Dismissed

Hazzan v. Abdul Rub Nisthar

Kerala HC13 Feb 2017RSA/1347/2015

Case brief

AI extract

What is this about?

High Court dismissed a second appeal and original petition concerning a suit for perpetual injunction. The court upheld lower courts' findings that the plaintiffs' right of way over the specified property is a covenant running with the land and that the respondents' claim regarding measurements was estopped by the terms of the sale deed.

What did the court decide?

The second appeal and the original petition were dismissed; the interlocutory applications were closed.

Hazzan Vs Abdul Rub Nisthar — Kerala HC (2017) — LawSathi Research

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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 B.KEMAL PASHA

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MONDAY, THE 13TH DAY OF FEBRUARY 2017/24TH MAGHA, 1938

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RSA.No. 1347 of 2015 (B)

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AGAINST JUDGMENT DATED 28-07-2015 IN AS 4/2014 of SUB COURT, PERUMBAVOOR

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AGAINST THE JUDGMENT IN OS 268/2011 of MUNSIFF COURT, PERUMBAVOOR

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APPELLANT(S)/APPELLANTS/DEFENDANTS:

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1. HAZZAN, AGED 70 YEARS,

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S/O.KUNJI PAREETH, KONOTHUKUDY (KONNAMKUDY) HOUSE, NEDUMTHODU KARA, VENGOLA VILLAGE, KUNNATHUNADU TALUK, MUDICKAL P.O., PERUMBAVOOR, PIN - 683 547.

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2. NOUSHAD, AGED 39 YEARS,

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S/O. HAZZAN, KONOTHUKUDY (KONNAMKUDY) HOUSE, NEDUMTHODU KARA, VENGOLA VILLAGE, KUNNATHUNADU TALUK, MUDICKAL P.O., PERUMBAVOOR, PIN - 683 547.

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BY ADVS.SRI.G.RAJAGOPAL

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SMT.S.LEELALAKSHMI

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SMT.N.RENJINEE DEVI

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RESPONDENT(S)/RESPONDENTS/PLAINTIIFFS:

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1. ABDUL RUB NISTHAR, AGED 45 YEARS, S/O. MOIDEEN ABUL KHADER, KAKKOTTU PUTHENPURAYIL, VENGOLA KARA, VENGOLA VILLAGE, KUNNATHUNADU TALUK, MUDICKA P.O., PERUMBAVOOR - 683 547.

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2. TAHIRA, AGED 41 YEARS,

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W/O.ABDUL RUB NISTHAR, KAKKOTTU PUTHENPURAYIL, VENGOLA KARA, VENGOLA VILLAGE, KUNNATHUNADU TALUK, MUDICKA P.O., PERUMBAVOOR - 683 547.

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R1 BY ADV. SRI.P..THOMAS GEEVERGHESE (CAVEATOR) R1-R2 BY ADV. SRI.P.THOMAS GEEVERGHESE R1-R2 BY ADV. SRI.TONY THOMAS (INCHIPARAMBIL)

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13-02-2017, ALONG WITH OPC. 3180/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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................................................................ R.S.A. No. 1347 of 2015 & O.P.(C) No. 3180 of 2015

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............................................................... Dated this the 13^th day of February, 2017

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J U D G M E N T

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Aggrieved by the concurrent findings entered by the Munsiff's Court, Perumbavoor in O.S.No.268/2011 followed by those of the Subordinate Judge's Court, Perumbavoor in A.S.No.4/2014, the defendants in O.S.No.268/2011 have

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come up with this second appeal. Aggrieved by the decision in C.M.A.No.2/2014 this original petition has been filed.

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Before the lower appellate court, C.M.A. No.3/2014 was filed by the defendants, challenging the order passed by the trial court allowing I.A.No.2412/2013 filed by the plaintiff in the suit under Order XXXIX Rule 1 of

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CPC, which was one for temporary mandatory injunction.

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R.S.A. No. 1347 of 2015 & O.P.(C) No. 3180 of 2015

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-: 2 :-

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The said CMA was dismissed by the lower appellate court, thereby upholding the order passed by the trial court.

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The suit is one for perpetual injunction restraining the defendants from committing trespass into the portions of plaint A schedule item No.1 property, from destroying the compound wall or boundaries of the same and causing any obstruction to the access of the plaintiff to plaint A schedule item No.1 and item No.2 property and from installing pillars into the portions of the plaint A schedule item No.2 property or putting up a gate at the portions of plaint A schedule item No.2 property and from obstructing the user of the plaint A schedule item No.2 property as pathway.

