Dismissed

Raghavan v. Francis Joseph

Kerala HC1 Jun 2012RSA/575/2012

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a second appeal against a first appellate decree granting a prohibitory injunction. The plaintiff sought to stop defendants from using a pathway through his small property (plaint B schedule) to access a separate holding. The court held the appeal lacked substantial legal questions.

What did the court decide?

The second appeal was dismissed; the prohibitory injunction granted in the first appeal was upheld.

Raghavan Vs Francis Joseph — Kerala HC (2012) — LawSathi Research

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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 1ST DAY OF JUNE 2012/11TH JYAISHTA 1934

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RSA.No. 575 of 2012 (B) ---------------------AS.145/2009 of I ADDL.DISTRICT COURT, ERNAKULAM OS.1462/2003 of I ADDL.M.C.,ERNAKULAM

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APPELLANT/R2/2ND DEFENDANT:

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RAGHAVAN

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AGED 67 YEARS, THOOVANATTU HOUSE, AMBALOOR VILLAGE KANAYANNUR TALUK.

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BY ADVS.SRI.C.GEORGE K.VARGHESE

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SRI.C.I.ABRAHAM

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SRI.JOSE KURIAKOSE (VILANGATTIL)

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RESPONDENTS/PLAINTIFF AND DEFENDANTS:

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FRANCIS JOSEPH, AGED 79 YEARS S/O.FRANCIS, OORATH HOUSE, AMBALOOR VILLAGE KANAYANNUR TALUK.

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KARUNAN KITTAN, AGED 65 YEARS

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S/O.KITTAN, KANATTATHU HOUSE, AMBALOOR VILLAGE

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KANAYANNUR TALUK.

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AMBUJAKSHI KUMARAN, AGED 73 YEARS

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W/O.KUMARAN, KANATTATHU HOUSE, AMBALOOR VILLAGE KANAYANNUR TALUK.

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ELIAMMA AVARACHAN, AGED 54 YEARS W/O.LATE AVARACHAN, NEDUMPILLIL HOUSE AMBALOOR VILLAGE, KANAYANNUR TALUK.

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TINTU AVARACHAN, AGED 26 YEARS

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D/O..LATE AVARACHAN, NEDUMPILLIL HOUSE

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AMBALOOR VILLAGE, KANAYANNUR TALUK.

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EBIN AVARACHAN, AGED 23 YEARS

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D/O.LATE AVARACHAN, NEDUMPILLIL HOUSE

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AMBALOOR VILLAGE, KANAYANNUR TALUK.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01-06-2012, 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.575 of 2012

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Dated this 01^st day of June, 2012

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JUDGMENT

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Second defendant in O.S.No.1462 of 2003 of the Additional Munsiff's Court, Ernakulam is aggrieved by the judgment and decree of learned I Additional District Judge, Ernakulam in A.S.No.145 of 2009 granting prohibitory injunction against him and others trespassing into the plaint B schedule, in reversal of the judgment and decree of the trial court.

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First respondent/plaintiff claimed that he obtained plaint A schedule situated on the west of the panchayath road and plaint B schedule on the east of that road as per Will Nos.5/69 and 2/64. He contended that defendants are residing on the east of plaint B schedule. According to the plaintiff, there is 45 cents on the north-east of plaint B schedule in the joint ownership and possession of first defendant and his brothers, there was a partition among them in which a pathway was provided for access from the panchayath road to the said 45 cents. It is the further case of plaintiff that defendants closed that pathway and attempted to pass through plaint B schedule for access to the panchayath road. Defendants constructed steps

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R.S.A.No.575 of 2012

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-: 2 :-

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abutting plaint B schedule. Hence the suit for mandatory and prohibitory injunction.

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Defendants 1 to 5 contended that they are using the pathway through plaint B schedule since time immemorial, they have no other access to their properties and that they have easement by way of necessity and prescription. The second defendant purchased the share allotted to Kunjunni in the partition as per document No.265 of 1993.

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Trial court held that though plaintiff has a case that defendants have other means of access to the 45 cents belonging to them, Exts.C1 and C1(a), report and sketch submitted by the Advocate Commissioner do not reveal any such alternative way, nor had the plaintiff shown to the Commissioner any such alternative way. Trial court was also of the view that burden was on the plaintiff to show that defendants have other access than through plaint B schedule. Plaintiff did not discharge that burden of proof. Holding so, the suit was dismissed.

