Allowed

Jasna P v. Abbas

Kerala HC10 Oct 2017RSA/80/2015

Case brief

AI extract

What is this about?

In an appeal against concurrent lower court decrees dismissing a suit for declaration of easement by prescription, the High Court allowed the appeal and set aside both decrees. The court held that the failure of the title holder (appellant) to be examined as a plaintiff was fatal, necessitating an open remand with specific directions to both parties for fresh evidence before disposal.

What did the court decide?

Judgments and decrees of courts below set aside; suit remitted to trial court for fresh disposal within 6 months.

Jasna P Vs Abbas — 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 10TH DAY OF OCTOBER 2017/18TH ASWINA, 1939

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RSA.No. 80 of 2015 (A)

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AGAINST THE JUDGMENT AND DECREE DATED 24-11-2011 IN AS 52/2010 of II ADDITIONAL DISTRICT COURT, KOZHIKODE

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AGAINST THE JUDGMENT AND DECREE DATED 25-01-2010 IN OS 469/2008 of ADDITIONAL MUNSIFF COURT-I, KOZHIKODE

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APPELLANT/APPELLANT/2ND PLAINTIFF:

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JASNA P., D/O.MOOSA KOYA, AGED 26 YEARS, "ASNAS", VENGERI AMSOM DESOM, KOZHIKODE TALUK.

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BY ADVS.SRI.K.M.FIROZ SRI.S.KANNAN SMT.M.SHAJNA SRI.B.DEEPAK

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1. ABBAS, AGED ABOUT 49 YEARS, FATHER'S NAME NOT KNOWN, 'MODERN TEXTILES', IN FRONT OF RADHA THEATRE, S.M.STREET, NAGARAM AMSOM DESOM, KOZHIKODE TALUK - 673 008.

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2. K.M.KADEEJA, AGED ABOUT 80 YEARS, W/O.MOOSA, CRESENT, THAMMANOOR AMSOM, ATTINGAL DESOM, HOSDURG TALUK, KANHANGAD, KASARAGOD - 671 315.

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3. M.M.ASHRAF, AGED ABOUT 61 YEARS, S/O.MOOSA, CRESENT, THAMMANOOR AMSOM, ARINGAL DESOM, HOSDURG TALUK, KANHANGAD, KASARAGOD 671 315.

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4. M.M.VAHIDA, AGED ABOUT 59 YEARS, D/O.MOOSA, CRESENT, THAMMANOOR AMSOM ARINGAL DESOM, HOSDURG TALUK, KANHANGAD, KASARAGOD - 671 315.

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RSA.No. 80 of 2015 (A)

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5. M.M.HAYARUNNISA, AGED ABOUT 57 YEARS, D/O.MOOSA, CRESENT, THAMMANOOR AMSOM ARINGAL DESOM, HOSDURG TALUK, KANHANGAD, KASARAGOD - 671 315.

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6. M.M.SAHIRA, AGED ABOUT 55 YEARS, D/O.MOOSA, CRESENT, THAMMANOOR AMSOM ATTINGAL DESOM, HOSDURG TALUK, KANHANGAD, KASARAGOD671 315.

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7. M.M.ABDUL BASHEER, AGED ABOUT 59 YEARS, S/O.MOOSA, CRESENT, THAMMANOOR AMSOM ATTINGAL DESOM, HOSDURG TALUK, KANHANGAD, KASARAGOD 671 315.

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R1 TO R7 BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/-

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B. KEMAL PASHA, J.

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R.S.A. No.80 of 2015

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Dated this the 10^th day of October, 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 the First Additional Munsiff’s Court, Kozhikode in O.S.No.469 of 2008 followed by those of the II Additional District Court, Kozhikode, in A.S.No.52 of 2010, the Additional 2^nd plaintiff in the suit has come up in Regular Second Appeal. During the pendency of the suit before the trial court, the original plaintiff died. Prior to that, he had assigned the property through Exhibit-A1 to the present appellant. The present appellant got herself impleaded in the suit as Additional 2^nd plaintiff.

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The suit is one for declaration and consequential injunction. The case of the plaintiff is that plaint A schedule

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R.S.A. No.80 of 2015

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shop rooms belong to one Kunhilakshmi Amma, were purchased by the 1^st plaintiff through Exhibit-A2 sale deed and Exhibit-A3 release deed of the year 1975. Three shop rooms are there in plaint A schedule item as Room Nos.7/1064, 7/1065 and 7/1066. Room No.7/1065 is on the first floor and Room Nos.7/1064 and 7/1066 are in the ground floor. Earlier, there were tenants in Room No.7/1066 as well as Room No.7/1065. The plaintiff got those tenants evicted through due process of law. There is a staircase on the western side of Room No.7/1066 for enabling the plaintiff to have access to the upper Room No.7/1065. The property on the western side of plaint A schedule property was purchased by the defendants. Plaint B schedule is the only pathway to reach Room No.7/1066 and also to the aforesaid western staircase leading to Room No.7/1065.

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The properties of the plaintiff as well as the

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properties of the defendants were purchased from the common predecessors in interest. On that ground, the

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R.S.A. No.80 of 2015

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plaintiff claims that the plaintiff is entitled to easement by necessity over plaint B schedule property for having access to Room No.7/1066 as well as to the staircase leading to Room No.7/1065. Over an above it, it has been specifically claimed that for the last more than 50 years, the predecessors in interest of the plaintiff, in continuation by the plaintiff, have been making use of plaint B schedule pathway for having access to Room No.7/1066 as well as to the staircase leading to Room No.7/1065, openly, continuously and as of right. In short, easement by prescription has also been specifically pleaded in the plaint. During evidence, the plaintiff has virtually given up the plea of easement by necessity and has concentrated on the plea of easement by prescription.

