Dismissed

Baby @ Varghese v. Jony

Kerala HC23 Nov 2016RSA/1143/2016

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a regular second appeal against decrees dismissing a suit for injunction regarding a right of way. The court reaffirmed that the plaintiff had no valid easement by grant over the pathway as the assignor lacked proprietary rights over that specific land portion.

What did the court decide?

The regular second appeal was dismissed; findings of lower courts regarding no easement were affirmed.

Baby @ Varghese Vs Jony — Property and Title | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE K.HARILAL

¶4

WEDNESDAY, THE 23RD DAY OF NOVEMBER 2016/2ND AGRAHAYANA, 1938

¶5

RSA.No. 1143 of 2016 ()

¶6

AGAINST THE JUDGMENT & DECREE DATED 18-03-2016 IN AS 59/2014 of II ADDL.SUB COURT, ERNAKULAM

¶7

AGAINST THE JUDGMENT & DECREE DATED 29-03-2014 IN OS 882/2010 of PRL. MUNSIFF COURT, ERNAKULAM

¶8

APPELLANT/APPELLANT/PLAINTIFF:

¶9

BABY @ VARGHESE,

¶10

AGED 65 YEARS, S/O.PARINCHUNNI, PALAYUR HOUSE, NOW RESIDING AT C.C.NO.62/1992, KATTAKKARA WEST, ATHIPARAMBU LANE, KALOOR, KOCHI-682017, ELAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.

¶11

BY ADVS.SRI.K.J.KURIACHAN SRI.SUNIL JACOB

¶12

RESPONDENT(S)/RESPONDENTS/DEFENDANTS:

¶13

JONY, AGED ABOUT 56 YEARS, S/O.LATE XAVIER, VELLEPARAMBIL, KATTAKKARA WEST, KALOOR, KOCHI-17, ELAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.

¶14

ROSY JONY,

¶15

AGED ABOUT 51 YEARS, W/O.JONY, VELLEPARAMBIL, KATTAKKARA WEST, KALOOR, KOCHI-17, ELAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.

¶16

RIGIL @ RAJU, AGED ABOUT 26 YEARS, S/O.JONY, VELLEPARAMBIL, KATTAKKARA WEST, KALOOR, KOCHI-17, ELAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.

¶17

SARAMMA XAVIER, AGED ABOUT 76 YEARS, W/O.LATE XAVIER, VELLEPARAMBIL, KATTAKKARA WEST, KALOOR, KOCHI-17, ELAMKULAM VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.

¶18

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23-112016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶19

OKB

¶20

K.HARILAL, J.

¶21

R.S.A. No.1143 of 2016

¶22

Dated this the 23^rd day of November, 2016

¶23

JUDGMENT

¶24

The appellant is the plaintiff in O.S.No.882/2010 on the files of the Principal Munsiff's Court, Ernakulam. The said suit is one for injunction simpliciter. According to the plaintiff, he is the owner in possession of 8.142 cents of land described as A schedule in the plaint and he obtained the said property by virtue of sale deed No.952/2002 of S.R.O., Ernakulam. He constructed a residential building in the property and is residing there along with his family. The defendants are residing on the western side of plaint A schedule property. The said property originally belonged to the father of the 1^st defendant late Xavier by virtue of partition deed No.565/1962 and after the death of Xavier the right of the property devolved upon the first and fourth defendants. The defendants are residing in the house situated in that property. The vendor of the plaint

¶25

RSA.1143/16 :2:

¶26

schedule property to the plaintiff is one Francis, who is the brother of the late Xavier, from whom the defendants inherited the western property. The assignor had granted a right of way to the plaintiff through A schedule property and the said way has been specifically described in Ext.A2 sale deed and the said way is having a width of 0.9 metre and it runs along the northern and eastern boundaries of plaint A schedule property at a length of 20 metres. Thus, the plaintiff has been granted the right to use the way for the ingress and egress to the plaint schedule property from public road lying on the east and the said way is described as plaint B schedule. The defendants are also having right to use the said way. But, during the third week of August 2010, the first defendant approached the plaintiff with a request to concrete the plaint B schedule way. Thereafter the 3^rd defendant attempted to close down the B schedule way with a mala fide intention to cause obstruction to the user of the B schedule way by the plaintiff. Hence the suit was filed for a permanent prohibitory injunction restraining the defendants and men from fixing a gate in the plaint B schedule property.

