This second appeal challenged a decree of permanent prohibitory injunction. The appellate court held that the defendants did not use the property as of right to claim easement, dismissing their appeal. The High Court found no illegality and dismissed the appeal.
No specific relief granted; the second appeal was dismissed with interlocutory applications closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 28TH DAY OF JANUARY 2016/8TH MAGHA, 1937
RSA.No. 946 of 2015
AGAINST THE JUDGMENT IN A.S.NO.35/2014 OF SUB COURT, KOYILANDY
AGAINST THE JUDGMENT IN O.S.NO.79/2012 OF MUNSIFF COURT, KOYILANDY
APPELLANT(S)/RESPONDENTS/DEFENDANTS :
1. SEKHARAN, AGED APPROXIMATELY ABOUT 50 YEARS, S/O. VELU, DRIVER, RESIDING AT IRULATHU HOUSE, PANTHALAYANI VILLAGE, KARUVANGADU DESOM, KOYILANDY TALUK, KOZHIKODE.
2. MADHAVAN, AGED 55 YEARS, S/O. CHANGARAN, SWASTHAM, RESIDING AT IRULATHU HOUSE, PANTHALAYANI VILLAGE, KARUVANGADU DESOM, KOYILANDY TALUK, KOZHIKODE.
3. KUNHIRAMAN, AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER, RESIDING AT IRULATH HOUSE, PANTHALAYANI VILLAGE, KARUVANGADU DESOM, KOYILANDY TALUK, KOZHIKODE.
4. RAVEENDRAN,
BY ADVS.SRI.P.R.SREEJITH SRI.K.V.MANOJ KUMAR SRI.M.PROMODH KUMAR SMT.MAYA CHANDRAN
RESPONDENT(S)/APPELLANT/PLAINTIFF :
CHETTATTU SURESH, S/O. BALAN NAIR, EX-MILITARY, AND NOW WORKING IN MERCHANT NAVY, RESIDING AT CHETTATT HOUSE, PANTHALAYANI VILLAGE, KARUVANGADU DESOM, KOYILANDY TALUK, KOZHIKODE-673 305. (AGE OF RESPONDENT NOT KNOWN).
..2/-
..2..
RSA.No. 946 of 2015
REPRESENTED BY WIFE AND POWER OF ATTORNEY HOLDER MRS.BINDU, D/O.KARUNAKARAN NAIR, AGED 35 YEARS, HOUSE WIFE, RESIDING AT CHETTATT HOUSE, PANTHALAYANI VILLAGE, KARUVANGADU DESOM, KOYILANDY TALUK, KOZHIKODE- 673 305.
BY ADVS. SRI.U.K.DEVIDAS SRI.K.K.ANILRAJ
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Msd.
P.B.SURESH KUMAR, J.
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R.S.A.No.946 of 2015.
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Dated this the 28th day of January, 2016.
J U D G M E N T
The defendants in a suit for injunction are the appellants in this second appeal.
2
RSA.No.946/2015.
schedule property. According to them, they have acquired a right of easement by prescription over a portion of the plaint schedule property. The trial court though dismissed the suit, the appellate court reversed the decision of the trial court and decreed the suit granting the decree sought by the plaintiff. The defendants who are aggrieved by the decision of the appellate court have thus come up in this second appeal.
property is not in dispute. The defendants only claimed a right of easement by prescription over the plaint schedule property. According to them, they are using a portion of the plaint schedule property having a width of six feet on its western boundary for access to their properties on the north. The appellate court noticed that there exists a laterite stone foundation throughout the western boundary of the plaint schedule property. The appellate court also
RSA.No.946/2015.
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noticed that the fourth defendant who gave evidence as DW1 has stated in his evidence that on many occasions he wanted the plaintiff to surrender a portion of their property for the purpose of widening the alleged pathway and that the plaintiff did not accede to the said request made by the fourth defendant. The appellate court found that it cannot be said, in the said circumstances, that the defendants are using a portion of the plaint schedule property as of right. The impugned decision was rendered by the appellate court on that basis. There is no illegality in the impugned decision. The second appeal, in the circumstances, is devoid of merit and the same is accordingly dismissed. All the interlocutory applications in this appeal are closed.
P.B.SURESH KUMAR,
Kvs/-
// true copy //
PA TO JUDGE.
2 issues framed by the court
Whether the appellate court erred in deciding that the appellants did not acquire a right of easement by prescription.
Whether the second appeal is devoid of merit given the finding on usage by right.
Sekharan
Madhavan
KunHIRAMAN
Raveendran
Chettattu Suresh
P.B. Suresh Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
