Dismissed

Victor v. Raechal Job

Kerala HC6 Jan 2016RSA/591/2014

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Kerala dismissed the appeal filed by defendants challenging the decision upholding plaintiffs' right of easement over a boundary pathway. The court held that while there was a dispute on the pathway width, the defendants' remaining possession confirmed the plaintiffs' usage rights.

What did the court decide?

Second appeal dismissed maintaining the concurrent decrees declaring the right of plaintiffs over the pathway.

Victor Vs Raechal Job — 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 6TH DAY OF JANUARY 2016/16TH POUSHA, 1937

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RSA.No. 591 of 2014

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JUDGMENT DATED 07-12-2013 IN AS 254/2011 OF DISTRICT COURT, KOLLAM JUDGMENT DATED 08-04-2011 IN OS 644/2008 OF PRINCIPAL MUNSIFF COURT,, KOLLAM

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APPELLANT(S)/APPELLANTS/DEFENDANTS 1 & 2:

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------------------------------------------------------------------------

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1. VICTOR, AGED 66 YEARS, S/O.JOSEPH, LEELA BAHAVAN, MATHILIL CHERRY, THRIKADAVOOR VILLAGE, KOLLAM.

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2. SOUSANNA, AGED 59 YEARS, W/O.VICTOR, LEELA BAHAVAN, MATHILIL CHERRY, THRIKADAVOOR VILLAGE, KOLLAM.

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BY ADVS.SRI.R.KISHORE SRI.ARUN BABU

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RESPONDENT(S)/RESPONDENTS/PLAINTIFFS & 3RD DEFENDANT:

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-----------------------------------------------------------------------------------------------

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1. RACHIEL JOB,

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W/O.JOB JOSEPH, KALLOORVILA THEKKATHIL,

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MATHILIL CHERRY, THRIKADAVOOR VILLAGE, KOLLAM-691 001.

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2. JOB JOSEPH, AGED 54 YEARS,

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S/O.JOSEPH, KALLOORVILA THEKKATHIL, MATHILIL CHERRY,

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THRIKADAVOOR VILLAGE, KOLLAM-691 001.

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3. BENNAN FERNANDEZ, AGED 42 YEARS, S/O.STEPHEN FERNANDAZ, THOPPIL VEEDU, MATHILIL CHERRY,

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THRIKADAVOOR VILLAGE, KOLLAM-691 001.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON

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06-01-2016, 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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R.S.A.No.591 of 2014

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Dated this the 6^th day of January, 2016

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JUDGMENT

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Defendants 1 and 2 in a suit for declaration, fixation of

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boundary and injunction are the appellants in this second appeal.

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The plaint A schedule property belongs to the second plaintiff. The first plaintiff is the wife of the second plaintiff. The plaint B schedule property which lies on the west of the plaint A schedule property belongs to the third defendant. On the northern side of the plaint A and B schedule properties lies the plaint C schedule property owned by defendants 1 and 2. The 'L' shaped property starting from the middle portion of the northern boundary of the plaint A schedule property and proceeds towards west

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R.S.A.No.591 of 2014

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up to almost the middle portion of the northern boundary the plaint B schedule property and then proceeds towards north on the western boundary of the plaint C schedule property is described as the plaint D schedule property. According to the plaintiffs, they have a right of easement by grant over the plaint D schedule property to reach the Panchayath road situated on the further north of the plaint C schedule property. According to the plaintiffs, the width of the plaint D schedule pathway is 2 meters. It is alleged that the defendants 1 and 2 are causing obstructions to the user of the plaint D schedule pathway. Defendants 1 and 2 did not dispute the right of the plaintiffs to use the plaint D schedule property as a pathway. The contention raised by defendants 1 and 2, on the other hand, was that the width of the plaint D schedule pathway is only 90 cms. The trial court rejected the contention raised by defendants 1 and 2 and decreed the suit declaring the right of the plaintiffs over

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R.S.A.No.591 of 2014

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the plaint D schedule pathway. Ancillary reliefs sought by the plaintiffs were also granted by the trial court. Defendants 1 and 2 took up the matter in appeal. The appellate court, on a re-appraisal of the evidence on record, confirmed the decision of the trial court. Defendants 1 and 2 who are aggrieved by the concurrent decisions against them have thus come up in the second appeal.

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Heard the learned counsel for the appellants.

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As noted above, the only dispute is as to the width of the plaint D schedule pathway. In other words, the right of the plaintiffs over the plaint D schedule pathway is admitted. The Advocate Commissioner appointed in the suit measured and identified the suit properties with the aid of a Surveyor. Ext .C2 is the report and Ex t.C1(a) is the plan submitted by the Advocate Commissioner. Ext.A1 is the title deed of the defendants 1 and 2. As per Ext.A1, defendants 1 and 2 have acquired 10 cents of property. It is conceded

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R.S.A.No.591 of 2014

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that a portion of the property was purchased by the defendants 1 and 2 as per Ext.A1 which was acquired later for widening the Panchayath road on its north. Though the first defendant as DW1 pleaded ignorance of the extent of the property acquired for the purpose of the road, the Advocate Commissioner appointed in the suit with the aid of the Surveyor found that the extent of the property acquired from the possession of defendants 1 and 2 is 0.593 sq. links. Only 9.45 cents of property is therefore remaining with defendants 1 and 2. The Advocate Commissioner has identified the 9.45 cents of property covered by Ext.A1 assignment deed remaining with the defendants 1 and 2 . The Advocate Commissioner also identified the plaint D schedule pathway as a property having a width of 2 meters. The courts below took the view that in so far as the property covered by the title deed of defendants 1 and 2 is in their possession, the case of the plaintiffs that the remaining

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R.S.A.No.591 of 2014

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property was being used as a pathway has to be accepted. I do not find anything wrong in the aforesaid conclusion arrived at by the courts below, especially when defendants 1 and 2 have no case that they are in possession of property more than what is covered by their title deed. In the said view of the matter, there is no merit in the second appeal and the same is accordingly dismissed.

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P.B.SURESH KUMAR, JUDGE.

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smm

Victor v. Raechal Job

Case brief

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Victor v. Raechal Job

Case brief

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