Dismissed

Lakhmykutty Amma v. Meera

Kerala HC1 Aug 2012RSA/864/2012

Case brief

AI extract

What is this about?

In this second appeal, the appellant defendants challenged a decree granted in their favor regarding a property boundary dispute. The lower courts found the disputed way to be a private way of the plaintiffs' tavazhy and the defendants to have encroached. The High Court upheld the findings of fact, dismissed the appeal, and noted no substantial question of law was involved. All pending application

What did the court decide?

The second appeal was dismissed; all pending interlocutory applications were also dismissed.

Lakhmykutty Amma Vs Meera — Partition | 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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WEDNESDAY, THE 1ST DAY OF AUGUST 2012/10TH SRAVANA 1934

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RSA.No. 864 of 2012 ()

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AS.48/2005 of SUB COURT, TIRUR OS.141/2003 of MUNSIFF COURT, OTTAPPALAM

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APPELLANT(S)/APPELLANTS 1 TO 3 AND 5/DEFENDANTS 1 TO 3 AND 5:

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LAKHMYKUTTY AMMA,

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D/O.JANAKI AMMA,MANAVAZHI VEEDU,CHERPULASSERY AMSOM PANNIYAMKURISSI DESOM,OTTAPALAM TALUK

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PALAKKAD DISTRICT.

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SANTHAKUMARI,

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D/O.LAKSHMIKUTTY AMMA,CHERPULASSERY AMSOM PANNIYAMKURISSI DESOM,OTTAPALAM

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NOW RESIDING AT MANAVAZHIMELEMADATHIL HOUSE CHERPULASSERY(PO),CHERPULASSERY,PALAKKAD DISTRICT.

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MANIKANDAN,

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S/O.LAKSHMIKUTTY AMMA,CHERPULASSERY AMSOM PANNIYAMKURISSI DESOM,OTTAPALAM TALUK

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NOW RESIDINGAT MANAVAZHIMELEMADATHIL HOUSE CHERPULASSERY(PO),CHERPULASSERY,PALAKKAD DISTRICT.

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MURALIDHARAN,

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S/O.RUGMANI AMMA(LATE),CHERPULASSERY AMSOM PANNIYAMKURISSI AMSOM,OTTAPALAM TALUK NOW RESIDING AT “POURNAMI”,T.N.PURAM(PO) THIRUVAZHIYODU,PALAKKAD DISTRICT.

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BY ADVS.SRI.K.B.ARUNKUMAR

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SRI.RANJIT BABU

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RESPONDENT(S)/RESPONDENTS 1 AND 3 AND SUPPLEMENTARY RESPONDENTS 4 TO 12/PLAINTIFFS 2 AND 4:

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MEERA,

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D/O.MALATHI AMMA THEKKUPADATHU MADATHIL ALIAS MADATHIL CHERUPULASSERY AMSOM,PANNIYAMKURISSI DESOM OTTAPALAM TALUK,PIN-679503.

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LAKSHMI DEVI,

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D/O MALATHI AMMA,THEKKUPPATTU MADATHIL @ MADATHIL CHERUPULASSERY AMSOM,PANNIYAMKURISSI DESOM OTTAPALAM TALUK,PIN-679503.

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RSA NO.846/20121

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ASHOKAN,

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S/O.LATE RUGMINI AMMA,PB.NO.3665,DOHA QUARTER,NOW RESIDING AT PB NO.4130,DOHA QUARTER.

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JANAKIKUTTY, D/O.RUGMINI AMMA,W/O.MANI DOOR NO.39 EASWARAM KOVILSTREET,COIMBATORE-1 NOW RESIDING AT MANAVAZHIMELEMADATHIL HOUSE CHERPULASSERY(PO),CHERPULASSERY,PALAKKAD DISTRICT PIN-679503.

