Partly allowed

Annie Joseph v. Anna

Kerala HC11 Oct 2017RSA/900/2012

Case brief

AI extract

What is this about?

Regular second appeal challenging dismissal of suits for injunction and declaration of title. Appellants claiming ownership of disputed land; respondents claiming prescriptive easement over a pathway. Court found prescriptive easement inapt due to permissive user and declared title in favor of plaintiffs.

What did the court decide?

RSA No.551/2014 allowed; RSA No.900/2012 dismissed. OS No.8/2010 decreed: title declared, injunction granted barring trespass and use of subject land as pathway.

Annie Joseph Vs Anna — Partition | 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 11TH DAY OF OCTOBER 2017/19TH ASWINA, 1939

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RSA.No. 900 of 2012 (F)

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AGAINST THE JUDGMENT AND DECREE DATED 16-12-2011 IN AS 142/2009 of SUB COURT, PALA

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AGAINST THE JUDGMENT AND DECREE DATED 17-12-2009 IN OS 215/2008 of MUNSIF COURT, KANJIRAPPALLY

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APPELLANTS/APPALLANTS/PLAINTIFFS:

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ANNIE JOSEPH, AGED 56 YEARS W/O. JOSEPH, PULLURUTHIKKARIYIL HOUSE, KOOVAPPALLY.P.O., KOOVAPPALLY VILLAGE, KANJIRAPPALLY TALUK.

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JIJO JOSEPH

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S/O. JOSEPH, AGED 34 YEARS, PULLURUTHIKKARIYIL HOUSE, KOOVAPPALLY.P.O., KOOVAPPALLY VILLAGE, KANJIRAPPALLY TALUK.

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BY ADV. SRI.P.C.HARIDAS

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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ANNA

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W/O. ANTHONI, PERUMPARA HOUSE, KOOVAPPALLY .P.O., KOOVAPPALLY VILLAGE, KANJIRAPPALLY TALUK-686518

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ROSAMMA D/O. ANTHONI, PERUMPARA HOUSE, KOOVAPPALLY .P.O., KOOVAPPALLY VILLAGE, KANJIRAPPALLY TALUK-686518

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RAJU, AGED 43 YEARS PERUMPARA HOUSE, KOOVAPPALLY .P.O., KOOVAPPALLY VILLAGE, KANJIRAPPALLY TALUK-686518

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BY ADV. SRI.JOSEKUTTY MATHEW

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11-10-2017, ALONG WITH RSA.551/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B. KEMAL PASHA, J.

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R.S.A. Nos.900 of 2012

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and 551 of 2014

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Dated this the 11^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

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the Munsiff's Court, Kanjirappally in OS No.215/2008 followed by those of the Subordinate Judge's Court, Pala in AS No.142/2009, the plaintiffs in OS No.215/2008 have filed RSA No.900/2012. The suit was for perpetual injunction restraining the respondents from cutting open a new pathway through the eastern portion of plaint schedule item Nos.1 and 2 properties, towards south. OS No.215/2008

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was dismissed by the Munsiff's Court, Kanjirappally on 17.12.2009. Immediately after that the very same plaintiffs filed OS No.8/2010 before the trial court. OS No.8/2010 was

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filed for the declaration of the title and possession of the

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RSA Nos.900/12 & 551/14

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: 2 :

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plaintiffs over plaint schedule item No.3 and also for directing the defendants to restore plaint schedule item No.3 to its original state and further, for restraining the defendants from making use of plaint schedule item No.3 as a pathway. The said suit was also dismissed by the trial court. Even though the same was appealed against, the lower appellate court has also concurred with the findings entered by the trial court and dismissed the appeal, and hence R.S.A. No.551 of 2014.

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The case of the plaintiffs is that the plaint schedule item No.2 property was purchased by the 2^nd plaintiff through Ext.A6 sale deed in the year 2006, and plaint item No.1 property was purchased by the 1^st plaintiff in the year 2008 through Ext.A3 sale deed. The 1^st plaintiff is the mother of the 2^nd plaintiff. The 2^nd plaintiff has put up a building in plaint schedule item No.2. According to the plaintiffs, there is a pathway which starts from Koovappally - Perumpara road situated at the north and the said pathway

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RSA Nos.900/12 & 551/14

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: 3 :

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proceeds towards south and it ends at the north-western corner of the property of the defendants. For having access to the said Koovappally - Perumpara road, the plaintiffs are also making use of that pathway, for which a gate has been put up by the 2^nd plaintiff at about the middle portion of the eastern boundary of plaint schedule item No.2 property. Plaint schedule item No.1 is situated at the southern side of plaint schedule item No.2. There was a shed situated almost at the north-eastern corner of plaint schedule item No.1, which was being used as a store room by the plaintiffs. Defendants are residing in their property situated at the eastern side of plaint schedule item No.1. The defendants are making use of the aforesaid pathway leading towards north and ends at the Koovappally - Perumpara road for having to and fro access.

