Partly allowed

Ebenezer Hospital etc. v. Abdul Kalam Azad

Kerala HC11 Jan 2017RSA/1545/2012

Case brief

AI extract

What is this about?

This regular second appeal disposed of disputes regarding a pathway and property boundaries arising from three civil suits. The High Court set aside the lower appellate court's erroneous re-fixing of boundaries, holding title did not extinguish over the pathway. It affirmed that the plaintiff could not claim a declaration of title absent original owners but granted a perpetual injunction against o

What did the court decide?

Appeals disposed of by setting aside erroneous boundary fixes, denying declaration of title, but granting perpetual injunction against obstruction of pathway user and directing joint maintenance of th

Ebenezer Hospital etc. Vs Abdul Kalam Azad — Property and Title | Kerala HC (2017)

¶1

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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WEDNESDAY, THE 11TH DAY OF JANUARY 2017/21ST POUSHA, 1938

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RSA.No. 1545 of 2012 (A)

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AGAINST THE JUDGMENT AND DECREE DATED 15.09.2012 IN AS 16/2011 of ADDITIONAL DISTRICT COURT-I, MAVELIKKARA

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AGAINST THE JUDGMENT AND DECREE DATED 10.12.2010 IN OS 23/2007 of MUNSIFF COURT, KAYAMKULAM

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APPELLANT/3RD RESPONDENT/3RD DEFENDANT:

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EBENEZER HOSPITAL, KAYAMKULAM REPRESENTED BY ITS MANAGING PARTNER DR.JOHN EBENEZER, KAYAMKULAM MURI, KAYAMKULAM VILLAGE, KAYAMKULAM.P.O.

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BY ADV. SRI.K.V.SADANANDA PRABHU

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RESPONDENT/APPELLANT/PLAINTIFF:

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ABDUL KALAM AZAD, AGED 45 YEARS, S/O.K.MOHAMMED KUNJU LEBBA, AZAD BUILDINGS, CHIRAKADAVAM MURI, KAYAMKULAM VILLAGE, KAYAMKULAM P.O., PIN-690 502.

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BY ADVS.SMT.SUMATHI DANDAPANI (SENIOR) SRI.MILLU DANDAPANI (CAVEATOR ADVOCATE)

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11-01-2017, ALONG WITH RSA. 1548/2012 & RSA. 8/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/12/1/17

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B. KEMAL PASHA, J.

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R.S.A. Nos.1545 & 1548 of 2012 and 8 of 2013

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Dated this the 11^th day of January, 2017

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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R.S.A. No.8/2013 has arisen from the judgment

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and decree passed by the Additional District Court-I, Mavelikkara in A.S. No.15/2011, which arose from O.S. No.17/2007 of the Munsiff's Court, Kayamkulam. R.S.A. No.1545/2012 has arisen from the judgment and decree passed by the Additional District Court-I, Mavelikkara in A.S. No.16/2011, which arose from O.S. No.23/2007 of the Munsiff's Court, Kayamkulam. R.S.A. No.1548/2012 has arisen from the judgment and decree passed by the

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RSA.1545&1548/2012 & 8/2013

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: 2 :

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Additional District Court-I, Mavelikkara in A.S. No.32/2011, which arose from O.S. No.17/2007 of the Munsiff's Court, Kayamkulam.

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There were originally three suits, which were jointly tried and disposed of by the Munsiff's Court, Kayamkulam through a common judgment. O.S. No.17/2007 was one filed for declaration and injunction. O.S. No.23/2007 was one filed for perpetual injunction as well as mandatory injunction. O.S. No.103/2007 was filed for the fixation of boundary of the scheduled property.

¶28

The parties are referred to in the order in which the parties are referred in O.S. No.17/2007. All the properties in question involved in these suits originally belonged to late Edward Rosario. He had three sons namely, Lawrence Rosario, Mervin Rosario and Hubert Rosario. The total extent of the property was 66.5 cents. Edward Rosario executed Ext.A6 registered Will on 19.11.1981, thereby bequeathing his aforesaid properties to

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RSA.1545&1548/2012 & 8/2013

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: 3 :

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his three sons. The southern portion of the property abutting the road side, having an extent of 30 cents, was bequeathed to Lawrence Rosario and Mervin Rosario in equal shares of 15 cents each. The northern most portion of the property having an extent of 36.5 cents was bequeathed to Hubert Rosario.

