Partly allowed

C.K.Subaida v. Moideen Kunhi Haji

Kerala HC24 Nov 2016RSA/1178/2016

Case brief

AI extract

What is this about?

This Court allowed two regular second appeals regarding easement rights. It found that although unity of ownership existed, absolute necessity for an easement ceased due to the existence of a public pathway. The decree granting injunction was modified to exclude this public pathway from the restricted property boundaries.

What did the court decide?

The Regular Second Appeals are allowed in part. The decree granting injunction is modified to exclude the portion shown as AMNOPQRKLA in Ext.C2(a) sketch, allowing the appellant access to that pathway

C.K.Subaida Vs Moideen Kunhi Haji — Partition | 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 K.HARILAL

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THURSDAY, THE 24TH DAY OF NOVEMBER 2016/3RD AGRAHAYANA, 1938

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RSA.NO. 1178 OF 2016 (F)

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AGAINST THE JUDGMENT AND DECREE DATED 28.07.2016 IN A.S. NO. 28 OF 2013 OF THE SUB COURT, KANNUR

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AGAINST THE JUDGMENT AND DECREE DATED 11.03.2013 IN O.S. NO. 166 OF 2010 OF THE PRINCIPAL MUNSIFF'S COURT,KANNUR

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APPELLANT/APPELLANT/PLAINTIFF:

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C.K.SUBAIDA, W/O.HAMZA, AGED 50 YEARS, CHANDROTH HOUSE, PALLIPARAMBA, KODIPOYIL, KOLACHERI P.O., KOLACHERI AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT-670601.

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BY ADVS.SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH

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RESPONDENT/RESPONDENTS/DEFENDANTS:

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1. MOIDEEN KUNHI HAJI, S/O.KADIYA, AGED 85 YEARS, CHANDROTH HOUSE, KOTTALI, CHEKKIKULAM P.O., KOODALI (VIA), MANIYOOR AMSOM, KANNUR DISTRICT-670592.

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2. C.K.ERAMULLAN, S/O.MOIDEEN KUTTY, AGED 65 YEARS, CHANDROTH HOUSE, KOTTALI, CHEKKIKULAM P.O., KOODALI VIA, MANIYOOR AMSOM, KANNUR DISTRICT-670592.

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BY ADV. SRI.P.U..SHAILAJAN (CAVEATOR) R1 BY ADV. SRI.M.SURESH KUMAR (CAVEATOR) BY ADV. SMT.K.B.REKHA (CAVEATOR) BY ADV. D N NISHANI (CAVEATOR) BY ADV. SRI.V.SREEJITH (K/1398/2000) (CAVEATOR) R1 BY ADV. SRI.P.U.SHAILAJAN

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24-11-2016, ALONG WITH R.S.A.NOS.1182 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL, J.

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= = = = = = = = = = = = = = = = = = = = = R.S.A.Nos.1178 of 2016 & 1182 of 2016

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- - - - - -- - - - - - - - - - - - - - - - - - - - Dated this the 24th day of November, 2016

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J U D G M E N T

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Since the parties are common and the matters in

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issue involved in both appeals are one and the same, these appeals are heard together and disposed of accordingly.

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The appellant is the plaintiff in O.S.

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No.166 of 2010 and the defendant in O.S. No.185 of 2010 on the files of the Principal Munsiff's Court, Kannur. O.S. No.166 of 2010 is a suit for simple injunction, restraining the defendants, who are the respondents herein and their men, agents, assignors etc. from making any obstruction or blockage in the plaint schedule property or from causing obstruction to the peaceful enjoyment of the same by the plaintiff. O.S. No.185 of 2010 was a suit filed by

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the respondents herein against the plaintiff in O.S.

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R.S.A.Nos.1178 of 2016 & 1182 of 2016

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No.166 of 2010 seeking for a decree, restraining him

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from trespassing into the plaint schedule property, making any obstruction to the construction of the compound wall to the plaint schedule property, forming road and plying vehicles through the plaint schedule property and committing waste in the plaint schedule property. The trial court tried both cases jointly and after trial decreed O.S. No.185 of 2010, as prayed for and dismissed O.S. No.166 of 2010.

