 of the Sub Court, Hosdurg is aggrieved by the decree passed in that case as confirmed by the District Court, Kasaragod in A.S.No.139 of 1998.

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According to the respondent/plaintiff, the plaint A and B schedules originally belonged to the appellant (being part of 30 cents covered by Ext.B1). Appellant gifted the plaint A and B schedules to his Uncle, Krishnan Nair as per gift deed dated 25.07.1987. It is the further case of the respondents that the gift was accepted by the donee who got possession of the plaint A and B schedules. The donee constructed a house in the said property. The appellant cancelled the gift as per document No.237 of 1992 . Later, he sold the said property to the said Krishnan Nair as per Ext.A2, assignment deed dated 17.08.1992. At that time the appellant executed Ext.A3, registered agreement dated 04.03.1993 in favour of Krishnan Nair granting him right of access through the western boundary of the 20 cents belonging to the appellant. The respondent further alleged that the plaint B schedule, pathway joined the public way on the northern side of property of the appellant. It has a width of four links and length of 130 links. The respondent claims that he purchased the property from Krishnan Nair as per Ext.A4 and by virtue of Ext.A3, registered agreement he

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RSA No.557/2012

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has acquired a right to use the plaint B schedule pathway for access to the public road on the northern side. Alleging obstruction on the part of the appellant, respondent laid the suit for a decree for prohibitory injunction.

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Appellant contended that he has got right over other properties and that as per Ext.A3, agreement dated 04.03.1993 a small way leading to the plaint B schedule having width of four links was allowed to be used as a way by the said Krishnan Nair. That right is confined only to the Krishnan Nair. The respondent cannot make use of the plaint B schedule.

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The trial court found that there is no dispute regarding title and possession of the plaint A schedule and that the dispute is only regarding the plaint B schedule way. The trial court also held that the right granted as per Ext.A3 is a covenant running with the land and hence the assignee of the plaint A schedule (respondent) is entitled to make use of the plaint B schedule for access to the plaint A schedule. Accordingly, a decree for prohibitory injunction was granted. That was confirmed by the first appellate court. Hence the second appeal.

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The learned counsel contends that there is dispute regarding the identification of the plaint B schedule and rest of the property belonging to the appellant. According to the learned counsel, the properties belonging to other persons are shown to be belonging to the appellant. The learned counsel also contended that the respondent has no right of access to plaint A schedule through the plaint B schedule.

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It is seen from the plaint that what is prayed for by the respondent

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is only a decree for prohibitory injunction to restrain the appellant from

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RSA No.557/2012

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trespassing into the plaint A schedule or obstructing him from using the plaint B schedule way for access to the plaint A schedule. From that, it is seen that the respondent is not claiming any title over the plaint B schedule so far as the present litigation is concerned. The learned counsel who took notice for the respondent also submitted that no title is claimed over the plaint B schedule so far as the present litigation is concerned.

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Ext.A3 confers right of access to Krishnan Nair through the property referred to therein for access to the plaint A schedule. It is admitted that on the extreme northern side, it is a public road and the evidence reveals that except the plaint B schedule, the respondent has no other access to the plaint A schedule. The plan prepared by the Advocate Commissioner also reveals that.

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So far as the dispute regarding identity is concerned, it is not necessary for me to go into that question since no claim of title is made by the respondent in this proceeding over the plaint B schedule. Plaint B schedule is identified by the Advocate Commissioner in the plan. Ext.A3 confers right on Krishnan Nair to use the plaint B schedule. Certainly, it is by virtue of Ext.A2, assignment deed concerning the plaint A schedule and Ext.A3, registered agreement. The right conferred on Krishnan Nair to use the plaint B schedule is for the beneficial enjoyment of the plaint A schedule. That right must run with the land. By Ext.A4, Krishnan Nair assigned the plaint A schedule to the respondent. Hence by virtue of Exts.A3 and A4, the respondent has got right to use the plaint B schedule as identified by the Advocate Commissioner for access to the plaint A schedule.

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RSA No.557/2012

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It would appear from the operative portion of the judgment and decree of the trial court (as confirmed by the first appellate court) that there is a decree for prohibitory injunction restraining the appellant and his men from “trespassing” into plaint B schedule as well. The right which the respondent has claimed and upheld by the courts below based on Exts.A3 and A4 is a right to use the plaint B schedule for access to the plaint A schedule. That will not in any way affect the title or possession of the appellant over the plaint B schedule, so far as it does not obstruct user of the plaint B schedule by the respondent. Hence it is made clear that the judgment and decree of the trial court as confirmed by the first appellate court will not in any way affect the title or possession of the appellant over the plaint B schedule so far as it does not in any way cause obstruction to the respondent using the plaint B schedule for access to the plaint A schedule.

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On hearing the learned counsel on both sides and going through the judgments under challenge I do not find any substantial question of law involved requiring decision by this Court.

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Resultantly, with the clarification made in paragraph 9 above the 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

E.Narayanan Nair v. M.Anil Kumar

Case brief

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E.Narayanan Nair v. M.Anil Kumar

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