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The Kanjirappally - Erumeli road is situated at the southern side of plaint schedule item No.1. There is a concrete road connecting Koovappally - Perumpara road

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RSA Nos.900/12 & 551/14

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: 4 :

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with Kanjirappally - Erumeli road and the said concrete road passes just through the eastern side of the property situated just east to the property of the defendants.

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While dealing with OS No.215/2008, the trial court found that, the plaintiffs had constructed a wall just at the southern side of the gate of the defendants just before filing the suit, evidently for obstructing the entry towards further south. The trial court was of the view that the plaintiffs did not approach the trial court with clean hands with the said suit for injunction and it was mainly on that ground, the suit was dismissed. The lower appellate court also concurred with the findings entered by the trial court, and dismissed the appeal.

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According to the plaintiffs, after the dismissal of the suit on 17.12.2009, the defendants trespassed into the eastern portions of plaint schedule item No.2 as well as plaint schedule item No.1 and cut open a new pathway having a width ranging up to 75 cms., from the southern

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RSA Nos.900/12 & 551/14

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: 5 :

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side of their gate portion to the Kanjirappally - Erumeli road through the eastern extremity of plaint schedule item No.2 and plaint schedule item No.1. The said pathway is scheduled as plaint schedule item No.3. According to the plaintiffs, extensive damage was caused by the defendants for cutting open the said new pathway. They have demolished the newly constructed wall made of hollow bricks and the eastern portions of the shed situated in plaint schedule item No.2, and also cut and removed several coffee plants aged 30 years and above. According to the plaintiffs. According to the plaintiffs, the dismissal of OS No.215/2008 has given the immediate provocation to the defendants to do the said mischief. The said mischief was allegedly committed on 22.12.2009 and hence, OS No.8/2010.

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RSA No.900/2012 is admitted on the following

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substantial questions of law:-

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“(i) Are the courts below right in

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RSA Nos.900/12 & 551/14

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: 6 :

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dismissing the suit when respondents have no defence based on a legal right?

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(ii) Whether courts below are justified in not considering the prayer for an injunction restraining the respondents from causing any obstruction to the appellants using item No.3 way?

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(iii) Whether courts below are right in finding existence of a way towards south from item No.3 ignoring the fact that the Commissioner has not reported the same and the respondents failed to bring to the notice of the Advocate Commissioner as to the existence of the remnants and wooden steps alleged to have been in existence in the alleged way and solely on the basis of interested testimony of DW1?

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(iv) Are the courts below right in finding that there is no pleadings in the plaint as to cause of action?”

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RSA No.551/2014 is admitted on the following substantial question of law:-

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“Were the courts below justified in dismissing the suit when the Commissioner on inspection

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RSA Nos.900/12 & 551/14

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: 7 :

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found that the extent of the property claimed by the plaintiffs is 10.40 Ares but the title deed contains only a lesser extent?”

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Heard learned counsel for the appellants and learned counsel for the respondents.

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The learned counsel for the appellants has pointed out that the courts below have non-suited the plaintiffs without any valid reasons and without appreciating the evidence properly. According to the learned counsel for the appellants, the trial court has not considered Ext.A3 and Ext.A8, and has discarded Ext.A6. It has been argued that the plaintiffs could prove their title over plaint schedule item No.3. It has been further argued that the defendants have given a go by to the pleadings regarding the right of easement by prescription over plaint schedule item No.3 when the suit came up for evidence. It has been pointed out that DW1 has clearly admitted in Box that the defendants were making use of plaint schedule item No.3 as permitted

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RSA Nos.900/12 & 551/14

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: 8 :

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by the predecessors-in-interest of the plaintiffs and also by the plaintiffs.