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In the course of the suit, the defendants have allegedly installed two pillars for the installation of the gate to their house situated in their property. By alleging that the pillar which ought to have been installed at the north western corner of plaint A schedule item No.2 property has been installed by the plaintiff by encroaching into the

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R.S.A. No. 1347 of 2015 & O.P.(C) No. 3180 of 2015

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-: 3 :-

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portions of the plaint A schedule item No.2 property, the plaintiff filed I.A.No.2412/2013 for temporary mandatory injunction for the removal of the said pillar. The said IA was allowed by the trial court.

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The defendants contended that the plaint scheduled descriptions are not correct and it is a false statement that the plaintiffs had constructed compound wall separating the properties of the plaintiffs and the defendants. It is contended that the defendants had constructed a compound wall about 25 years back. It is further contended that the defendants wanted to increase the height of the said compound wall and therefore, they put up two layers of bricks over the then existing compound wall thereby increasing its height. It is also contended that the plaintiffs as well as the defendants have one half oodukur right each over plaint A schedule item No.2 property and therefore, the defendants have still half right over the said portions. Both the courts below have repelled the

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R.S.A. No. 1347 of 2015 & O.P.(C) No. 3180 of 2015

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-: 4 :-

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contentions resorted to by the defendants and decreed the suit in terms of the plaint.

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Heard the learned counsel for the

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appellants/petitioners and the the learned counsel for the respondent.

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The learned counsel for the appellants/petitioners has argued that the measurements of the property contained in Ext.C2(a) plan are incorrect since the measurements do not coincide with the measurements in the plan appended with Ext.A1. Admittedly, Ext.A1 is the sale deed by which the plaintiffs claim plaint A schedule item No.1 property as well as the half right over the plaint A schedule item No.2 property. Even though the extent of the property shown in plaint A schedule item No.1 is 8.66 Ares, in fact, it is a mistake and the correct extent is 8.03 Ares. In plaint A schedule item No.1 descriptions it has been noted that plaint A schedule item No.1 is 6.7 Ares comprised in Re.Sy.No.129/2013 as well as 1.96 Ares in the said survey,

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R.S.A. No. 1347 of 2015 & O.P.(C) No. 3180 of 2015

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-: 5 :-

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the correct extent is 6.07 Ares and 1.96 Ares respectively, thereby totalling 8.03 Ares.

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Going by the recitals in Ext.A1, which was executed by the first defendant and one Annamma in favour of the plaintiffs, the defendants cannot contend that they can do anything in the portions of plaint A schedule item No.2 property. Plaint A schedule item No.2 property is C schedule item in Ext.A1. In unequivocal terms it has been mentioned in Ext.A1 that the said C schedule item is set apart for the user of it as a pathway for the plaintiffs as well as the defendants. Therefore, the contentions that they can exercise any right over the half portion of the said C schedule, cannot be countenanced. True that in Ext.A1 the right reserved by the parties over plaint A schedule item No.2 has also been permitted to be transferred, when they alienate their properties. At the same time, it can only be treated as a covenant running with the land and nothing more. When the right over plaint A schedule item No.2

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R.S.A. No. 1347 of 2015 & O.P.(C) No. 3180 of 2015

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-: 6 :-

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property is prescribed as the user of it as a pathway, it can only be taken as a grant made in the document which will always run with the land.

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Regarding the measurements, the learned counsel for the appellants/petitioners has argued that the measurements in Ext.C2(a) plan substantially vary with the measurements contained in the plan appended with Ext.A1.

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As per the plan appended with Ext.A1 the northern boundary of plaint A schedule item No.1 property should be 2.4 + 13.8 = 16.2 mtrs; whereas, in the plan appended with Ext.C2(a) the western boundary of plaint A schedule item No.1 property is having only a length of 16 mtrs. There is a shortage of 0.2 mtr. At the same time, the length of the eastern boundary of plaint A schedule item No.1 property should be 43.8 mtr. as per the plan appended with Ext.A1; whereas, it has got a length of 44 mtrs. as per Ext.C2(a) plan. The total length of the western boundary of plaint A schedule item No.1 property should be 43.1 mtrs. as per the

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R.S.A. No. 1347 of 2015 & O.P.(C) No. 3180 of 2015

