Allowed

Benzi Ani Mathew v. M.C.Mathai

Kerala HC23 Feb 2016RSA/369/2012

Case brief

AI extract

What is this about?

In a regular second appeal, the High Court of Kerala allowed the appellant/plaintiff's challenge to lower courts' non-suit order. The Court held that the plaintiff successfully established a right of easement by grant over the plaint B schedule way and ordered its declaration despite the way not existing in its completed form at the time of the suit.

What did the court decide?

Impugned judgments set aside; suit O.S. No. 204 of 2008 decreed declaring right to use plaint B schedule way; permanent prohibitory injunction granted restraining defendants from causing obstruction.

Benzi Ani Mathew Vs M.C.Mathai — 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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WEDNESDAY, THE 2ND DAY OF MARCH 2016/12TH PHALGUNA, 1937

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RSA.No. 369 of 2012

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AS 41/2010 OF SUB COURT, KATTAPPANA DATED 12-10-2011 OS 204/2008 OF MUNSIFF COURT, KATTAPPANA DATED 16-07-2010

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APPELLANT/APPELLANT/PLAINTIFF:

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BENZI ANI MATHEW, D/O. MATHEW, CHEMMANGATTU HOUSE, NEDUMKANDOM KARA, PARATHODU VILLAGE, REPRESENTED BY HER ATTORNEY FRANCIS, S/O. JOSEPH, VADAKKEMURIYIL, NEDUMKANDOM KARA, PARATHODU VILLAGE.

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BY ADVS.SRI.K.K.CHANDRAN PILLAI (SENIOR) SRI.A.C.DEVASIA

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RESPONDENT(S)/RESPONDENTS/DEFENDANTS:

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1. M.C.MATHAI, S/O. CHAKKAPAN, MECHERIL HOUSE, NEDUMKANDOM KARA, PARATHODU VILLAGE, PARATHODU P.O., IDUKKI-685514.

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2. M.C.MATHAI, S/O. CHAKKAPAN, MECHERIL HOUSE, NEDUMKANDOM KARA, PARATHODU VILLAGE, PARATHODU P.O., IDUKKI-685514.

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3. THRESSIAMMA, W/O. CHAKKAPPAN, MECHERIL HOUSE, NEDUMKANDOM KARA PARATHODU VILLAGE, PARATHODU P.O., IDUKKI-685514.

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BY ADVS. SRI.C.T.JOSEPH

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SRI.JOE POLLAYIL SRI.ROSHIN IPE JOSEPH

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SMT.DIVYA CHANDRAN (ADVOCATE COMMISSIONER)

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/2/2016 THE COURT ON 02-03-2016, DELIVERED THE FOLLOWING:

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P.B.SURESH KUMAR, J.

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= = = = = = = = = = = R.S.A.No.369 of 2012

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= = = = = = = = = = =

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Dated this the 2^nd day of March, 2016.

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J U D G M E N T

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The defeated plaintiff in a suit for declaration and

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injunction is the appellant in this second appeal.

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The plaint A schedule property was part of a larger extent held by one Chakkappan. Chakkappan sold the western portion of the property held by him to one Sils K.Jose. Later, according to the plaintiff, Chakkappan divided the property on the east into four plots, after forming the plaint B schedule way on its western boundary. Out of the said plots, the plot on the extreme north was settled by Chakkappan in favour of his son M.C.Thomas. Likewise, the plot on the south of the plot given to M.C.Thomas was settled by Chakkappan in favour of his son M.C.Mathai and the plot on the south of the plot given to M.C.Mathai was settled by Chakkappan in favour of his son

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RSA.No.369/2012.

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M.C.Chacko. Thereupon, the last plot abutting the southern Nedumkandom – Kombayar road was bequeathed by Chakkappan to his wife Thressiamma. The plaint A schedule property measuring 40 cents is the plot settled by Chakkappan in favour of his son M.C. Thomas. Ext.A3 is the settlement deed executed by Chakkappan in favour of M.C.Thomas. The plaintiff purchased the said plot from M.C.Thomas. Ext.A2 is the title deed of the plaintiff. The western boundary of the plaint A schedule property is shown in Ext.A2 as a way having a width of 10 feet. The particulars of the said way are shown in schedule B to the plaint. According to the plaintiff, the plaint B schedule way leads to Nedumkandom – Kombayar road on the south. M.C.Mathai, M.C.Chacko and Thressiamma are defendants 1 to 3 respectively in the suit. The case set up by the plaintiff is that when she purchased the plaint A schedule property from M.C.Thomas, the plaint B schedule way was not constructed completely and consequently, defendants 1 and

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RSA.No.369/2012.

