Disposed

Krishna Pillai v. Sasidharan Pillai

Kerala HC12 Feb 2016FAO/173/2015

Case brief

AI extract

What is this about?

The High Court recorded undertakings by parties in a pending appeal regarding car access. The defendants agreed to remove pillars blocking the car exit, while plaintiffs agreed not to use the disputed pathway until the appeal is decided, directing the appellate court to dispose of the matter expeditiously.

What did the court decide?

Appellants to remove pillars within a week; Respondents not to use the pathway until final disposal; Appellate court to dispose of appeal within six weeks.

Krishna Pillai Vs Sasidharan Pillai — Property and Title | Kerala HC (2016)

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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 P.B.SURESH KUMAR

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FRIDAY, THE 12TH DAY OF FEBRUARY 2016/23RD MAGHA, 1937

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FAO.No. 173 of 2015

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AGAINST THE ORDER IN I.A.NO.414/2015 IN A.S.NO.113/2015 OF THE ADDITIONAL DISTRICT COURT-II, MAVELIKKARA

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APPELLANT(S)/RESPONDENTS 1 AND 2/DEFENDANTS 1 & 2 :

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1. KRISHNA PILLAI, AGED 83 YEARS, ALINTE PADEETATHIL VEEDU, THEKKE MANKUZHI MURI, BHARANIKAVU VILLAGE- 630 537.

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2. SAVITHRI AMMA, AGED 48 YEARS, W/O. SOMAN PILLAI, ALINTE PADEETATHIL VEEDU, THEKKE MANKUZHI MURI, BHARANIKAVU VILLAGE- 630 537.

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BY ADV. SRI.SUNNY ZACHARIAH

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RESPONDENT(S)/APPELLANTS 1 AND 2 AND RESPONDENT NO.3/PLAINTIFFS 1 & 2 AND DEFENDANT NO.3 :

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1. SASIDHARAN PILLAI, AGED 60 YEARS, S/O. SANKARA PILLAI, ALINTE PADEETATHIL VEEDU, THEKKE MANKUZHI MURI, BHARANIKKAVU VILLAGE, PIN- 630 537.

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2. VIMALAMMA, AGED 55 YEARS, W/O. SASIDHARAN PILLAI, ALINTE PADEETATHIL VEEDU, THEKKE MANKUZHI MURI, BHARANIKAVU VILLAGE, PIN- 630 531.

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3. SOMAN PILLAI, AGED 50 YEARS, S/O.KRISHNA PILLAI, ALINTE PADEETATHIL VEEDU, THEKKE MANKUZHI MURI, BHARANIKAVU VILLAGE, PIN- 630 537.

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R1 TO R2 BY ADVS. SRI.R.SUNIL KUMAR

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SMT.A.SALINI LAL

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 12-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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P.B.SURESH KUMAR, J.

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= = = = = = = = = = = =

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F.A.O.No.173 of 2015.

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= = = = = = = = = = = =

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Dated this the 12^th day of February, 2016.

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J U D G M E N T

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The Order on I.A.No.414 of 2015 in A.S.No.113 of

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2015 on the file of the District Court, Mavelikkara is under challenge in this appeal.

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A.S.No.113 of 2015 is an appeal preferred challenging the decision in O.S.No.155 of 2012 on the file of the Munsiff's Court, Kayamkulam. The appellants in A.S.No.113 of 2015 are the plaintiffs in O.S.No.155 of 2012. The said suit was one for declaration of the right of easement claimed by the plaintiffs over the plaint C schedule pathway and for injunction. The plaint A schedule property belongs to the plaintiffs and the plaint B schedule property belongs to the defendants. The plaint C schedule pathway is a portion of plaint B schedule property. According to the plaintiffs, they are using the plaint C schedule pathway for access to plaint A schedule property from

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FAO.No.173/2015.

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Koprappura-Krishnapuram public road and that the width of the said pathway is 7 to 8 feet. The suit was filed alleging that the defendants are causing obstructions to the user of the plaint C schedule pathway. The defendants resisted the suit. The fact that there exists a pathway through the plaint B schedule property is not disputed by the defendants. The contention of the defendants, on the other hand, was only regarding the width of the said pathway. According to the defendants, the width of the plaint C schedule pathway was originally 3 feet and the same was widened to 5 feet by the defendants subsequently by surrendering a portion of their property. In other words, according to the defendants, the width of the pathway described in the plaint C schedule is only 5 feet and not 7 to 8 feet as contended by the plaintiffs. The Advocate Commissioner appointed in the suit for local inspection filed a report and plan. Based on the materials on record, the trial court decreed the suit declaring the prescriptive right of easement of the plaintiffs over a portion of the plaint C schedule pathway having the width of 5 feet. Consequent injunction was also granted in favour of the plaintiffs.