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Plaintiff took up the matter in appeal. First appellate court took a different view of the matter. It held that no plea of easement by way of necessity could be raised by the defendants since there is no plea or evidence of severance of tenements between plaint B schedule and the property of defendants. It also held that the plea of prescriptive easement is not

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R.S.A.No.575 of 2012

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-: 3 :-

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established. belonging to them. First appellate court observed that plaint B schedule is only 9 cents and that it is not likely that a way would be allowed through such small plot. First appellate court was of the view that it is usual for the people to walk through unenclosed land as a shortcut and that would not confer any right on anybody. Consequently first appellate court allowed the appeal in part, reversed the judgment and decree of the trial court and decreed the suit in part granting prohibitory injunction against defendants trespassing into plaint B schedule. That judgment and decree of the first appellate court are under challenge in this second appeal .

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Learned counsel for appellant/second defendant contends that second defendant purchased property as per document No.265 of 1993 from the legal heirs of Kunjunni who was allotted a share in the partition referred to in the plaint. It is contended that the view taken by the first appellate court is not correct since second defendant has not sought to declare any right as against the plaintiff. According to the learned counsel, Exts.C1 and C1(a) do not show that there is any alternative access for the second defendant, at any rate. It is also pointed out from Exts.C1 and C1(a) and the evidence of first respondent as PW1 that there is a way through plaint B schedule which the second defendant is using and that cannot be prevented.

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R.S.A.No.575 of 2012

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-: 4 :-

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May be, second defendant has not made any counter claim or has not sought any relief as against plaintiff. But, I must notice that as evidence goes and as it is not disputed, plaint B schedule absolutely belongs to the plaintiff and he is in possession thereof. Plaintiff is entitled to protect his title and possession of the suit property. When the second defendant claims that he has right of access, he has to prove that claim.

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Learned counsel at the time of argument submitted that on facts and evidence second defendant should have a right of access through plaint B schedule by way of necessity.

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Assuming that Exts.C1 and C1(a) or the evidence of plaintiff as PW1 do not show that there is any alternative way as pleaded by the plaintiff, it was necessary for the second defendant to show that there was severance of tenements between plaint B schedule and the property belonging to him. There is no such plea and evidence. Hence as rightly found by the first appellate court, question of easement by way of necessity does not arise.

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So far as the alleged long user of plaint B schedule is concerned, what is available is only the evidence of the 4^th defendant as DW1. Nobody from the neighbourhood was examined to prove the alleged, long user. Even the second defendant has not entered the witness box. In the circumstance

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R.S.A.No.575 of 2012

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-: 5 :-

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first appellate court was not inclined to accept the right second defendant and others claimed for access through plaint B schedule. It is relevant to note that defendants did not also produce the partition deed referred to in the plaint.

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I must also notice that plaint B schedule is only 9 cents situated on the east of the panchayath road. First appellate court has observed that so far as unenclosed land is concerned, it is usual that people walk through the said property as a shortcut and that would not confer any right on them.

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Learned counsel argued that though according to the plaintiff, defendants while partitioning the 45 cents has provided a right of access, plaintiff did not produced that partition deed. I am not inclined to think that it was the responsibility of the plaintiff to prove that there is alternative access for the second defendant or other defendants. I must also notice that admittedly second defendant purchased property from the legal heir of Kunjunni as per document No.265 of 1993 and the said Kunjunni is an allottee as per partition deed referred to in the plaint. If second defendant wanted to show that he has no other means of access, it was for him to produce the relevant documents. It is in the circumstances I have discussed above that first appellate court found in favour of the plaintiff and granted decree for prohibitory injunction.

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R.S.A.No.575 of 2012

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-: 6 :-

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Having heard learned counsel for appellant/second defendant, gone through the judgments under challenge and a copy of Ext.C1(a) shown to me for perusal, I do not find any substantial question of law involved in this appeal requiring its admission.

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The second appeal is dismissed.

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(THOMAS P. JOSEPH, JUDGE)

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Sbna/-

Raghavan v. Francis Joseph

Case brief

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Raghavan v. Francis Joseph

Case brief

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What did the court decide?

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