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In Ext.A6 Will, he has provided a pathway through the eastern extremity of the properties for having access to the southern road. The following terms were recited in Ext.A6 Will :-

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“Nobody shall obstruct the transportation facility through the eastern extremity of the property for having access to the southern road. The persons, who are allotted with item No.1 and 2 property in this document, shall equally make use of the corridor situated at the middle of the shop building.”

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Subsequently, the legatees have parted with the

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properties. The respondent herein initially purchased 4 cents of property through Ext.B2 and thereafter, 7.919 cents

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RSA.1545&1548/2012 & 8/2013

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: 4 :

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of property through Ext.B1 from Mervin Rosario. Similarly, he purchased 4 cents of property through Ext.B3, 4 cents of property through Ext.B5 and lastly, 5 cents of property through Ext.B4, from Laurence Rosario. In Exts.B1, B2, B3, B4 as well as B5, both Mervin Rosario and Laurence Rosario had identified and acknowledged the existence of the pathway through the eastern extremity of the property and had further acknowledged that the said pathway was being used by Hubert Rosario.

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Even though an extent of 30 cents of property was bequeathed to both Laurence Rosario and Mervin Rosario, they had limited their claims to a lesser extent of property, evidently because of the provision regarding that pathway. Mervin Rosario had acknowledged that he had only 11.919 cents of property in his possession and he had transferred that extent only. Laurence Rosario had initially claimed only 11.879 cents of property instead of 15 cents of property. He executed Ext.B3 at first, followed by Ext.B5.

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RSA.1545&1548/2012 & 8/2013

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: 5 :

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Ext.B3 was executed for 4 cents of property and in that document, he had acknowledged about the balance property as 7.879 cents. Subsequently, he executed Ext.B5 for 4 cents of property. In that document also, he had acknowledged his then possession over an extent of 7.879 cents of property only. Even though the balance property could only be 3.879 cents only, it seems that Ext.B4 was executed for 5 cents of property by including one cent of property as excess land. Whatever it is, through Exts.B1 to B5, the total extent of property to which the respondent is entitled, is 24.919 cents.

¶43

Similarly, Hubert Rosario also sold out his property to one Reji Cheriyan and his wife through Exts.A1 and A2 sale deeds. Through Exts.A1 and A2, he sold 39.5 cents of property by including 36.5 cents of property originally allotted to him as item No.3 in Ext.A6 Will together with 3 cents of property, which was allegedly set apart by the parties as pathway through the eastern extremity of the

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RSA.1545&1548/2012 & 8/2013

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: 6 :

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property. Subsequently, during the pendency of these suits, the 3^rd plaintiff, who is the present appellant, purchased the said property from Reji Cheriyan and his wife through Ext.A5.

¶47

Thereafter, disputes have arisen with regard to the user of the pathway. According to the appellant/3^rd plaintiff, the user of the said pathway was attempted to be obstructed by the defendant and his henchmen. O.S. No.17/2007 was initially filed as a suit for injunction simplicitor. The said relief sought for was as follows:-

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“The defendant and his men are to be restrained from trespassing into the plaint schedule property and from committing waste thereon and also from creating any obstruction or hindrance to the user of the plaintiff over the pathway and from causing any obstruction to the constructions in the plaint schedule property, etc.”

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Subsequently, a relief of declaration of title and possession

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over the 3 cents of property shown as pathway was incorporated through an amendment.

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RSA.1545&1548/2012 & 8/2013

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: 7 :

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O.S. No.23/2007 was filed by the respondent as

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plaintiff seeking the restoration of plaint B and C schedule properties (precisely the pathway in question) to its original state by removing gravel and debris allegedly put by the plaintiff on the pathway in question, through a decree of permanent mandatory injunction. A decree of perpetual injunction was also sought for, for restraining the plaintiff from plying mini lorries and heavy vehicles through plaint B and C schedule portions and from causing any damage to the building in plaint A schedule property.

