Dismissed

Cisy v. Rani Xavier

Kerala HC28 Jan 2016RSA/1339/2015

Case brief

AI extract

What is this about?

In this second appeal, the Kerala High Court dismissed the plaintiffs' challenge to the lower courts' decree. The lower courts found that plaintiffs failed to establish an understanding for pathway use and that sale deeds showed the boundary as defendants' property, reversing the plaintiffs' suit and upholding the defendants' counter-claim for injunction.

What did the court decide?

The second appeal was dismissed; interlocutory applications closed.

Cisy Vs Rani Xavier — 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 P.B.SURESH KUMAR

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THURSDAY, THE 28TH DAY OF JANUARY 2016/8TH MAGHA, 1937

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RSA.No. 1339 of 2015 (A)

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JUDGMENT DATED 10/2/2015 IN AS 123/2013 OF ADDITIONAL DISTRICT COURT, KOTTAYAM JUDGMENT DATED 27.3.2013 IN OS 254/2012 OF PRINCIPAL MUNSIFF COURT, KOTTAYAM

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APPELLANT(S)/PLAINTIFFS/COUNTER CLAIM RESPONDENTS:

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1. CISY, AGED 45 YEARS, W/O MATHUKUTTY JOSE, VELLAPILLIL HOUSE, ANICKADU VADAKKUMBHAGOM KARA, CHENGALALM EAST P.O., KOTTAYAM TALUK, KOTTAYAM DISTRICT.

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2. MATHUKUTTY JOSE, AGED 51 YEARS, S/O JOSEPH, RESIDING AT VELLAPILLIL HOUSE ANICKADU VADAKKUMBHAGOM KARA, CHENGALALM EAST P.O., KOTTAYAM TALUK, KOTTAYAM DISTRICT.

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BY ADVS.SRI.SAJEEVAN KURUKKUTTIYULLATHIL SMT.SARITHA THOMAS

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RESPONDENT(S)/RESPONDENTS/DEFENDANTS COUNTER CLAIMANTS:

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1. RANI XAVIER, AGED ABOUT 48 YEARS, W/O. JACOB XAVIER, RESIDING AT KAYYALAKKAKATHU HOUSE, PALA P.O., PALA MUNICIPALITY, MEENACHIL TALUK, KOTTAYAM DISTRICT - 686 685.

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2. JACOB XAVIER,

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S/O. CHACKO, RESIDING AT KAYYALAKKAKATHU HOUSE, PALA P.O., PALA MUNICIPALITY, MEENACHIL TALUK, KOTTAYAM DISTRICT - 686 685.

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BY ADV. SRI.ABRAHAM GEORGE JACOB

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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msv/

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P.B.SURESH KUMAR, J.

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

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R.S.A.No.1339 of 2015.

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

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Dated this the 28^th day of January, 2016.

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J U D G M E N T

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The plaintiffs in a suit for injunction are the appellants in this second appeal.

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The plaint schedule item Nos.1 to 4 properties belong to the plaintiffs. Among the said properties, the plaint schedule item Nos.1 and 2 belong to the first plaintiff and the plaint schedule item Nos.3 and 4 belong to the second plaintiff. The second plaintiff is the wife of the first plaintiff. The plaint schedule item No.5 is described in the plaint as a pathway lying in the east-west direction between the plaint schedule item No.4 property on its north and the plaint schedule item Nos.1 to 3 properties on its south. The plaint schedule item Nos.1 to 3 properties have been purchased by the plaintiffs from the defendants,

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RSA.No.1339/2015.

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who had a large extent of property called Ka yyalakkakom purayidom on the east and south of the said properties. The case of the plaintiffs is that at the time when the plaint schedule item Nos.1 to 3 properties were purchased, there was an understanding between the plaintiffs and the defendants that the plaintiffs will be permitted to use the plaint schedule item No.5 property for access to plaint schedule item No.4 property from the plaint schedule item Nos.1 to 3 properties. The defendants resisted the suit contending that the property described as pathway in the plaint schedule item No.5 is not a pathway, but part of the property owned and possessed by them. They also contended that there was no understanding between the parties as claimed by the plaintiffs for the user of the plaint schedule item No.5 property/pathway. The defendants have also claimed a decree of permanent prohibitory injunction restraining the plaintiffs from trespassing into the plaint schedule item No.5 property/pathway, by way of counter

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RSA.No.1339/2015.

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claim. The trial court accepted the case of the defendants and dismissed the suit and decreed the counter claim. Though, the plaintiffs took up the matter in appeal, the appellate court, on a reappraisal of the evidence on record, confirmed the decision of the trial court. Hence this second appeal by the plaintiffs.

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Heard the learned counsel for the appellants as also the learned counsel for the respondents.

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As noted above, the plaint schedule item

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No.5 property/pathway is lying in between the plaint schedule item Nos.1 to 3 properties on its south and the plaint schedule item No.4 property on its north. The case of the plaintiffs is that there was an understanding at the time when the plaint schedule item Nos.1 to 3 properties were purchased by them from the defendants that they can make use of the plaint schedule item No.5 property/pathway for access to the plaint schedule item No.4 property from plaint schedule item Nos.1 to 3 properties. The courts below

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RSA.No.1339/2015.

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concurrently found that the plaintiffs have not established the aforesaid understanding pleaded by them. Further, the sale deeds obtained by the plaintiffs from the defendants in respect of the plaint schedule item Nos.1 to 3 properties revealed that the northern boundary of the said properties is shown in the sale deeds as the property of the defendants and not as a pathway as contended by the plaintiffs.

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In the said view of the matter, I do not find any reason to interfere with the decisions impugned in this second appeal. There is no merit in the second appeal and the same is accordingly dismissed. All the interlocutory applications in the appeal are closed.

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Sd/-

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P.B.SURESH KUMAR,

JUDGE.

Kvs/-

// true copy //

PA TO JUDGE.

Cisy v. Rani Xavier

Case brief

What is this about?

What did the court decide?

Cisy v. Rani Xavier

Case brief

What is this about?

What did the court decide?

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