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Per contra , the learned counsel for the

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defendants has argued that the defendants and their predecessors-in-interest and also various members of the public have been making use of the said plaint schedule item No.3 pathway for access to Kanjirappally - Erumeli road. Further, they have been making use of plaint schedule item No.3 as a shortcut for access to Kanjirappally - Erumeli road from Koovappally - Perumpara road. The learned counsel for the respondents has argued that the respondents are entitled to the right of easement of prescription over plaint schedule item No.3. According to the learned counsel for the respondents, DW1 is a tapping worker and without knowing the consequences, he had given some stray answers in his cross-examination as DW1, which cannot militate against the case of the defendants regarding the right of easement by prescription over plaint

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RSA Nos.900/12 & 551/14

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: 9 :

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schedule item No.3. It has also been argued that the prior document of Ext.A3 is Ext.A1 and what was devolved on the predecessors-in-interest of the property covered by Ext.A3 was 10.11 Ares only. At the same time, through Ext.A3, what was conveyed was 10.40 Ares, which is far in excess of what devolved on the executant of Ext.A3. The argument is that Ext.A3 was cooked up for appropriating the plaint schedule item No.3 pathway as portions of plaint schedule item Nos.1 and 2.

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Defendants contended that the pathway was in question was in existence for the last more than 40 years, and various persons including the public have been making use of that pathway for having access from Koovappally - Perumpara road to Kanjirappally - Erumeli road as a shortcut. It is further contended that the defendants have also been making use of that pathway for having access to Kanjirappally - Erumeli road. The contentions resorted to by the defendants in the written statement reveal that they

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RSA Nos.900/12 & 551/14

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: 10 :

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wanted to project the right of easement by prescription over the pathway even though that right has not been clearly stated in the written statement.

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The fact that there is a pathway from the middle portion of the plaint schedule item No.2 property at its eastern side, for access to Koovappally - Perumpara road is admitted. It is the specific case of the plaintiffs that there was no such corresponding access from that portion towards south to the Kanjirappally - Erumeli road. On the contrary, the defendants contended that the pathway which starts from Koovappally - Perumpara road continues as such and ends at the Kanjirappally - Erumeli road. It is true that the plaintiffs had constructed a hollow bricks wall for restraining anybody to have access towards south from the southern side of the gate leading to the property of the defendants. It was on that ground, OS No.215/2008 was dismissed. It is evident that the dismissal of OS No.215/2008 gave provocation to the defendants to cut

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RSA Nos.900/12 & 551/14

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: 11 :

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open a new pathway towards south through eastern portions of plaint schedule item Nos.2 and 1, to the Kanjirappally - Erumeli road, through the eastern extremity of the said properties, immediately after the dismissal of the suit. For cutting open such a pathway, they demolished the hollow bricks wall, cut and removed various coffee plants aged above 40 years, and also demolished the eastern portion of the shed situated in plaint schedule item No.1. Ext.C2 series Commissioner's report, Ext.C2 sketch and Exts.C2(b) to (z) photographs clearly reveal the extensive damage caused at the eastern extremity of plaint schedule item Nos.1 and 2 for cutting open a new pathway. It clearly shows that a new pathway has been cut open through the said portions. It has to be noted that the pathway leading towards north has well defined boundaries on either side. The said pathway is lying at a lower level in between two walls at its eastern and western sides. At the same time, there are no such separating boundaries for the newly

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RSA Nos.900/12 & 551/14

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: 12 :

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constructed pathway. The photographs clearly show the spot from where the coffee plants were cut and removed. Its stumps can be clearly seen in the photographs appended in Ext.C2 series.

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It has further come out that Kanjirappally - Erumeli road is situated at a higher level of 6 feet from the plaint schedule item No.3. One cannot have an easy access to the said road from plaint schedule item No.3. New steps were seen constructed at the side of the said road for having access from plaint schedule item No.3. The learned counsel for the plaintiffs has pointed out that apart from the said height, there is a wall at the northern side of the Kanjirappally - Erumeli road having a height of 2 feet. A person has to climb over 6 feet and further has to climb over the 2 feet height side wall of the road to have access from plaint schedule item No.3 to the said road. From Ext.C2 series, it is evident that plaint schedule item No.3 was a newly constructed one. Evidently, plaint schedule item No.3

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RSA Nos.900/12 & 551/14

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: 13 :

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was constructed just after the dismissal of OS No.215/2008.