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Feeling aggrieved, though the appellant herein had preferred A.S. No.28 of 2013, challenging a decree and judgment passed in O.S. No.166 of 2010 and A.S. No.48 of 2013, challenging the decree and judgment passed in O.S. No.185 of 2010 before the Sub Court, Kannur, after re-appreciating the evidence on record, the court below affirmed the findings of the trial court and dismissed both

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R.S.A.Nos.1178 of 2016 & 1182 of 2016

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-: 3 :-

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appeals. Thus, the concurrent findings are under challenge in these Regular Second Appeals.

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Though, these appeals are filed

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challenging various findings, whereby the courts below rejected the appellant's claim for an easement right of way by necessity, this Court is not inclined to re-appreciate the entire evidence on record under Section 100 of the Code of Civil Procedure, 1908. Going by the impugned judgment passed by the courts below, it is the specific case of the appellant/plaintiff that both plaint 'A' and 'B' schedule properties belonged to a common owner and both properties were lying contiguously as single plot and later the properties were divided by Ext.B1 partition deed and subsequently, by Ext.A1 partition deed also. Thus, the severance of tenements and unity of ownership can be derived from

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R.S.A.Nos.1178 of 2016 & 1182 of 2016

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-: 4 :-

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Exts.A1 and B1.

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It is also contended that there is no way

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other than plaint 'C' schedule pathway, which passes though 'B' schedule property for the egress and ingress of the appellant to 'A' schedule property from public road, which lies on the eastern side. Thus, in the absence of alternative way and on proof of severance of tenements and unity of ownership the appellant is entitled to get injunction, restraining the respondents from obstructing his usage of schedule pathway for the egress and ingress to 'A' schedule property.

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On the other hand, in the written statement as well as in the plaint O.S. No.185 of 2010, the respondents denied the unity of common ownership and severance of tenements as contended by the appellant. According to them, the plaint description

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R.S.A.Nos.1178 of 2016 & 1182 of 2016

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-: 5 :-

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and the boundaries shown in the plaint 'A' schedule

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are not correct. It is specifically contended that the plaint 'B' schedule property lies on the southern side of plaint 'A' schedule property and it is not on the eastern side as averred in the plaint description. According to the respondents, they had already provided a 3 feet width pathway through their property to plaint 'A' schedule property and the appellant has been enjoying the said pathway for the egress and ingress of his property from the public pathway, which lies on southern side to plaint 'A' schedule property. Thus, there is no absolute necessity and the necessity ceases to exists when they provided 3 feet width pathway through their property to the appellant.

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On the aforesaid rival pleadings, both

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parties adduced evidence both oral and documentary

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R.S.A.Nos.1178 of 2016 & 1182 of 2016

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and after re-appreciating the entire evidence on record, both courts found that severance of tenements is not proved and there is an alternative way on the southern side of plaint 'A' schedule property and absolute necessity ceases to exists on the commencement of the public way on the southern side of the plaint 'A' schedule property and on the northern side of plaint 'B' schedule property. In short, the aforesaid pathway lies in between plaint 'A' and 'B' schedule properties. It was also found that the boundaries shown in the plaint in O.S. No.166 of 2010 are not correct. As rightly contended by the respondents, 'B' schedule property lies on the southern side of 'A' schedule property and the disputed pathway lies in the north-south direction and not on east-west direction, as shown in the plaint 'C' schedule.

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R.S.A.Nos.1178 of 2016 & 1182 of 2016

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-: 7 :-

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The learned counsel for the appellant

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advanced arguments contending that the concurrent findings of the court below that the appellant has failed to prove unity of ownership and the severance of tenements is not correct and the learned counsel drew my attention to Exts.B1 and A1.

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Per contra, the learned counsel for the respondents advanced arguments to justify the aforesaid findings of the courts below. Going by the contention raised in the written statement, it could

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be seen that the respondents have not seriously disputed the severance of tenements and the unity of ownership and they also admitted that once plaint 'A' and 'B' properties belonged to common ownership

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and subsequently, partition was effected under Ext.B1 and the defendants also derive their title from Ext.B1. Thus, admittedly, Ext.B1 partition deed

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R.S.A.Nos.1178 of 2016 & 1182 of 2016

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-: 8 :-

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is the prior title deed from which both the

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appellant and respondents derive t itle for plaint and schedule 'B' schedule properties. In view of the admitted evidence on record, the courts below are not justified in finding that the appellant has not proved the severance of tenements and unity of ownership provided under Section 13 of the Indian Easement Act,1882.

