Allowed

Kattarkandy Gopalan v. P.Rajan

Kerala HC15 Feb 2017RSA/375/2014

Case brief

AI extract

What is this about?

This second appeal concerned a dispute over property boundaries and right of way between brothers. The court held that while the defendants obstructing a compound wall was unjustified, the appellant could not reopen the southern entrance as that portion serves as a pathway. The appeal was allowed in part.

What did the court decide?

Decree of perpetual injunction restraining respondents from obstructing the construction of a compound wall on the property plotted as BHIJKNM in Ext. C2(b) plan.

Kattarkandy Gopalan Vs P.Rajan — Property and Title | Kerala HC (2017)

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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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WEDNESDAY, THE 15TH DAY OF FEBRUARY 2017/26TH MAGHA, 1938

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RSA.No. 375 of 2014 (C)

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AGAINST JUDGMENT DATED 18-11-2009 IN AS 184/2007 of PRL.SUB COURT, KOZHIKODE

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AGAINST JUDGMENT DATED 03-08-2007 IN OS 165/2006 of PRL.M.C.-I, KOZHIKODE

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APPELLANT(S)/APPELLANT/PLAINTIFF:

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KATTARKANDY GOPALAN, AGED 63 YEARS, SON OF K.K RAMAN NAIKER,6.662,GOKULAM,PANAMKANDY PARAMBA,6/663,R.C ROAD,KALATHINKUNNU AMSOM AND DESOM OF KOZHIKODE TALUK.

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BY ADV. SRI.JACOB ABRAHAM

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RESPONDENT(S)/RESPONDENTS/DEFENDANTS:

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1. P.RAJAN, AGED 57 YEARS, SON RAMAN NAIKER,PANAMKANDY PARAMBA,6/663,R.C ROAD,KALATHINKUNNU AMSOM ANDDESOM OF KOZHIKODE TALUK 673 001.

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2. P.ASOKAN, AGED 47 YEARS, SON OF RAMAN NAIKER,PANAMKANDY PARAMBA,6/663,R.C ROAD,KALATHINKUNNU AMSOM AND DESOM OF KOZHIKODE TALUK 673 001.

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3. P.JAYAKUMAR,AGED 43 YEARS, SON OF RAMAN NAIKER, PANAMKANDY PARAMBA,6/663,R.C ROAD, KALATHINKUNNU AMSOM AND DESOM OF KOZHIKODE TALUK 673 001.

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4. MOHANKUMAR, AGED 42 YEARS, SON OF SAMI, PANAMKANDY PARAMBA,6/663,R.C ROAD, KALATHINKUNNU AMSOM AND DESOM OF KOZHIKODE TALUK 673 001.

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R1-R4 BY ADV. SRI.P.V.KUNHIKRISHNAN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15-02-2017, 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. 375 of 2014

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............................................................... Dated this the 15^th day of February, 2017

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J U D G M E N T

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Challenging the concurrent findings entered by the Principal Munsiff's Court-I, Kozhikode in O.S.No.165/2006, followed by those of the Subordinate Judge's Court, Kozhikode in A.S.No.184/2007, the plaintiff in the suit has come up with this second appeal.

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The suit is one for perpetual injunction as well as mandatory injunction. The plaintiff has sought for a decree of perpetual injunction restraining the defendants from using plaint B schedule property as a pathway, and from obstructing the construction of a compound wall on the western side of plaint B schedule property. A mandatory

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R.S.A.375 of 2014

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-: 2 :-

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injunction was sought for to reopen the entrance on the Southern compound wall of plaint A schedule property which was in existence and presently closed by the defendants. The defendants set up a counter claim based on Ext.B4 agreement dated 18.11.2002 by seeking a declaration that plot A referred to in the agreement belongs to the defendants and that the plaintiff has no right to raise any claim over that portion. A relief of perpetual injunction against the plaintiff from interfering with the possession and enjoyment of the defendants over plot A marked in the plan attached to Ext.B4 agreement and a further relief of perpetual injunction that the plaintiff shall not in any way alter the said plot A were also sought for in the counter claim. A third relief was also sought for in the said counter claim that the plaintiff shall not alter the nature of the pathway having a width of 9 feet situated at the Southern extremity of the plaint B schedule property.

