Dismissed

M.Karunakaran v. Ransha v

Kerala HC22 Jan 2014RSA/817/2013

Case brief

AI extract

What is this about?

This Regular Second Appeal challenges orders dismissing a suit for declaration of easement and injunction. The Court held that the plaintiff failed to prove an easement right by prescription for a 3-foot pathway but allowed him to use an existing 2-foot pathway shown in the Commissioner's plan. The RSA was dismissed, with specific instructions on pathway usage.

What did the court decide?

The Regular Second Appeal is dismissed. The appellant is permitted to use the existing pathway of 2 feet width as shown in the Commissioner's plan.

M.Karunakaran Vs Ransha v — Property and Title | Kerala HC (2014)

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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 N.K.BALAKRISHNAN

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WEDNESDAY, THE 22ND DAY OF JANUARY 2014/2ND MAGHA, 1935

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RSA.No. 817 of 2013 ()

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--------------------------------AGAINST THE JUDGMENT IN AS 80/2010 of ADDL. DISTRICT COURT. KOZHIKODE- II DATED 20-12-2012

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AGAINST THE JUDGMENT IN OS 115/2009 of ADDL.MUNSIFF COURT.,KOZHIKODE-I DATED 09-03-2010

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APPELLANT(S)/APPELLANT/PLAINTIFF:

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M.KARUNAKARAN, AGED 74 YEARS,

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S/O.MOOTHORANKUTTY, MADATHIL THAZHATH, MEKKOORIYALIL 'SAROVARAM', MAKKADA AMSOM DESOM, KOZHIKODE TALUK KOZHIKODE DISTRICT.

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BY ADV. SMT.K.DEEPA (PAYYANUR)

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RESPONDENT(S)/RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1. RANSHA V, AGED 32 YEARS W/O.MATTUVAYAL SHAJI, MAKKADA AMSOM DESOM KOZHIKODE TALUK, KOZHIKODE DISTRICT. 673 611.

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2. SURESAN, AGED 44 YEARS

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AGRICULTURIST, S/O.CHATHU, THEKKEYIL MAKKADA AMSOM DESOM, KOZHIKODE TALUK KOZHIKODE DISTRICT. 673 611.

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3. THEKKEYIL RAMESHAN, AGED 54 YEARS S/O.CHATHU, KUNIYIL HOUSE, NEAR KARAVALLIPADI P.O.MAKKADA, MAKKADA AMSOM DESOM, KOZHIKODE TALUK KOZHIKODE DISTRICT. 673 611.

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4. THEKKEYIL KISHORE, AGED 52 YEARS

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S/O.CHATHU, KUNIYIL HOUSE NEAR MAKKADA WEST A.L.P.SCHOOL, P.O.MAKKADA MAKKADA AMSOM DESOM, KOZHIKODE TALUK KOZHIKODE DISTRICT. 673 611.

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R1,R2,R3,R4,R BY ADV. SRI.P.R.SREEJITH R1,R2,R3,R4 BY ADV. SRI.M.PROMODH KUMAR

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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jvt

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N.K. BALAKRISHNAN, J.

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R.S.A. No. 817 of 2013

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Dated this the 22^nd day of January, 2014

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J U D G M E N T

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The plaintiff is the appellant. The suit was for

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declaration, mandatory and prohibitory injunction. The suit was dismissed by the trial court and it was confirmed by the appellate court.

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The plaintiff contends that the A schedule property belongs to him and is in his direct possession. The B schedule describes the pathway which, according to him, passes through the property of the defendants. In the plaint, it was contended that it has a width of 6 feet and a length of 26 meters. It was contended that from 1943 onwards, B schedule pathway was being used by the plaintiff and his predecessors-in-interest openly, peaceably and continuously, as of right and as of easement and without any interruption for more than 22 years. It was alleged that the 1^st defendant constructed a foundation

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R.S.A. No. 817 of 2013

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-: 2 :-

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without leaving the prescribed distance. It was also contended that a wall of granite stones was put up reducing the width of B schedule pathway. That portion was separately shown as C schedule. The 2^nd defendant also put up constructions encroaching into the B schedule way. That portion was shown as D schedule. Hence, the plaintiff sought mandatory injunction for removal of C and D schedule walls put up by D1 and D2 respectively. He also sought for a prohibitory injunction restraining the defendants from interfering with the plaintiff's user of the B schedule pathway and also not to reduce the width of the pathway.

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The suit was resisted by the defendants contending that the plaintiff is not entitled to get any easement right. The entire properties were paddy fields. There was only a ridge having a width of 1½ feet in between the property of the 1^st defendant and that of defendants 2 to 4. The width of the ridge was subsequently altered to 2 feet. The claim made by the plaintiff for

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R.S.A. No. 817 of 2013

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-: 3 :-

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mandatory and prohibitory injunction was denied.

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The Commissioner's report and plan were marked as Exhibits C1 to C3(b). Though the case originally pleaded by the plaintiff was that there is a pathway of a width of 6 feet starting from the public road on the north and through the defendant's property, a pathway of such a width could not be found by the Commissioner. Of course, it was contended by the plaintiff that the width was reduced by the defendants by putting up walls on either side of the pathway, the Commissioner could find a way having a width of 2 feet.