¶31

JAYAPRAKASH, S/O.RUGMANI AMMA,SIVAKRIPA,ANDRA COLONY KUMBLA,MANGLORE KARNATAKA NOW RESIDING AT SHIVAN GRAHA,SIVANAGRA MOODUSHEEDE,MANGLORE,KARNATAKA PIN-575028.

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BALAKRISHNAN @ BALU, S/O.RUGMANI AMMA,C/O.RAJAN NAIR,PB.NO.62122 DUBAI,UNITED ARAB EMIRATES NOW RESIDING AT MANAVAZHIMELEMADATHIL HOUSE CHERPULASSERY(PO),CHERPULASSERY,PALAKKAD DISTRICT PIN-679503.

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JAYA PRABHA @ JAYA,

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D/O.RUGMANI AMMA,NOW RESIDING AT PB.NO.49262,SHARJA UNITED ARAB EMIRATES.

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RAJALAKSHMI,

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W/O.VELAYUDHAN,RESIDING AT NO.53,6TH CROSS ANNA AYYAPPA BLOCK,BANGLORE-560346.

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ANILKUMAR,

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S/O.VELAYUDHAN ,RESIDING AT NO.53,6TH CROSS ANNA AYYAPPA BLOCK,BANGLORE-560346.

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AJITHKUMAR,

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S/O.VELAYUDHAN ,RESIDING AT NO.53,6TH CROSS ANNA AYYAPPA BLOCK,BANGLORE-560346.

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ANITHA LAL, S/O.VELAYUDHAN ,RESIDING AT NO.53,6TH CROSS ANNA AYYAPPA BLOCK,BANGLORE-560346.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01-08-2012, 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.864 of 2012

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Dated this the 1^st day of August, 2012.

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JUDGMENT

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The defendants 1 to 3 and 5 in O.S.No.141 of 2003 of the Munsiff's Court, Ottapalam are aggrieved by the decree in that suit as confirmed by the Sub Court, Ottapalam in A.S.No.48 of 2005.

¶48

The 1^st plaintiff and the 3^rd supplemental plaintiff died. Now the contest is between respondents 1 and 2/supplemental plaintiffs 2 and 4 and the appellants/defendants 1 to 3 and 5.

¶49

The plaintiffs filed the suit for a decree for prohibitory and mandatory injunction. They claimed that the plaint A schedule property belongs to them as per Ext.A1, partition deed No.1207 of 1977 and that they have purchased the jenm right over the property as per Ext.A2, purchase certificate. The plaint B schedule is a way which according to the plaintiffs starts from the Panchayat road on the east and reaches upto the plaint A schedule. It is the case of the plaintiffs that the plaint B schedule belongs to the tavazhy of the plaintiffs and that necessary direction is made in Ext.A1, partition deed as to the members of the tavazhy using the said way as before the partition. At the portion where the plaint B schedule entered the Panchayat road on the east, there was a gate installed on pillars. Plaintiffs removed that gate and replaced it a bit towards further west and thus there was a gap between the point where the plaint B schedule entered the Panchayat road and the gate subsequently

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RSA No.864/2012

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installed. The property on the north of the plaint B schedule belonged to the defendants. The defendants were using that gap portion with permission of the plaintiffs. They were maintaining the fence on the southern side of their property (on the north of the plaint B schedule). Later, trespassing into a portion of the plaint B schedule the defendants constructed a fence. The portion trespassed upon is described as the plaint C schedule.

¶53

The defendants contended that the plaint B schedule is an ancient 'idavazhy' which was transformed into the public way. It is not the private way of the tavazhy of the plaintiffs. That idavazhy had a width of 3 or 4 feet originally. Later the plaintiffs widened that idavazhy making use of portion of property of the defendants as well. Since that way abuts property of the defendants, they are entitled to access from the said way. They denied the allegation of trespass and construction of fence in the plaint B schedule. They also claimed that the plaint C schedule is part of their property.

