Dismissed

Jayaprakash Kamalaksh Kammath v. Puthiyapurayil Masood

Kerala HC7 Jan 2016RSA/750/2012

Case brief

AI extract

What is this about?

In this second appeal against the dismissal of an injunction suit, the Kerala High Court examined whether the plaintiff derived an easement right over a pathway. The Court held that recitals in a partition deed regarding pathways do not bind property not included in the deed, though the party was involved in the partition. The appeal was dismissed.

What did the court decide?

The second appeal and all interlocutory applications are dismissed; the suit remains dismissed.

Jayaprakash Kamalaksh Kammath Vs Puthiyapurayil Masood — 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 7TH DAY OF JANUARY 2016/17TH POUSHA, 1937

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RSA.No. 750 of 2012

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AGAINST THE JUDGMENT IN A.S.NO.42/2009 OF PRINCIPAL SUB COURT, KOZHIKODE

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AGAINST THE JUDGMENT IN O.S.NO.614/2004 OF ADDITIONAL MUNSIFF COURT-II,KOZHIKODE

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APPELLANT(S)/APPELLANTS/PLAINTIFFS :

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JAYAPRAKASH KAMALAKSH KAMMATH, AGED 67 YEARS, S/O.KAMALAKSH KAMMATH, 18/1279-A, KASABA AMSOM DESOM, KOZHIKODE TALUK.

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BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH

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RESPONDENT(S)/RESPONDENTS/DEFENDANTS :

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1. PUTHIYAPURAYIL MASOOD, S/O. ANTHRU.C.K., 27/1359, ALIFA, KASABA AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE- 673 002, KASABA P.O.

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2. P.P. HALEEMABI,

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D/O.ASSAN KOYA, PUTHIYA PONMANICHINATAKATH, NAGARAM AMSOM DESOM, NAGARAM.P.O. KOZHIKODE TALUK, KOZHIKODE-673 002.

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R1 BY ADVS. SRI.A.A.ZIYAD RAHMAN

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SRI.LAL K.JOSEPH SRI.JOSEPH KURIAN VALLAMATTAM SRI.K.H.ANSAR

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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RSA.No. 750 of 2012

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APPENDIX

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PETITIONER(S)' ANNEXURES :

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ANNEXURE A1: TRUE COPY OF THE PHOTOS SHOWING THE PRESENT LIE OF PLAINT B SCHEDULE AS SHOWN IN EXT.C4 PLAN.

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RESPONDENT(S)' ANNEXURES :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

P.B.SURESH KUMAR, J.

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

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R.S.A.No.750 of 2012.

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

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Dated this the 7^th day of January, 2016.

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J U D G M E N T

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The plaintiff in a suit for injunction is the appellant in this second appeal.

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The plaint A schedule property belongs to the plaintiff. The plaint B schedule property is the pathway to the plaint A schedule property. Going by the description, the plaint B schedule pathway is a pathway having a width of 12 feet. The case of the plaintiff is that he has a right of easement by grant over the plaint B schedule pathway. It is alleged by the plaintiff that the first defendant is causing obstructions to him in the matter of using the plaint B schedule pathway. The suit was, therefore, filed seeking a decree of permanent prohibitory injunction restraining the first defendant from causing obstruction to the plaintiff in the matter of using the plaint B schedule pathway. The first

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RSA.No.750/2012.

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defendant resisted the suit, contending that a portion of the property shown as the plaint B schedule pathway is the property purchased by him as per Ext.B1 assignment deed. According to the first defendant, the width of the plaint B schedule pathway is only 5 feet. The trial court accepted the case of the first defendant and dismissed the suit. Though the matter was taken up in appeal by the plaintiff, the appellate court, on a reappraisal of the evidence on record, confirmed the decision taken by the trial court. The plaintiff, who is aggrieved by the concurrent decisions against him, has thus come up in this second appeal.

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

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The plaint schedule properties belonged to one Imbichaminabi. As per Ext.B2 assignment deed, Imbichaminabi assigned the property presently owned by the first defendant to Nafeesabi. Later, in the year 1989, Nafeesabi transferred the said property to Aminabi as per Ext.B3 document. Aminabi in turn transferred the property

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RSA.No.750/2012.

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to the first defendant as per Ext.B1 document in the year 2004. The properties remained with the legal representatives of Imbichaminabi on his death were portioned later among the legal representatives of Imbichaminabi as Ext.A4 partition deed. The case of the plaintiff is that he is the assignee of a portion of the properties covered by Ext.A4 partition deed from one of the sharers in the said partition. According to him, a path way having a width of 12 feet is provided in Ext.A4 partition deed for the properties dealt with therein including the plaint A schedule property. Ext.C4 is the plan prepared by the Advocate Commissioner appointed in the suit with the aid of the Surveyor. The Advocate Commissioner has reported that the property covered by Ext.B1 Assignment deed takes in a portion of the property scheduled in the plaint as the plaint B schedule property and that if the property obtained by the first defendant as per Ext.B1 assignment deed is excluded from the plaint B schedule, the width of the pathway will only be 5 feet. The learned

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RSA.No.750/2012.

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counsel for the appellant conceded that the property covered by Ext.B1 is not the subject matter of Ext.A4 partition deed. Nevertheless, he contended that even though the property covered by Ext.B1 is not the subject matter of Ext.A4 partition deed, Nafeesabi who was holding the property covered by Ext.B1 at the relevant time was a party to Ext.A4 partition deed, which provides for a pathway having 12 feet width to the properties dealt with therein and therefore the provision therein binds the property owned by her also. There is absolutely no merit in this contention. When the property covered by Ext.B1 was not the subject matter of Ext.A4 partition deed, the recitals contained in Ext.A4 will not or cannot bind the property covered by Ext.B1, for, the recitals therein can only be understood as having been made in relation to the properties dealt with therein, especially when the document is silent as regards the burden, if any, created in relation to the property not dealt with therein. Merely for the reason that the prior owner o f the property presently owned by the first

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RSA.No.750/2012.

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defendant, namely, Nafeesabi was a party to Ext.A4 partition deed, it cannot be inferred that she has agreed to provide a pathway through her property which had nothing to do with the properties dealt with in the partition deed. Further, I do find any recital in Ext.A4 partition deed also providing for a pathway having a width of 12 feet to the plaint A schedule property as contended by the plaintiff. Ext.A4 only indicates that the boundary of the plaint A schedule property is shown therein as a pathway having a width of 12 feet. That is hardly sufficient to make an inference that Ext.A4 partition deed provides for a pathway having a width of 12 feet to the plaint A schedule property. The second appeal, in the circumstances, is devoid of merits and the same is accordingly dismissed. All the interlocutory applications in the appeal are closed.

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Sd/- P.B.SURESH KUMAR,

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JUDGE.

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Kvs/-

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// true copy //

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RSA.No.750/2012.

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Jayaprakash Kamalaksh Kammath v. Puthiyapurayil Masood

Case brief

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Jayaprakash Kamalaksh Kammath v. Puthiyapurayil Masood

Case brief

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