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The trial court found that there was/has been in existence a pathway on the western side of the 1^st defendant's property starting from the public road situated on the north which actually reaches the north western corner of the A schedule.

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The following substantial question of law arises for consideration:

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i. Having found the existence of a

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R.S.A. No. 817 of 2013

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-: 4 :-

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pathway of a width of 2 feet, are the courts below justified in declining the prayer for prohibitory and mandatory injunction, sought for in the plaint?

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In paragraph 6 of Ext.C3(a) the Advocate

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Commissioner reported that there was a pathway, the width of which was found to be 2 feet. It was also reported that the said pathway was bounded by the wall made up of laterite stones, the length of which was shown as 23.47 metres. It was reported by the Commissioner that, that pathway stops at a distance of half a foot away from the north western boundary of the plaintiff's property. Thus it is argued by the learned counsel for the appellant that the said pathway does not reach the plaintiff's property. It is also stated that there is a level difference and that the plaintiff's property is lower in level by about 1½ feet from the northern property.

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It is submitted by the learned counsel for respondents that there was, in fact, a step made of stones.

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R.S.A. No. 817 of 2013

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-: 5 :-

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On the eve of the Commissioner's inspection, that step was removed and placed above the property to make it appear that the pathway was not touching the plaintiff's property. If there was a pathway of a length of 23.47 metres it cannot be assumed that the pathway will stop at a distance of just half a foot away from the boundary of the plaintiff's property. The contention that the said pathway was not being used by the plaintiff, was found against by the courts below.

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It is true that if the claim is founded on easement right by prescription, the existence of an alternate way will not dis-entitle the plaintiff from getting the relief. But the existence of an alternate way will certainly have ratiocinative value because as could be seen from the lie of the property, the pathway mentioned above is just on the western side of the 1^st defendant's property starting from the road. Therefore, one cannot find any difficulty to have access through the way on the western side seen by the Advocate Commissioner.

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R.S.A. No. 817 of 2013

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-: 6 :-

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These aspects were highlighted by the courts below to hold that the contention raised by the plaintiff, that he has a right of easement by prescription, is unsustainable. It is submitted by the learned counsel for the appellant that the compound wall on either side of the pathway was put up on the eve of or subsequent to the filing of the suit and as such it cannot be said that a decree for mandatory injunction will cause undue hardship to the respondents.

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The learned counsel for the appellant would submit that the lie and position of the pathway claimed by the plaintiff and seen by the Advocate Commissioner is having a width of 2 feet. It was contended by the defendants that it was only a ridge of a width of 1½ feet. The appellant's counsel argues that for a reasonable use of the pathway it should have a width of atleast 3 feet. Hence, the learned counsel for the appellant now confines the relief to have a pathway of a width of 3 feet.

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It is pointed out that the case originally set up by the appellant was that there was a pathway of a width of 6

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R.S.A. No. 817 of 2013

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-: 7 :-

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feet and that it was used by the plaintiff. But the width of the pathway noted by the Commissioner, as the 'B' schedule, is only 2 feet. It is also pointed out that originally it was contended that the said pathway passes through the property of the first defendant, but later, the suggestion put to DW1 is to the effect that the pathway is situated in between the property of the first defendant and defendants 2 to 4. In other words, if that case is accepted, the said pathway should fall outside the property of the first defendant. There was no case that the 'B' schedule pathway was a public way. If the pathway does not pass through the property of the first defendant, how the plea of easement by prescription can be sustained is another pertinent question put by the learned counsel for the respondents. Since the plea was one of right of easement by prescription, the courts below did not sustain the plea raised by the appellant. There is no acceptable evidence to hold that there has been in existence a pathway of a width of 3 feet and that has been used without interruption and as of right and as an

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R.S.A. No. 817 of 2013

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-: 8 :-

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easement. But, however the fact remains that there is a pathway having a width of 2 feet starting from the road on the northern side and passing through the property of the first defendant to the property of the plaintiff. The respondents have no objection in the appellant using that pathway having a width of 2 feet.

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Though a suggestion was put to the appellant as to whether the appellant can provide an equal extent of land along the eastern boundary of his property so as to tack it on to the property of the first defendant so as to get the pathway widened to 3 feet or 4 feet, the appellant was not inclined.

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The concurrent finding of fact entered by the courts below that the appellant has failed to prove the easement right claimed over the 'B' schedule property is well merited. The claim for mandatory injunction was rightly declined by the courts below. In the light of what has been stated above, no substantial question of law arises for consideration in this RSA.

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R.S.A. No. 817 of 2013

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-: 9 :-

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In the result, this RSA is dismissed, but the

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appellant can use the pathway of a width of 2 feet as shown

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in Ext.C2(b) plan.

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Sd/ - N.K. BALAKRISHNAN, JUDGE.

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//True Copy//

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P.A. To Judge

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jjj/Jvt

M.Karunakaran v. Ransha v

Case brief

What is this about?

What did the court decide?

M.Karunakaran v. Ransha v

Case brief

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