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Coming to the existence of alternative way, the courts below concurrently found that the description and the boundaries shown in the plaint in O.S. No.166 of 2010 is not correct and the boundaries and the direction of the way, as contended by the respondents was correct. The appellant also admitted in evidence that the boundaries of plaint 'A' schedule property in his plaint is not correct and plaint 'B' schedule

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R.S.A.Nos.1178 of 2016 & 1182 of 2016

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-: 9 :-

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property lies on the southern side of plaint 'A'

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schedule property, as contended by the respondents and he had committed mistake in describing the

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boundaries. It has come out in evidence that the existence of a public pathway on the northern side of plaint 'A' schedule property and on the southern side of 'B' schedule property. In other words, the said pathway lies in between plaint 'A' and 'B' schedule properties in east-west direction.

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In Ext.C2 commission report and Ext.C2(a) sketch, Commissioner has specifically reported existence of public pathway in between plaint 'A' and 'B' schedule properties and the said pathway provides direct access to the plaint 'A' schedule

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property and the said pathway is shown as 'AMNOPQRKLA'. Going by Ext.C2 commission report and Ext.C2(a) sketch, it is seen that as contended by

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R.S.A.Nos.1178 of 2016 & 1182 of 2016

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-: 10 :-

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the defendants, the public pathway, which is

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described as 'AMNOPQRKLA' lies adjacently on the southern side plaint of 'A' schedule property. The respondents have contended that they have provided 3 feet width land also to provide such a pathway when the appellant constructed house in plaint 'A' schedule property 10 years back. However, the existence of public pathway in between plaint 'A' and plaint 'B' schedule properties stands proved beyond doubt and it can be safely concluded that absolute necessity ceases to exists by the formation of the aforesaid public pathway. Thus, the courts below are justified in finding that the appellant is not entitled to get the easement right of way by necessity.

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But, the learned counsel for the appellant contended that the court below went wrong in

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R.S.A.Nos.1178 of 2016 & 1182 of 2016

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-: 11 :-

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granting injunction to the entire property shown in

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the plaint schedule in O.S. No.185 of 2010. It is contended that as per the description of plaint schedule property in O.S. No.185 of 2010, the northern boundary is shown as property of the plaintiff in O.S. No.166 of 2010. Apparently, the said description of boundary is not correct in view of Ext.C2(a) sketch and concurrent findings of the courts below. It stands proved by the evidence on record, beyond doubt that the northern boundary of plaint 'B' schedule is the public pathway, which is described as 'AMNOPQRKLA' in Ext.C2(a) sketch. But, the trial court without noticing the falsity in the description of plaint schedule in O.S. No.185 of 2010 granted injunction to the respondents restraining the appellant from trespassing into entire 'B' schedule property extending up to the

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R.S.A.Nos.1178 of 2016 & 1182 of 2016

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southern boundary of plaint 'A' schedule property in O.S. No.166 of 2010. The respondents themselves admitted the existence of public pathway as 'AMNOPQRKLA' reported in commission report. Needless to say, 'AMNOPQRKLA' shown in Ext.C2(a) sketch is a bit of land not in possession of the respondents and they are not entitled to get injunction with respect to the said portion, which lies as a pathway and shown in Ext.C2(a) sketch. Consequently, this Court is inclined to modify the extent of property for which the injunction has been granted by the courts below.

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Thus, the prohibitory injunction granted by the courts below will stand modified excluding 'AMNOPQRKLA' portion shown in Ext.C2(a) sketch. In other words, the appellant has right to enjoy that portion shown in the commission report for the

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R.S.A.Nos.1178 of 2016 & 1182 of 2016

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-: 13 :-

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egress and ingress to plaint 'A' schedule property

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in O.S. No.166 of 2010 and the defendants have no

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right to make any obstruction to said enjoyment of pathway. Consequently, the decree granting injunction passed by the courts below will stand modified to the above extent, excluding 'AMNOPQRKLA' portion shown in Ext.C2(a) sketch.

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These Regular Second Appeals are allowed in part to the above extent only.

Sd/-

K. HARILAL,

JUDGE

DST

//True copy//

P.A. To Judge

C.K.Subaida v. Moideen Kunhi Haji

Case brief

What is this about?

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C.K.Subaida v. Moideen Kunhi Haji

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