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The next question to be considered is as to what

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is the right being claimed by the defendants over plaint schedule item No.3. At first, it was contended that it was a public pathway. There is absolutely no evidence to show that it was a public pathway. The next contention was that they have the right of easement by prescription to make use of plaint schedule item No.3. The learned counsel for the appellants has invited the attention of this Court to the series of admissions of DW1 in his cross-examination. He has categorically admitted that the so-called user of plaint schedule item No.3 by him and other defendants are merely permissive. He admitted that the earlier title holder of the plaint schedule item Nos.1 and 2 properties had permitted them and thereafter, the predecessors-in-interest of the plaintiffs permitted them, and thereafter the plaintiffs also permitted them to make use of plaint schedule item No.3 as a pathway. The said clear admission clearly militates against

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RSA Nos.900/12 & 551/14

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: 14 :

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the case of right of easement by prescription. Permissive user for whatever period will never ripen into a right of easement by prescription. It will never invite the ingredients of Section 15 of the Indian Easement Act since the said user is not 'as of right'.

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The courts below have non-suited the plaintiffs mainly on two grounds. The first ground is that Ext.A1 covers only 10.11 Ares of property whereas, through Ext.A3, a higher extent of 10.40 Ares were seen conveyed. The learned counsel for the appellants has pointed out that Ext.A8 re-survey plan, the veracity of which has not been under challenge, clearly shows the extent of the plaint schedule item No.1 property as 10.40 Ares even though Ext.A1 title deed of the predecessor-in-interest showed the extent as 10.11 Ares. When the correct extent was traced out as 10.40 Ares through Ext.A8 re-survey plan, what could be conveyed through Ext.A3 was also the said extent covered by the re-survey plan and consequently, Ext.A3 was

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RSA Nos.900/12 & 551/14

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: 15 :

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executed for 10.40 Ares. Nobody, except the 1^st plaintiff, claims title over any portions of plaint schedule item No.1. What has been claimed by the defendants is a right of easement by prescription, which means that they are also admitting the title of the 1^st plaintiff over plaint schedule item No.1. The prescriptive right of easement claimed by the defendants is also not maintainable. Nobody has a case of adverse possession over any of the portions of plaint schedule item No.1. When Ext.A3 on the basis of Ext.A8 shows the correct extent of the property as 10.40 Ares, the courts below ought not to have non-suited the plaintiffs based on that aspect. Regarding Ext.A6 by which the 2^nd plaintiff acquired plaint schedule item No.2 property, the trial court has not given any cogent reason at all. The reasons adopted by the trial court as against the contents of Ext.A6 are against commonsense.

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Matters being so, the courts below ought not to have non-suited the plaintiffs. The plaintiffs are entitled to

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RSA Nos.900/12 & 551/14

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: 16 :

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have their title declared over plaint schedule item No.3. It seems that the lower appellate court has simply rewritten and imitated the stand taken by the trial court without appreciating any of the grounds raised before the lower appellate court. Matters being so, both the judgments and decrees passed by the courts below are liable to be set aside. OS No.8/2010 is only to be decreed, and I do so.

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Regarding OS No.215/2008, this Court is of the view that it has become infructuous in view of the decree to be passed in OS No.8/2010. Therefore, RSA No.900/2012 is only to be dismissed.

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In the result, RSA No.551/2014 stands allowed and RSA No.900/2012 stands dismissed. The judgments and decrees passed by the courts below in OS No.8/2010 and AS No.70/2011 are set aside. OS No.8/2010 is decreed as follows:-

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(a) The title and possession of the plaintiffs over plaint schedule item No.3 is

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RSA Nos.900/12 & 551/14

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: 17 :

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declared. It is declared that plaint schedule item No.3 forms part of plaint schedule items 1 and 2.

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(b) The defendants and their men and anybody claiming under them are restrained by a decree of perpetual injunction from trespassing into any of the portions of plaint schedule item No.3 and they are restrained from making use of plaint schedule item No.3 as a pathway.

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In the nature of these appeals, the parties shall bear their respective costs. Ext.C1(a) plan shall form part of the decree. All pending interlocutory applications in these appeals are closed.

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Sd/-

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(B.KEMAL PASHA, JUDGE)

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aks/13/10

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// True Copy //

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PS to Judge

Annie Joseph v. Anna

Case brief

What is this about?

What did the court decide?

Annie Joseph v. Anna

Case brief

What is this about?

What did the court decide?

What the court decided

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