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The defendants contended that B schedule pathway exclusively belongs to the defendants and they are keeping the said portion under their lock and key. They have contended that for some period, the employees and

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R.S.A. No.80 of 2015

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customers of the defendants in the hotel were permitted to make use of plaint B schedule pathway for having access to the Barber Shop, being conducted in Room No.7/1066 and such user was merely permissive, which cannot invite a right of easement by prescription.

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It has to be noted that the Additional 2^nd plaintiff, who is the appellant, was not examined in the suit. She is the title holder of the plaint A schedule property. Her husband alone was examined as PW1. The son of the deceased 1^st plaintiff was examined as PW2 to prove the prior continuous user of the plaint B schedule property by his father. A commission was taken out by the plaintiff. The Commissioner visited the property twice. Exhibits-C1(a), C1 (b), C2(a) and C2(b) are the report and plans prepared and produced by the learned Advocate Commissioner. Strangely, the Advocate Commissioner was also not examined. The trial court dismissed the suit. Aggrieved by the dismissal, the present appellant preferred A.S.No.52 of

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R.S.A. No.80 of 2015

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2010 before the lower appellate court. The lower appellate court also concurred with the findings entered by the trial court and dismissed the appeal.

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In Exhibit-C1(a), the learned Advocate Commissioner has clearly noted in the last paragraph of page No.3 that at the time of her inspection, she could not see any access other than plaint B schedule for entry to Room No.7/1066 in plaint A schedule item. Further, she has clearly reported that for having access to the staircase at the western side leading to Room No.7/1065 also, B schedule pathway is the only access. It is true that the Commissioner has noted in Exhibit-C2(b) a staircase leading to Room No.7/1065 from the south-western portion of Room No.7/1064.

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The Commissioner has clearly noted the staircase at the western side of Room No.7/1066, which leads to Room No.7/1065. From Exhibit-C2(b), it can be clearly seen that plaint B schedule item is the only pathway leading to

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R.S.A. No.80 of 2015

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Room No.7/1066 as well as the staircase situated at its western side. It is in evidence that all the said three rooms were being occupied by three different persons. Separate tenants were occupying Room No.7/1065 and Room No.7/1066. It cannot be imagined that those tenants were making use of portions of Room No.7/1064 to have access to the said rooms. The Commissioner has not noted any interconnection between Room No.7/1064 and Room No.7/1066.

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Even though the Commissioner has clearly stated in Exhibit-C1(a) that the only access to Room No.7/1066 as well as the staircase leading to Room No.7/1065 is the plaint B schedule item, defendants have not chosen to examine the Commissioner, even when they have contended that there is other access to Room No.7/1066 as well as Room No.7/1065. Strangely enough, the appellant has also not chosen to mount the Box. Instead, her husband was examined as PW1. The evidence tendered by the

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R.S.A. No.80 of 2015

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husband cannot be made use of to prove the plaint averments. The husband of the appellant was only a witness for the plaintiff. The non-examination of the appellant was considered as fatal on the part of the plaintiff by both the courts below. There is no explanation from the part of the plaintiff as to why the appellant was not examined. The appellant as the title holder in respect of the property, who was proceeding with the suit for declaration of the right of easement, ought to have been examined from the side of the plaintiff.

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Even though the defendants have contended that their employees and customers were permitted to have access to the Barber Shop being conducted in Room No.7/1066 for some time, in the absence of any other access to Room No.7/1066, it cannot be said that the plaintiff was not making use of B schedule pathway as an access to the said room as of right. Even though, it was contended that the defendants are keeping plaint B

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R.S.A. No.80 of 2015

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schedule property under their lock and key, PW2 has stated that one of the keys were entrusted with PW2 and his father for their access through plaint B schedule item.

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The rooms involved here are shop rooms. Nobody is residing in plaint A schedule item. Even thought the learned counsel for the respondents has argued that in order to make use of plaint B schedule item as of right, the plaintiff should have access to plaint B schedule on all points of time. When plaint A schedule are shop rooms, the occupants of the rooms as well as the customers need only make use of the access to the staircase as well as Room No.7/1066 from morning till evening. Therefore, it cannot be said that the closure of plaint B schedule item during night will disentitile the user of plaint B schedule item as easement by prescription, in case such user is there.

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All the aforesaid matters have to be proved by the parties. When the plaintiff was not examined, this Court is of the view that an opportunity has to be granted to the

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R.S.A. No.80 of 2015

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plaintiff to examine herself in the suit. Similarly, an opportunity has to granted to the defendants to show that there is alternate access to Room No.7/1066. Instead of a limited remand, this Court is of the view that both the judgments and decrees passed by the trial court as well as the lower appellate court have to be set aside and an open remand has to be made in the matter, thereby enabling both sides to adduce evidence both oral as documentary, if any. The defendants shall be given an opportunity to prove that the plaintiff is not entitled to the claim of easement by prescription. Matters being so, the judgments and decrees passed by both the courts below are liable to be set aside.

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In the result, this Regular Second Appeal is allowed and the judgments and decrees passed by the both the courts below are set aside. The suit is remitted to the trial court for fresh disposal, in accordance with law as aforesaid. Both sides shall be given an opportunity to adduce evidence. The suit being an old one, the trial court shall

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R.S.A. No.80 of 2015

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dispose it of within six months from the date of receipt of the records.

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Parties shall appear before the trial court on 01.11.2017. Till the disposal of the suit, the parties shall maintain status quo. In the nature of this appeal, there is no order as to costs. All the pending interlocutory applications in this Regular Second Appeal are closed.

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Sd/-

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(B.KEMAL PASHA, JUDGE)

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DSV/13/10/17

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/True Copy/

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P.A.To Judge

Jasna P v. Abbas

Case brief

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Jasna P v. Abbas

Case brief

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