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O.S. No.103/2007 was filed by the respondent as

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plaintiff for fixing the northern boundary of plaint A schedule property, etc.

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Initially, the trial court decreed O.S. No.17/2007 by granting a decree of perpetual injunction as prayed for. At the same time, the relief of declaration was denied by the trial court. Consequently, two appeals were filed by the parties as A.S. No.15/2011 as well as A.S. No.32/2011.

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RSA.1545&1548/2012 & 8/2013

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: 8 :

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O.S. No.23/2007 was dismissed by the trial court and consequently, the respondent herein filed A.S. No.16/2011. O.S. No.103/2007 was decreed by the trial court, thereby fixing the northern boundary of the property of the respondent as 'FE' line. No appeal has been preferred by any of the parties on the judgment and decree in O.S. No.103/2007 and thereby the same became final.

¶61

It seems that the lower appellate court has treated A.S. No.32/2011 as an appeal preferred on the judgment and decree in O.S. No.103/2007. Disregarding the fact that no appeal has been filed against the judgment and decree in O.S. No.103/2007 thereby the judgment and decree passed by the trial court in the said suit have become final, the lower appellate court has proceeded to adjudicate A.S. No.15/2011, A.S. No.16/2011 and A.S. No.32/2011 as appeals against judgment and decree in O.S. No.17/2007, O.S. No.23/2007 as well as O.S. No.103/2007. The said exercise made by the lower appellate court is per

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RSA.1545&1548/2012 & 8/2013

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: 9 :

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se illegal since no appeal has been preferred on the judgment and decree in O.S. No.103/2007. Therefore, no interference was invited by the lower appellate court in the judgment and decree in O.S. No.103/2007. At the same time, the lower appellate court has erroneously gone into the question of modifying the judgment and decree passed by the trial court in O.S. No.103/2007 also. The lower appellate court has re-fixed the northern boundary of the respondent's property as 'FM' line instead of 'FE' line. The same was not expected from the lower appellate court since no interference was required in the judgment and decree in the said suit.

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Even though none of the parties have sought for such a relief, the lower appellate court has proceeded to fix the eastern boundary of the respondent's property by overlooking Ext.C4(a) plan, which is admitted and being relied on by both parties. The lower appellate court had proceeded to fix the eastern boundary through 'MNO' line

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RSA.1545&1548/2012 & 8/2013

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: 10 :

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instead of 'BCDE' line. The said exercise was also manifestly erroneous. In fact, it has become concluded that the eastern boundary of the property of the respondent is 'BCDE' line. Matters being so, all the findings entered by the lower appellate court in respect of the northern boundary as well as the eastern boundary of the property of the respondent are liable to be set aside. All the observations by which the lower appellate court had come to the said conclusions are also liable to be set aside.

¶69

The learned counsel for the appellant has argued that a true interpretation of Ext.A6 Will only gives right to the grant of the pathway in favour of Hubert Rosario alone, and not for Laurence Rosario and Mervin Rosario. The argument is that when both Laurence Rosario and Mervin Rosario had identified the right of user of Hubert Rosario alone over the pathway, the respondent cannot claim any right over the pathway. It has also been argued that the respondent had not purchased any portions of the pathway through any of

¶70

RSA.1545&1548/2012 & 8/2013

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: 11 :

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the documents from Laurence Rosario or Mervin Rosario and, therefore, the respondent cannot claim any right or interest over the pathway. It is also argued that even if a right of easement by grant is being claimed by the respondent as the successor in interest of the properties of Laurence Rosario and Mervin Rosario, the same came to an end because of the fact that the entire dominant tenement in favour of Laurence Rosario and Mervin Rosario does not exist at present, on account of the sale of their properties and, therefore, according to the learned counsel for the appellant, the appellant is entitled to get a declaration as sought for.

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Per contra , the learned Senior Counsel for the respondent has argued that the respondent purchased the properties in bits on various occasions through Exts.B1 to B5, solely with an idea that he could clearly make use of the pathway provided by the original testator, as an easement by grant. It is argued that when such an easement by grant

¶74

RSA.1545&1548/2012 & 8/2013

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: 12 :

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is prescribed in the document, all the legatees are entitled to have the user of such an easement by grant. It has been further argued that the title of Laurence Rosario and Mervin Rosario will not extinguish over the portion set apart as pathway by the parties and, therefore, the plaintiff is not entitled to have a declaration as sought for, especially, in the absence of Laurence Rosario and Mervin Rosario in the party array. It is also argued that the respondent has no other pathway to have an access to the southern road from his properties, otherwise than through the pathway in question, because of the fact that on all the other portions of the southern boundary, a shop building is in existence.