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2 were using a portion of the property owned by Sils K.Jose for access to the plaint B schedule way. Accordingly, it is the case of the plaintiff that she was also using the property of Sils K.Jose for access to the plaint B schedule way. It is the further case of the plaintiff that later, Sils K.Jose sold the property held by him to one Jose and he constructed a compound wall for the property purchased by him. According to the plaintiff, when Jose had constructed compound wall for the property purchased by him, the appellant had no option but to use the plaint B schedule way for access to Nedumkandom – Kombayar road. It is also the case of the plaintiff that when she attempted to use the plaint B schedule way, the defendants caused obstruction to the said user and consequently, she is unable to access her property. It is pleaded by the plaintiff in the plaint that there is no access to the plaint A schedule property except through the plaint B schedule way. The suit was, therefore, filed seeking a decree declaring the right of the plaintiff to

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RSA.No.369/2012.

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use the plaint B schedule way for access to the plaint A schedule property from Nedumkandom – Kombayar road and for a permanent prohibitory injunction restraining the defendants from causing obstructions to the plaintiff in the matter of using the plaint B schedule way. The nature of right claimed by the plaintiff over the plaint B schedule way is easement by grant.

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The defendants resisted the suit by filing a written statement. The contention raised by the defendants in the written statement is that the way which is shown in the title deed of the plaintiff stops at the north western corner of the property of the third defendant and the plaintiff has been using the property of Jose for access to the Nedumkandam - Kombayar road from that point. In other words, according to the defendants, the way as described in the plaint B schedule does not exist. The case of the plaintiff that Chakkappan had granted a right of way to M.C.Thomas while settling the plaint A schedule property

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RSA.No.369/2012.

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in his favour is, however, not denied by the defendants in the written statement filed by them. There is also no averment in the written statement as to the particulars of the right of way granted by Chakkappan in favour of M.C.Thomas.

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Ext.B2 is the Will executed by Chakkappan in favour of the third defendant. In Ext.B2, the western boundary of the property is shown as the property owned by Jose and the property earmarked for the way. The courts below took the view that had the way shown in Ext.A2 sale deed been a way through the western boundary of the property covered by Ext.B2 Will as pleaded by the plaintiff, the western boundary of the said property would have been described as a way. Since the western boundary of the property covered by Ext.B2 Will is described as the property of Jose and the property earmarked for the way, the courts below held that the plaintiff has not established the identity of the way over which she is claiming an

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RSA.No.369/2012.

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easement by way of grant. Consequently, the plaintiff was non-suited. The plaintiff is aggrieved by the decisions of the courts below and hence this second appeal.

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

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The learned counsel for the appellant contended that in so far as the defendants have no case that Chakkappan had not granted a right of way to M.C.Thomas, they were bound to disclose the particulars of the said way in the written statement filed by them and in the absence of any evidence from the side of the defendants as to the way granted to M.C.Thomas, the only inference possible for the court was to accept the case of the plaintiff that the plaint B schedule way was the way granted by Chakkappan to M.C.Thomas. As regards the finding rendered by the courts below that the plaintiff has not established the existence of the plaint B schedule way, the learned counsel for the appellant contended that since the

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RSA.No.369/2012.

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plaintiff is claiming a right of easement by grant, the court has the power to grant relief even if it is found that the way claimed was not in existence at the time of institution of the suit.

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The learned counsel for the respondents conceded that Chakkappan had granted a right of way to M.C.Thomas. He also conceded that there is no pleading in the written statement as to the said right. He, however, contended that the way granted to M.C.Thomas as indicated in his title deed takes a turn towards west at the northwestern boundary of the property of the third defendant and reaches the way that exists on the western side of the property sold by Chakkappan to Sils K.Jose and that the plaintiff can reach the Nedumkandam - Kombayar road through the said way. In other words, according to the learned counsel, the grant in favour of M.C.Thomas was through the said way. To buttress this argument, the learned counsel for the respondents pointed that

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RSA.No.369/2012.

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Chakkappan had earmarked 2.3 cents of property to connect the way on the western side of the plaint A schedule property with the way on the western side of the property sold to Sils K.Jose and it is that property that was shown as the western boundary of the property which was bequeathed to the third defendant.

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In the light of the rival submissions made at the Bar, the following substantial question of law is formulated for decision:

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Has the plaintiff, on the facts of the present case, made out a case of easement by grant over plaint B schedule way?

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As noted above, Ext.A3 is the settlement deed

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in favour of the vendor of the plaintiff M.C.Thomas. The western boundary of the property is shown in Ext.A3 as a

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way having a width of 10 feet. The specific case of the plaintiff is that the plaintiff has acquired a right of easement by grant over the way shown on the western boundary of her property. As noticed above, the fact that M.C.Thomas

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RSA.No.369/2012.