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FAO.No.173/2015.

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The plaintiffs, who are aggrieved by the decision of the trial court, took up the matter in appeal. In the meanwhile, the defendants erected a few pillars on the boundary of the plaint B schedule property leaving 5 feet width for the plaint C schedule pathway in tune with the decision of the trial court. The plaintiffs, thereupon, filed I.A.No.414 of 2015 in the appeal seeking an order of mandatory injunction directing the defendants to remove the pillars erected by them on the boundary of the plaint B schedule property. The grievance highlighted by the plaintiffs in the above interlocutory application was that in view of the said conduct of the defendants, the plaintiffs are unable to take out their car from the house situated in the plaint A schedule property. The appellate court again appointed the Advocate Commissioner who inspected the plaint schedule properties in the course of the trial, to conduct a fresh local inspection and the Advocate Commissioner confirmed that in view of the conduct of the defendants in erecting pillars on the boundary of the plaint B schedule property, the plaintiffs are unable to take their car from their house. In the light of the report of the Advocate Commissioner, the appellate court took

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FAO.No.173/2015.

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the view that the defendants have altered the status quo in regard to the way through plaint B schedule property as on the date of the plaint and consequently directed the defendants to remove the pillars erected by them on the boundary of their property. The defendants, who are aggrieved by the said decision of the appellate court, have come up in this appeal.

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Heard the learned counsel for the appellants as

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also the learned counsel for respondents 1 and 2 elaborately on 28.10.2015.

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On hearing the learned counsel on either side

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elaborately, I am of the view that a decision on the rival submissions made at the Bar would certainly affect a fair disposal of the pending appeal and therefore, in the light of the facts and circumstances of the case, what is expected from this Court is only a direction to the appellate court to dispose of the appeal on merits expeditiously. But, since it is not disputed that

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the plaintiffs are unable to take out their car from their house on account of the conduct on the part of the defendants in erecting pillars on the boundary of their property, I have suggested the learned counsel for the defendants to remove the pillars erected

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FAO.No.173/2015.

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by them on the boundary of plaint B schedule property without prejudice to thei r contentions taken in the appeal, so as to enable the plaintiffs to remove their car from their house. Likewise, I have also suggested the learned counsel for the plaintiffs to refrain from using the plaint C schedule pathway for plying their car after the removal of the pillars by the defendants till the disposal of the appeal, without prejudice to contentions of the plaintiffs in the appeal. The matter was adjourned thereafter to enable the counsel to get instructions from their parties.

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Today, when the matter was taken up for hearing, the learned counsel on either side agreed to the suggestions made by the Court. The learned counsel for the defendants undertook that the defendants would remove the pillars erected by them on the boundary of plaint B schedule property so as to enable the plaintiffs to remove their car from their house and the learned counsel for the plaintiffs undertook that the plaintiffs will not use plaint C schedule pathway for plying their car till the disposal of the appeal. The undertakings as aforesaid were made without prejudice to the contentions taken by the parties in the pending appeal. The undertakings are recorded. In the light of

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FAO.No.173/2015.

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the undertakings made by the parties, the appeal is disposed of as follows:

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(i) The appellants/defendants shall remove the pillars erected by them on the boundary of plaint B schedule property within a week from today, so as to enable the plaintiffs to remove their car from the plaint A schedule property.

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(ii) The respondents/plaintiffs shall not use the plaint C schedule pathway for plying their car till the final disposal of A.S.No.113 of 2015.

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(iii) The appellate court shall dispose of A.S.No.113 of 2015, within six weeks from the date of receipt of a copy of this judgment, untrammelled by the undertakings made by the parties before this Court and its compliance.

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Sd/- P.B.SURESH KUMAR, JUDGE.

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Kvs/-

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// true copy //

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PA TO JUDGE.

Krishna Pillai v. Sasidharan Pillai

Case brief

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Krishna Pillai v. Sasidharan Pillai

Case brief

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