Dismissed

M.K.Vijayan v. Gopalan

Kerala HC24 Jan 2017RSA/477/2014

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the second appeal challenging prior decrees in a property suit. The plaintiffs sought declaration of an easement by prescription over a pathway for access to a well and road. Finding the lower courts' findings inconclusible and unsupported by law, the High Court held there was no merit in the appeal.

What did the court decide?

The Regular Second Appeal was dismissed with costs.

M.K.Vijayan Vs Gopalan — 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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TUESDAY, THE 24TH DAY OF JANUARY 2017/4TH MAGHA, 1938

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RSA.No. 477 of 2014 ()

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AGAINST THE JUDGMENT AND DECREE DATED 22-02-2014 IN AS.104/2011 OF SUB COURT, PERUMBAVOOR

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AGAINST THE JUDGMENT AND DECREE DATED 16-08-2011 IN OS.307/2005 OF MUNSIFF'S COURT, PERUMBAVOOR

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APPELLANTS/APPELLANTS/ DEFENDANTS:

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M.K.VIJAYAN, AGED 51 S/O KRISHNAN, MECKATTU HOUSE, THEKKE VAZHAKKULAM KARA,

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VAZHAKKULAM VILLAGE, VAZHAKKULAM P.O. - 683105

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SHEELA, AGED 49 W/O VIJAYAN, MECKATTU HOUSE, THEKKE VAZHAKKULAM KARA, VAZHAKKULAM VILLAGE, VAZHAKKULAM P.O. - 683105

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BY ADVS.SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM

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RESPONDENTS/RESPONDENTS/ PLAINTIFFS:

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GOPALAN, AGED 71 S/O SANKARAN, THOTTAPPILLY HOUSE, THEKKEVAZHAKKULAM KARA, VAZHAKKULAM VILLAGE, KUNNATHUNADU TALUK, VAZHAKKULAM P.O. - 683105

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BHARGAVI, AGED 69

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W/O. GOPALAN, THOTTAPPILLY HOUSE, THEKKEVAZHAKKULAM KARA, VAZHAKKULAM VILLAGE, KUNNATHUNADU TALUK, VAZHAKKULAM P.O. - 683105

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R1 & R2 BY ADVS. SRI.G.RAJAGOPAL

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SMT.S.LEELALAKSHMI

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SMT.N.RENJINI DEVI

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24-01-2017, 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.477 of 2014

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Dated this the 24^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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Challenging the concurrent findings entered by

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the Munsiff's Court, Perumbavoor in O.S. No.307/2005 followed by the Subordinate Judge's Court, Perumbavoor in A.S.No.104/2011, the defendants in O.S. No.307/2005 have come up with the Second Appeal.

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The suit is one for declaration of easement by prescription of the plaintiffs over the C schedule pathway lying at the eastern extremity of plaint B schedule property. Plaint A schedule property was originally the D schedule item in Ext.A1 partition deed of the year 1955. Plaint B schedule property was the C schedule item in the said

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partition deed. As per the said partition deed, plaint A schedule property was allotted to one Kunji Amma and plaint B schedule property, which was included in C schedule item in the said document, was allotted to the share of Janaki Amma, who is the sister of Kunji Amma.

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The property on the eastern side of the said property was allotted to one Achuthan Nair. Thadiyittaparambu – Pookkattupadi PWD road is passing through the eastern side of the entire properties covered by the partition deed. A pathway has been provided in the said partition deed for having access to the PWD road from these properties. The said pathway has a width of 8 links. A provision was made in the partition deed thereby enabling the persons, who are allotted with A, B, C and D schedule properties in the partition deed, to draw water from the well situated in the plaint B schedule property. A provision was made with regard to the pathway also for reaching the said well. According to the plaintiffs, a pathway having a width of

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5.5 feet has been made use of by the plaintiffs for having access to the well, through the eastern extremity of plaint B schedule property. The said pathway is described in the plaint as C schedule item.

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The plaintiffs purchased the plaint A schedule

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property through Ext.A1 sale deed in the year 1977. According to the plaintiffs, the predecessors-in-interest of the plaintiffs and thereafter, the plaintiffs have been openly and continuously making use of the C schedule pathway lying through the eastern extremity of plaint B schedule property for having access from plaint A schedule property to the well as well as to the public road for more than 28 years and thereby, they have acquired right of easement by prescription over the pathway. When there were attempts from the part of the defendants to close down the pathway after their purchasing plaint B schedule item, the suit was filed for declaration and perpetual injunction. Later, the suit was amended by incorporating the relief for mandatory

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injunction also.

In the written statement, the existence of plaint C

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schedule pathway has been denied. The right of easement by prescription claimed by the plaintiffs is also denied. It is contended that the plaintiffs or their predecessors-in-interest had never made use of such a pathway. Nobody, apart from the defendants, have been making use of the well situated in plaint B schedule properly. All the sharers in the partition deed of 1955 had constructed wells in their properties and, therefore, the provision in the partition deed with regard to the user of the well has never come into effect.

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Two Commissioners were appointed by the trial court in the case. The first Commissioner filed Exts.C1 report and C1(a) rough sketch. The second Commissioner filed Exts.C2 report and C2(a) plan, after a survey and measurement of the properties. In both Exts.C1(a) rough sketch and C2(a) survey plan, the existence of plaint C schedule item as a pathway has been described and plotted

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out.

It has clearly come out that old steps are seen at

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the south eastern corner of plaint A schedule property for enabling the occupants of plaint A schedule property to have access to the C schedule pathway. In Exts.C1(a) and C1 report, it has been clearly mentioned that there were attempts from the part of somebody to obstruct C schedule item at its southern side to block the entry of persons through C schedule property in the PWD road. The well situated in plaint B schedule property has also been marked in Ext.C1(a) as well as C2(a) plan. The steps leading to C schedule item from the south eastern corner of plaint A schedule property is also clearly shown in Exts.C1, C1(a), C2 as well as C2(a). It seems that the defendants have no proper explanation with regard to the existence of those steps. Had there been no entry as of right to the plaintiffs from plaint A schedule property into plaint C schedule property, there would not have been such steps leading to

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plaint C schedule from plaint A schedule. That itself militates against the contentions of the defendants regarding the non-existence of plaint C schedule pathway.

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It has clearly come out that initially the suit was decreed ex-part e since the defendants did not contest the suit because of the fact that they had already disposed of plaint A schedule property to one A.R.Sasidharan Nair through Ext.A6. Subsequently, when the decree was put in execution, the said Sasidharan Nair came up with an obstruction. The obstruction petition was also dismissed on merits. Subsequently, he filed an impleading application in the suit and the same was also dismissed. However, the ex-parte decree was set aside ultimately at the instance of the defendants when they came up. Even after that, the suit was decreed. The matter was taken in appeal. The lower appellate court also dismissed the appeal.

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On going through the entire matter, and on hearing either side, this Court is satisfied that there is

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absolutely nothing to interfere with the concurrent findings entered by the learned Munsiff and learned Subordinate Judge, Perumbavoor in the matter. In fact, any question of law does not arise at all. This Regular Second Appeal is devoid of merits and is only to be dismissed with costs, and I do so.

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In the result, this Regular Second Appeal is dismissed

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with costs.

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Sd/- (B.KEMAL PASHA, JUDGE)

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aks/25/01

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// True Copy //

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PA to Judge

M.K.Vijayan v. Gopalan

Case brief

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M.K.Vijayan v. Gopalan

Case brief

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