¶54

The trial court on evidence found that the plaint B schedule is the private way belonging to the tavazhy of the plaintiffs and that it is used by the members of the tavazhy as per direction in Ext.A1. The trial court also found that the defendants have encroached into a portion of the plaint B schedule and constructed fence and accordingly a decree was granted in favour of the plaintiffs.

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RSA No.864/2012

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The defendants challenged that judgment and decree before the learned Sub Judge in A.S.No.48 of 2005. The learned Sub Judge concurred with the finding entered by the learned Munsiff.

¶58

It is contended by the learned counsel that after the trial court decree, the supplemental 4^th plaintiff has executed an assignment deed in favour of the brother of the 5^th defendant and that document would show that the plaint B schedule is a public way. It is also contended that the said document was produced in the first appeal along with I.A.No.144 of 2012. But, no order was passed on the said application. It is further contended that Exts.B2 and B3 would show that the plaint B schedule is a public way.

¶59

In Ext.A1, there is reference to the plaint B schedule way and directions to the members of the tavazhy as to how they should use that way as they were doing it before partition. Ext.A3 is the copy of the partition deed executed in the family of the defendants in the year, 1973. This is admitted by DW1 in his evidence. In Ext.A3, the southern boundary of the property of the defendants is described as ' മഠത�ല�യ��ള വഴ�' (meaning thereby the way leading to the tarwad of the plaintiffs). DW1 has in unmistakable terms stated that 'മഠത�ല�യ��ള വഴ�' referred as the southern boundary of the property which belonged to him is the plaint B schedule.

¶60

True that in Exts.B2 and B3, the assignment and mortgage deeds of the years, 1908 and 1909, respectively the southern boundary of property of the defendants is described as 'idavazhy'. But, from that, no inference is

¶61

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RSA No.864/2012

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possible that the plaint B schedule is a public way. Moreover, in Ext.A3 of the year, 1973 defendants themselves admitted that the plaint B schedule is the way leading to the tarwad of the plaintiffs. Therefore, the irresistible conclusion is that the plaint B schedule is the private way belonging to the tarwad of the plaintiffs.

¶64

Assuming that the supplemental 4^th plaintiff has executed an assignment deed in favour of the brother of the 6^th defendant describing the plaint B schedule as a private way, that cannot affect the other plaintiffs in the suit in whose favour the trial and first appellate courts have granted a decree. No doubt, the first appellate court ought to have disposed of I.A.No.144 of 2012 if it was not disposed of.

¶65

It is argued by the learned counsel that title of the plaintiffs over plaint A schedule is not proved. The plaintiffs have produced Exts.A1 and A2. Moreover, there was no serious dispute regarding title of the plaintiffs to the plaint A schedule the dispute being confined to the nature and character of the plaint B schedule, whether it is a private way as contended by the plaintiffs or a public way as contended by the defendants.

¶66

Exts.C1 and C1(a) are the report and sketch prepared by the Advocate Commissioner. The Advocate Commissioner has reported that average width of the plaint B schedule is 6.25 metres and at the corner point, the width is 9.85 metres. At the entrance portion of the plaint B schedule where the dispute is raised, the width was found to be 3.5 metres. Including the

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RSA No.864/2012 5

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encroached portion, the width of the way was found to be 5.5 metres. The trial court found that if the average width of the plaint B schedule is 6.5 metres, it is unlikely that at the disputed portion alone its width was only 3.5 metres. The trial court from the evidence concluded that there was trespass into the plaint B schedule. The decision of the trial court is confirmed by the first appellate court on evidence. The decision of the courts below is based on the facts and evidence and involves no substantial question of law.

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I make it clear that I have considered only the contentions the parties have raised in the plaint , written statement and as decided by the courts below.

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The Second Appeal is dismissed.

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All pending interlocutory applications will stand dismissed.

¶72

THOMAS P.JOSEPH, Judge.

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cks

Lakhmykutty Amma v. Meera

Case brief

What is this about?

What did the court decide?

Lakhmykutty Amma v. Meera

Case brief

What is this about?

What did the court decide?

What the court decided

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