¶27

RSA.1143/16 :3:

¶28

The defendants contended that B schedule pathway is a private pathway exclusively used by the defendants and their family members. According to them, the plaintiff has no right to use the said pathway as it is a private way for the beneficial enjoyment of the defendants alone. The plaintiff's predecessor Francis had never claimed any claim in his lifetime to use the pathway and he has not granted the right to use the pathway in Ext.A2. Thus, the plaintiff has no right to use the B schedule pathway as an easement right by grant. Actually, the said pathway was provided by Vakkachan and Theresa, who are the owners of the property on the northern side. They gave a pathway of 2.5 metres width and 14.6 metres length at the northern boundary of the property of Francis, from whom the plaintiff purchased the plaint schedule property. Thus, the plaintiff's predecessor-in-interest had no right over the northern pathway having an extent of 2.5 metres.

¶29

On the aforesaid rival pleadings both parties adduced evidence consisting of the oral testimonies of P.Ws.1 to 3 and D.W.1 and Exts.A1 to A6, B1 and C1 & C2.

¶30

RSA.1143/16 :4:

¶31

After considering the aforesaid evidence on record, the trial court dismissed the suit and in appeal the lower appellate court, after re-appreciating the evidence on record, concurred with the findings of the trial court. The concurrent findings of the courts below are under challenge in this Regular Second Appeal.

¶32

Heard the learned counsel for the appellant and the learned counsel for the respondents.

¶33

According to the plaintiff, the right of way through the alleged plaint B schedule was originated as per Ext.A2. According to him, the assignor to Ext.A2 had granted the right of way through B schedule property to him, when he purchased the said property. As rightly pointed out by the court below, the plaintiff has not disclosed in the plaint as to who is the owner of the alleged B schedule pathway. If he himself is the owner of the said strip of land lying as a pathway, he is not entitled to claim easement right by grant. Therefore, it can be safely concluded that B schedule pathway, which is lying in 'L' shape, is not a part of plaint schedule property.

¶34

In the appeal memorandum filed before the lower

¶35

RSA.1143/16 :5:

¶36

appellate court, the plaintiff has specifically stated that the pathway described in the plaint does not belong to the defendants. It shows that the plaintiff has no case that the alleged B schedule way belongs to the defendants. The court below has meticulously examined the boundaries of the plaint schedule property shown in Ext.A2 sale deed and it is seen that its eastern boundary is shown as Corporation way. As rightly held by the court below, if the eastern boundary is a Corporation way, the claim of the plaintiff against the defendants on the basis of easement by grant is not sustainable. In short, the case of the plaintiff on the basis of easement by grant and the eastern boundary shown in Ext.A1 are mutually destructive.

¶37

If the assignor of the plaintiff had granted such a way outside his property as per Ext.A2, that right cannot be enforced, for the reason that the assignor had no right on that property to impose grant. The land owner alone can confer right of way by grant to an assignee by virtue of sale deed. So far as the portion of B schedule way indicated as 'H' in Ext.C2 plan, the plaintiff's predecessor-

¶38

RSA.1143/16 :6:

¶39

in-interest Francis had no right to give easement right by grant as he had no proprietary right over that portion of the land. In view of plot F shown in Ext.C2(a), the plaintiff cannot claim easement right of way for the reason that it is a part of his own property.

¶40

On the above analysis, it can be safely held that the right of way granted to the plaintiff as per Ext.A2 was not through B schedule way described in the plaint. That apart, Ext.A2 does not confer a valid grant of easement right of way. Thus, the court below has rightly appreciated the evidence on record in its correct perspective. I do not find any reason to interfere with the findings, whereby the courts below dismissed the original suit as well as the appeal suit. No question of law arises for consideration in this appeal. This appeal will stand dismissed.

¶41

All pending interlocutory applications will stand closed.

¶42

Sd/K.HARILAL, Judge.

¶43

okb

Baby @ Varghese v. Jony

Case brief

What is this about?

What did the court decide?

Baby @ Varghese v. Jony

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

E.T.Suresh Vs Sr.Fidas Thottan

Thressiamma Vs Annam

Kunhimuideenkutty @ Kunhappu Vs Thitheemu Umma

P.G Janardhanan Vs Janardhanan

Varghese Vs Joseph Thomas

B.Gopalakrishna Bhat Vs K.Gowri