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-: 7 :-

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plan appended with Ext.A1. At the same time, as per Ext.C2 (a) plan the said total length is only 43.5 mtrs. The eastern boundary of plaint A schedule No.2 property, shall have a length of 3.2 mtrs. The said 3.2 mtrs. is still there as per Ext.C2(a) plan. The northern boundary of plaint A schedule item No.2 property should have 3.85 mtrs. of length. In Ext.C2(a) plan also the said length has been shown as the northern boundary of plaint A schedule item No.2 property. The western boundary of plaint A schedule item No.2 property should have a length of 3.6 mtrs. and similarly the southern boundary of plaint A schedule item No.2 should have a length of 3.7 mtrs. The said property has been identified as plaint A schedule item No.2 property in Ext.C2 (a) plan.

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According to the learned counsel for the appellants/petitioners, the property of the appellants was not identified and therefore, the plot shown as plaint A schedule item No.2 property in Ext.C2(a) is not correctly identified.

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R.S.A. No. 1347 of 2015 & O.P.(C) No. 3180 of 2015

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-: 8 :-

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The measurements were strictly carried out in terms of the plan appended with Ext.A1. The appellants are clearly estopped from contending the correctness of the measurements contained in the plan appended with Ext.A1, since the first defendant along with one Annamma had willingly disposed of the property to the plaintiffs. The plaint A schedule item No.2 property in Ext.C2(a) has been clearly identified in terms of the measurements contained in the plan appended with Ext.A1 in which it has been shown as C schedule.

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When a serious dispute has been raised by the learned counsel regarding the measurements in plaint A schedule item No.2 property, this Court had appointed an Advocate Commissioner to note down the measurements of plaint A schedule item No.2 property as it exits now. The Commissioner has prepared a report and sketch. In the sketch, the measurement of C schedule in Ext.A1 have been shown which clearly shows that instead of 3.2 mtrs.

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R.S.A. No. 1347 of 2015 & O.P.(C) No. 3180 of 2015

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-: 9 :-

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which should have been there at the eastern boundary of the said property, the present measurement is only 3.1 mtrs. As against 3.85 mtrs. which should have been there at the northern boundary of the said property, presently, the measurement is only 3.5 mtrs. The western boundary is shown to have a length of 3.6 mtrs. At the same time, the southern boundary, which should have been a straight line as contained in the plan appended with Ext.A1, it has been shown as one slanting towards further south where it joints the south western corner of plaint A schedule item No.2 property. When that is considered, it is evident that the present lie of plaint A schedule item No.2 property is not the one noted in the plan appended with Ext.A1 as well as Ext.C2(a) plan.

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Matters being so, there is no merit in the argument forwarded by the learned counsel for the respondents that the pillar erected by the defendants as the western pillar of their gate will not come within the portions of plaint A

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R.S.A. No. 1347 of 2015 & O.P.(C) No. 3180 of 2015

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-: 10 :-

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schedule item No.2 property. Both the courts below have considered all these aspects in its correct perspective and have arrived at the correct conclusion that the lie of C schedule property in the plan appended with Ext.A1 should be the plaint A schedule item No.2 property as plotted in Ext.C2(a) plan. Nobody has a right to encroach into any of the portions of plaint A schedule item No.2 property since it should be preserved as common property for the user of it as a pathway. Therefore, there is absolutely nothing to interfere with the findings entered by the trial court as well as the lower appellate court. The plaint A schedule item No.2 property has been correctly identified in Ext.C2(a) and the same should be appended with the decree. In executing the order passed by the trial court in I.A.No.2412/2013 also the executing court shall be governed by Ext.C2(a) plan. Matters being so, the second appeal as well as the original petition fail and are only to be dismissed, and I do so.

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In the result, the Second Appeal as well as the Original

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R.S.A. No. 1347 of 2015 & O.P.(C) No. 3180 of 2015

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-: 11 :-

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Petition are dismissed. In the nature of these cases, the parties shall bear their respective costs. All the interlocutory

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applications in these case are closed.

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Sd/- B. KEMAL PASHA, JUDGE.

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ul/-

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// true copy //

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P.S. to Judge.

Hazzan v. Abdul Rub Nisthar

Case brief

What is this about?

What did the court decide?

Hazzan v. Abdul Rub Nisthar

Case brief

What is this about?

What did the court decide?

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