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On hearing either side, this Court is satisfied that without any serious heartburn to both sides, these appeals can be disposed of. In fact, even if it is an easement by grant in favour of Hubert Rosario alone, it has to be concluded that the title of Laurence Rosario and Mervin Rosario over that portion of the property did never

¶78

RSA.1545&1548/2012 & 8/2013

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: 13 :

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extinguish. In the relief of injunction sought for in O.S. No.17/2007, the plaintiff has limited his relief as far as the pathway is concerned to the effect that his user of the pathway should not be obstructed by the defendant in any manner. In the relief of perpetual injunction, the plaintiff has not sought for a relief to the effect that the defendant or his men should not enter or trespass into the pathway or any portions thereof.

¶81

Regarding the relief of declaration, this Court is of the view that the observations and findings entered by the trial court are correct. When the title of Laurence Rosario and Mervin Rosario over the portions of the property, which is set apart as pathway, did not extinguish, the plaintiff alone cannot claim a declaration of his title or possession over that portion of the property, especially when Laurence Rosario and Mervin Rosario were not made parties to the suit. Therefore, no doubt, the plaintiff is entitled to the relief of injunction sought for in O.S. No.17/2007. Matters being so,

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RSA.1545&1548/2012 & 8/2013

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: 14 :

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the question of any further interpretation of the provisions in the Will, in a particular manner, does not arise at present.

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Regarding A.S.No.16/2011 filed by the

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respondent herein, as appellant before the lower appellate court on the judgment and decree in O.S. No.23/2007, it has to be noted that the parties have to follow Ext.C4(a) plan for identifying their properties and the pathway. The northern boundary of the property of the respondent has to be fixed as 'FE' line, instead of 'FM' line shown in the appellate judgment. Similarly, all the observations and findings regarding the eastern boundary of the respondent’s property in A.S. No.16/2011 are erroneous and, therefore, the same are also liable to be set aside. The eastern boundary of the respondent’s property is 'BCDE' line in Ext.C4(a) plan. There is nothing to show that there was any encroachment into the portions coming within 'ABCDEF' plot, which is the property of the respondent and, therefore, any relief of mandatory injunction as sought for is quite unnecessary.

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RSA.1545&1548/2012 & 8/2013

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: 15 :

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As far as the prohibitory injunction sought for is concerned, it has to be noted that when a pathway has been provided, it is for the vehicular transport also. In such case, when a pathway is already there, none of the parties need be restrained from taking vehicles through the pathway. At the same time, the appellant or his men when taking vehicles through the pathway, should see that no harm or damage is caused to the building of the respondent situated in his property. Therefore, the injunction, to which the respondent is entitled to, can be limited to the aforesaid aspect alone. Regarding O.S. No.103/2007, no interference is called for in the judgment and decree passed by the trial court. The northern boundary of the respondent’s property is fixed as 'FE' line in Ext.C4(a) plan.

¶90

During the hearing of these appeals, it has come out that the parties to these appeals want to make use of the pathway in question. Considering the relief sought for in the said suits and the observations made by this Court

¶91

RSA.1545&1548/2012 & 8/2013

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: 16 :

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earlier, this Court is satisfied that both the parties can make use of the pathway drawn in Ext.C4(a) as 'BCDERQP'. That should be the pathway in question, over which the parties can have the right of user. Both the parties or any of them shall maintain the said pathway properly. None of the parties shall obstruct the maintenance or free user of the pathway in any manner.

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In the result, these appeals are disposed of as above.

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/DSV/13/01

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// True Copy //

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PA to Judge

Ebenezer Hospital etc. v. Abdul Kalam Azad

Case brief

What is this about?

What did the court decide?

Ebenezer Hospital etc. v. Abdul Kalam Azad

Case brief

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