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The trial court, after recording the evidence and

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R.S.A.375 of 2014

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-: 3 :-

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on hearing both sides, dismissed the suit as well as the counter claim. The plaintiff took up the matter before lower appellate court through A.S.No.184/2007, challenging the dismissal of the suit. The defendants preferred a cross objection challenging the dismissal of the counter claim. The lower appellate court heard the appeal as well as the cross objection, and dismissed the appeal as well as the cross objection thereby confirming the judgment and decree passed by the trial court. The plaintiff alone has come up with this second appeal. No appeal has been preferred against the dismissal of the cross objection.

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The second appeal has been admitted by this Court on the following substantial questions of law formulated in the memorandum of appeal:

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“(1) When the claim of the respondents to the right of way is based on an agreement and when the agreement was found to be not enforceable and binding on the parties to it whether the court below is justified in

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R.S.A.375 of 2014

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-: 4 :-

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granting right of way on the basis of easement by prescription?

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(2) Whether long user alone entitles a person to claim right of way by easement of prescription?

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(3) If there is only one way, can one claim easement by prescription? (4) Whether other co-owners can object a co-owner when he makes an opening in the wall on the co-ownership property which gives one more access to the common property and thereby enhances the value of the property?

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(5) When an access can be created without any expense whether the respondents are justified in claiming right of way over another's property which is burdensome on the part of the appellant? (6) When a plaint claim and counter claim are dismissed whether a cross objection challenging the dismissal of the counter claim is maintainable in the appeal filed against the plaint claim or a separate appeal should be filed?

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R.S.A.375 of 2014

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-: 5 :-

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(7) When the points raised in the counter claim of the respondents is rejected and became final is the court below justified in not treating those issues decided as resjudicata and holding against the respondents in respect of their claim of right of way made in the counter claim?”

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Heard the learned counsel for the appellant and

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the learned counsel for the respondents.

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The appellant plaintiff is the elder brother of defendants 1 to 3. The 4^th defendant is the son of one of their deceased brother. The plaint claim is that the plaint A schedule property having an extent of 5.5 cents originally belong to Kattar Kunhiraman Naikar who is the father of the plaintiff and defendants 1 to 3. He had put up a building in the said property and was residing there. He died intestate in respect of the property in the year 1981, whereby the plaint A schedule property devolved on his wife and children. Thereafter, the plaintiff purchased the undivided share of his

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R.S.A.375 of 2014

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-: 6 :-

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sister Meenakshi over the said property whereby the plaintiff became entitled to 2/9^th share of the property. Presently, the mother is also no more and thereby the plaintiff is entitled to 2/8^th share over the plaint A schedule property.

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Plaint B schedule property having an extent of 11 cents was purchased by the plaintiff. There is a terrace building in the said property. The plaint B schedule property is situated at the eastern side of plaint A schedule property. According to the plaintiffs, there is a lane passing outside the southern boundary of plaint A and B schedule properties from which there can be access to both the properties. It is alleged that earlier entry to plaint A schedule property was from the said lane and subsequently, the defendants closed down the gate from the lane to the plaint A schedule property and started using the gate of plaint B schedule property to have access to plaint A schedule property. When the plaintiff wanted to construct a compound wall to his property, that was resisted and obstructed and hence the

R.S.A.375 of 2014

-: 7 :-

suit.