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had acquired a right of easement by grant has not been disputed by the learned counsel for the respondents. The dispute, on the other hand, is only as to the way over which the grant was made. According to the plaintiff, the grant was made over the plaint B schedule way, but according to the defendants, the grant was made over the way indicated by the learned counsel for the respondents. As noted above, the defendants did not disclose the particulars of the way over which the grant was made in favour of M.C.Thomas. Going by the particulars furnished by their counsel, the way proceeds towards west from the northwestern corner of the property bequeathed to the third defendant and reaches the way on the western side of the property sold to Sils K.Jose. The learned counsel for the appellant conceded that Chakkappan had earmarked 2.3 cents of property for a way as indicated by the learned counsel for the defendants. But, according to him, there is no way in existence on the western boundary of the

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RSA.No.369/2012.

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property sold to Sils K.Jose and that there is only a private lane used by two individuals. It is pointed out by the learned counsel for the appellant that since Chakkappan was never the owner of the property on the west of the property sold to Sils K.Jose, it cannot be contended that the grant of way in favour of M.C.Thomas was through a property which does not belong to the granter. The fact that the property on the west of the property sold to Sils K.Jose was not a property held by Chakkappan at the time of execution of Ext.A3 settlement deed is not in dispute. According to the learned counsel, there exists a public road on the western boundary of the property sold to Sils K.Jose. There is absolutely no material on record to indicate that there exists a public road on the west of the property sold to Sils K.Jose. On the other hand, the Advocate Commissioner appointed from this Court at the instance of the plaintiff has categorically stated in his report that there is only a private lane through the western side of the property sold to Sils

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RSA.No.369/2012.

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K.Jose. As such, it cannot be held that the right of way granted to M.C.Thomas was through the way suggested by the learned counsel for the respondents. When it is found that a right of way was not possible through the 2.3 cents of property earmarked by Chakkappan for the way, the only inference possible is to hold that the right of way given to M.C.Thomas was through the remaining property of Chakkappan. The plaint B schedule description indicates that the way described therein was through the remaining property of Chakkappan, causing least inconvenience to the parties. In the circumstances, I am constrained to hold that the grant in favour of the plaintiff is through the plaint B schedule way and the finding to the contrary rendered by the courts below is perverse.

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The next question to be considered is as to whether the non-existence of a way on the western boundary of the property bequeathed to the third defendant and consequent inability of the plaintiff to establish the

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RSA.No.369/2012.

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identity of the way over which she claims the right of easement would preclude the plaintiff from claiming a right of easement through the said way. As noted above, the western boundary of the property covered by Ext.B2 Will is shown in Ext.B2 as the property sold to Sils K.Jose and the property earmarked for the way. Ext.B2 was executed on the same day on which Ext.A3 settlement deed in favour of the vendor of the plaintiff was executed. In other words, though a right of easement by grant was given by Chakkappan to the vendor of the plaintiff, the said easement was not in respect of a way which was already formed. Further, the specific case pleaded by the plaintiff was also that the way over which she has acquired a right of easement by grant has not been formed completely and that consequently she was accessing her property through the property sold to Sils K.Jose by Chakkappan. It is also her case that since access to her property through the property sold to Sils K.Jose became impossible, she attempted to use

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RSA.No.369/2012.

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the plaint B schedule way and that the defendants have obstructed such user. Easement by grant is a matter of contract between the parties and it has its own consideration in some form or other. As such, once it is conceded that the plaintiff has acquired a right of easement by way of grant, it is the duty of the court to enforce the same, especially when the plaintiff is unable to enjoy the property without the said right. The non-existence of the way in respect of which the right of easement by grant was claimed by the plaintiff, in the circumstances, is irrelevant and the same does not preclude the plaintiff from claiming relief in respect of the said way in the suit.

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In the result, the question formulated for decision is answered in favour of the appellant. Consequently, the impugned judgments are set aside and the suit O.S.No.204 of 2008 is decreed declaring the right of the plaintiff to use the plaint B schedule way for access to the plaint A schedule property. There will be a decree for permanent prohibitory

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RSA.No.369/2012.

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injunction restraining the defendants from causing obstruction to the plaintiff in the matter of enjoying the plaint B schedule way for access to the plaint A schedule property. All the interlocutory applications in the appeal are closed.

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Sd/- P.B.SURESH KUMAR,

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Kvs/-

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// true copy //

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PA TO JUDGE.

Benzi Ani Mathew v. M.C.Mathai

Case brief

What is this about?

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Benzi Ani Mathew v. M.C.Mathai

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