Dismissed

Shelly v. Johny

Kerala HC8 Jan 2016RSA/34/2015

Case brief

AI extract

What is this about?

In this regular second appeal, the High Court of Kerala dismissed the appellants' challenge to an appellate decree that declared and decreed a plaintiffs' right of easement by prescription over a pathway to access their property. The court held that absence of record regarding other access justified inferring continuous use.

What did the court decide?

The regular second appeal was dismissed; all interlocutory applications in the appeal were closed.

Shelly Vs Johny — 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 8TH DAY OF JANUARY 2016/18TH POUSHA, 1937

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RSA.No. 34 of 2015 ()

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(AGAINST THE JUDGMENT AND DECREE IN AS.NO. 37/2013 OF SUB COURT, KOCHI DATED 29-08-2014)

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(AGAINST THE JUDGMENT IN OS.NO. 129/2012 OF PRL.MUNSIFF COURT, KOCHI DATED 29-01-2013)

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APPELLANT(S)/RESPONDENTS/DEFENDANTS :

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1. SHELLY, AGED 46 YEARS, W/O. THYAGU, PONOTH HOUSE, WARD NO.3, ELAMKUNNAPUZHA P.O., KOCHI, ERNAKULAM.

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2. VISHNU, AGED 20 YEARS, S/O. THYAGU, PONOTH HOUSE, WARD NO.3, ELAMKUNNAPUZHA P.O., KOCHI, ERNAKULAM.

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BY ADVS.SRI.P.V.ANILKUMAR SRI.E.D.GEORGE SMT.D.SARITHA

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RESPONDENT(S)/APPELLANTS/PLAINTIFFS :

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1. JOHNY, AGED 43 YEARS, S/O. ANTONY, MALIYAKAL HOUSE, HOUSE NO.12/597, WARD NO.3, ELAMKUNNAPUZHA P.O., KOCHI, ERNAKULAM-682 503.

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2. BEENA, AGED 36 YEARS, W/O. JOHNY, MALIYAKAL HOUSE, HOUSE NO.12/597, WARD NO.3, ELAMKUNNAPUZHA P.O., KOCHI, ERNAKULAM-682 503.

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R1 & R2 BY ADV. DR.K.P..PRADEEP

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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P.B.SURESH KUMAR, J.

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R.S.A.No.34 of 2015

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-----------------------------------------------Dated this the 8^th day of January, 2016

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JUDGMENT

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The defendants in a suit for declaration and injunction are the appellants in this second appeal.

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The plaint A schedule property belongs to the plaintiffs. The plaint C schedule property belongs to the defendants. The plaint C schedule property lies on the western side of the plaint A schedule property. There is a pathway on the north of the plaint C schedule property. According to the plaintiffs, the pathway on the north of the plaint C schedule property connects the plaint A schedule property by another pathway having a width of 6 sq.links through a portion of the eastern boundary of the plaint C

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R.S.A.No.34 of 2015

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schedule property. The said pathway is the plaint B schedule property. The case of the plaintiffs is that the plaintiffs are using the plaint B schedule pathway for access to the plaint A schedule property from the pathway on the north of the plaint C schedule property and that they have acquired a right of easement by prescription over the plaint B schedule pathway. The defendants denied the existence of the plaint B schedule pathway through their property. Though it was found by the trial court that there exists a pathway connecting the plaint A schedule property with the pathway on the north of the plaint C schedule property, the suit was dismissed holding that the plaintiffs have not established that they have prescribed a right of easement over the plaint B schedule pathway. The plaintiffs took up the matter in appeal. The appellate court reversed the decision of the trial court and decreed the suit. The defendants who are aggrieved by the decision of the appellate court have thus

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R.S.A.No.34 of 2015

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come up in this second appeal.

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As noted above, the dispute is as to the right of the plaintiffs to use the plaint B schedule pathway for access to the plaint A schedule property. While the plaintiffs assert that they have acquired a right of easement by prescription over the same, the defendants denied the very existence of the pathway. The plaint C schedule property originally belonged to the wife of DW4. She had assigned the same to DW3 and her husband as per Ext.A4 document. The extent of the property shown in Ext.A4 is 4.050 cents. Likewise, the eastern boundary of the property is shown in Ext.A4 as a pathway having a width of 3 links. The northern boundary of the property is shown in Ext.A4 as a pathway having a width of 5 links. The property covered by Ext.A4 sale deed was later assigned to one Jacob as per Ext.A5 document. In Ext.A5 document, the eastern boundary of the property is shown as a way having a width of 6 links. Since

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R.S.A.No.34 of 2015

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the width of the way was raised from 3 links to 6 links, the extent of property was correspondingly reduced to 3.927 cents. The defendants acquired the property from the purchaser under Ext.A5 as per Ext.A7 assignment deed. However, in Ext.A7 document, the eastern boundary is not shown as a pathway. Ext.A4 is a document executed in the year 1990 and Ext.A5 is a document executed in the year 1992. The suit was of the year 2012. It is on the basis of Exts.A4 and A5 documents executed 20 years prior to the institution of the suit, the appellate court found that the plaintiffs have established a right of easement by prescription over plaint B schedule property.

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The learned counsel for the appellants contended that the plaintiffs have not established continuous user of the plaint B schedule pathway so as to claim right of easement by prescription over same. There is nothing on record to indicate that the plaintiffs have any

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R.S.A.No.34 of 2015

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other access to the plaint A schedule property. When there is nothing on record to indicate that the plaintiffs have another access to the plaint A schedule property, there is nothing wrong in making an inference that the plaintiffs have been continuously using plaint B schedule pathway for access to the plaint A schedule property.

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In the said view of the matter, there is absolutely 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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P.B.SURESH KUMAR, JUDGE.

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smm

Shelly v. Johny

Case brief

What is this about?

What did the court decide?

Shelly v. Johny

Case brief

What is this about?

What did the court decide?

What the court decided

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