The defendants contended that there were

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disputes between the parties regarding the pathway and earlier there was a decree in O.S.No.419/1965 of the Munsiff's Court-II, Kozhikode as against the predecessorsin-interest of plaint B schedule property. The decree was in respect of the pathway. The said suit went up to the stage of second appeal before this Court and the decree became final. According to the defendants, the plaintiff, who is the subsequent transferee of plaint B schedule property, is bound by the said Ext.B2 decree. It was also contended that the plaintiffs have suppressed the said decree and has forwarded once again the very same claim that was being mooted by the predecessors-in-interest of plaint B schedule property. It has been further contended that Ext.B4 agreement has been entered into between the plaintiff as the second party and the wife and children of Kattar Kunhiraman Naikar as well as the 4^th defendant as the 1^st

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R.S.A.375 of 2014

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-: 8 :-

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party, on 18.11.2002 whereby the disputes among them were settled by granting plot A out of the plaint A schedule property noted down in the plan appended with Ext.B4 in exchange of plot B from the southern portion of plaint B schedule property. In Ext.B4, it has also been noted that the plaintiff has relinquished his rights over plaint A schedule property. According to the defendants, the plaintiff has deliberately suppressed the execution of Ext.B4 also.

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Much discussion is not required to conclude that Ext.B4 cannot be relied on for any purpose. Even though the terms and conditions contained in Ext.B4 clearly bring it within the purview of a deed of exchange of immovable properties, as on the date of relinquishment or release, as the case may be, the same is not a registered one, and for want of registration the said cannot be relied on for any purpose. Therefore, Ext.B4 does not give rise to any right to the plaintiff or the defendants or any of the parties to Ext.B4 agreement.

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R.S.A.375 of 2014

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-: 9 :-

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It is evident that the plaintiff still continues to be a co-sharer in respect of plaint A schedule property as aforesaid, when Ext.B4 is of no value. According to the learned counsel for the appellant, since the defendants are obstructing his enjoyment of plaint B schedule property, both the courts below ought to have granted a decree of injunction almost in respect of the portion of plaint B schedule property, which is found to be in the possession and enjoyment of the plaintiff. Ext.C2(b) is the survey plan appended with Ext.C2 Commissioner's report. The plaint B schedule property is identified and plotted out in Ext.C2(b) as BHIJKLC having a total extent of 11.25 cents. The plaint A schedule property is shown as ABCDEFG having an extent of 7.75 cents. The Commissioner has noted the portion being used by the defendants as well as the plaintiff as a pathway through the southern portion of plaint B schedule property as MNLC plot having an extent of 1.50 cents. Of course, even if the defendants have any manner

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R.S.A.375 of 2014 -: 10 :-

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of right to make use of the said portion as a pathway by way of easement by prescription, the title of the plaintiff over the said portion will not be extinguished. He has also a right of user over the said portion and at the same time, the said portion should be maintained and kept as a pathway.

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Both the courts below have no case that plaint B schedule property is not identifiable. Both the courts below have not cared to grant a decree of perpetual injunction in favour of the plaintiff in respect of plaint B schedule property on the sole ground that the same includes the pathway marked as MNLC. In such case, both the courts below could have granted a decree of perpetual injunction to the plaintiff in respect of the portions of plaint B schedule property marked as BHIJKNM, which portion is excluding MNLC portion in Ext.C2(b) plan. The plaintiff can construct a compound wall on any of the boundaries of the said BHIJKNM plot and the defendants shall have no manner of right or authority to interfere with such a right of the plaintiff.

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R.S.A.375 of 2014

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-: 11 :-

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It is open to the plaintiff to construct such a compound wall. Matters being so, this Court is satisfied that the aforesaid relief can be granted to the plaintiff. At the same time, the plaintiff is not entitled to the relief (b) sought for in the plaint.

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In the result, this Second Appeal is allowed in part by granting a decree of perpetual injunction to the plaintiff thereby restraining the defendants from obstructing the construction of a compound wall on any of the sides of the property of the plaintiff plotted as BHIJKNM in Ext.C2(b) plan. Ext.C2(b) plan shall be appended with the decree. In the nature of this appeal, the parties shall bear their respective costs.

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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.

Kattarkandy Gopalan v. P.Rajan

Case brief

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Kattarkandy Gopalan v. P.Rajan

Case brief

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