Dismissed

Kurian v. K.v.Parameswaran

Kerala HC4 Jan 2017SA/286/2001

Case brief

AI extract

What is this about?

In this second appeal concerning a suit for declaration of easement and injunction, the Kerala High Court dismissed the appeal. The court upheld the trial court's modification of the pathway length and the dismissal of the mandatory injunction, finding that the lower appellate court correctly relied on the Commission Report which showed encroachment did not occur within the disputed portion.

What did the court decide?

Second appeal dismissed; all pending interlocutory applications also dismissed.

Kurian Vs K.v.Parameswaran — Landlord and Tenant | 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 K.HARILAL

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WEDNESDAY, THE 4TH DAY OF JANUARY 2017/14TH POUSHA, 1938

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SA.No. 286 of 2001 (A)

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AGAINST THE JUDGMENT AND DECREE DATED 15-02-2000 IN AS 30/1995 OF THE DISTRICT COURT, THODUPUZHA.

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AGAINST THE JUDGMENT AND DECREE DATED 24-01-1995 IN OS 19/1992 OF THE MUNSIFF'S COURT, THODUPUZHA.

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APPELLANT/APPELLANT/PLAINTIFF:

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KURIAN, S/O. JOSEPH, VARICKAMAKAL HOUSE, MUTTOM VILLAGE, REPRESENTED BY POWER-OF-ATTORNEY JOSEPH, S/O. JOSPH, VARICKAMAKAL HOUSE, MUTTAM VILLAGE.

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BY ADV. SRI.P.R.VENKETESH

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RESPONDENT/RESPONDENT/DEFENDANT:

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1. K.V.PARAMESWARAN, S/O. VASUDEVAN NAMBUDIRI, KADUMARUKU ILLOM, MUTTOM VILLAGE. [DIED]*

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2. SREEDEVI ANTHARJANAM, W/O. PARAMESWARAN NAMBUDIRI, -DO- -DO-

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ADDL.R3.

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SMITHA, D/O. LATE K.V. PARAMESWARAN, KADAMARUKU ILLOM, MUTTOM VILLAGE.

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ADDITIONAL R3 IMPLEADED AND THE ORIGINAL 2ND RESPONDENT RECORDED AS THE L.Hrs. OF DECEASED R1 AS PER THE ORDER DATED 14/9/2007 IN I.A.NO.1223/2007.

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R1 TO 3 BY ADV. SRI.N.JAMES KOSHY

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. HARILAL, J.

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S.A. No. 286 of 2001

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Dated this the 4^th day of January, 2017

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JUDGMENT

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The appellant is the plaintiff in O.S. No.19/1992 on the files of the Munsiff's Court, Thodupuzha, as well as the appellant in A.S. No.30/1995 of the District Court, Thodupuzha. The aforesaid suit was one for declaration and injunction. The plaintiff has prayed for a decree of declaration of right of easement of way by express grant over the plaint 'A' schedule property for the construction of a road and enjoying the same and for a mandatory injunction directing the defendants to demolish the structures and other improvements therein and a prohibitory injunction restraining the defendants from making any construction or other improvements therein or from installing any gate or

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S.A. No. 286 of 2001 -: 2 :-

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other structures so as to obstruct the continuity of the suit property into the present road that reaches up to the southern side of the defendants' property. The suit was decreed, in part, granting declaratory relief and prohibitory injunction; but rejected the prayer for mandatory injunction. Feeling aggrieved, the plaintiff had preferred A.S.No.30/1995 before the District Court, Thodupuzha and the defendants filed a crossobjection therein. After re-appreciating the evidence, on record, the lower appellate court confirmed the findings of the trial court; but modified the length of the pathway by reducing the same to 130 Mtrs. and dismissed the appeal. This Second Appeal is filed challenging the modification of the length of the pathway by reducing the same to 130 Mtrs. and the rejection of the prayer for mandatory injunction.

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The learned counsel for the appellant/plaintiff advanced arguments challenging the modification made by the appellate court in the length of the pathway and the concurrent findings; whereby the

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S.A. No. 286 of 2001 -: 3 :-

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courts below rejected the prayer for mandatory injunction. According to the learned counsel for the appellant, there is no basis for the reduction of the length of the pathway from 160 Mtrs. to 130 Mtrs. So also, it is contended that the courts below have not appreciated the evidence, which would show the encroachment over the disputed portion of pathway, over which the plaintiff acquired easement right by grant.

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On the other hand, the learned counsel for the respondents contended that the reduction of the length of the pathway was made, on the basis of the Commission Report. The rejection of the prayer for mandatory injunction also can be justified, in view of the specific finding in the Commission Report, that there is no encroachment over the disputed pathway portion.

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In view of the rival contentions, the only question to be considered is, whether the lower appellate court is justified in making modification in

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S.A. No. 286 of 2001 -: 4 :-

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the extent of prohibitory injunction granted by the trial court by reducing the length of the pathway from 160 Mtrs. to 130 Mtrs. and the rejection of the prayer for mandatory injunction.

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Going by the Commission Report, it is seen that plaint 'A' schedule property is having a length of 20 Mtrs. along the eastern boundary and 110 Mtrs. along the northern boundary of 'B' schedule property. Thus, the total extent of the length of the pathway is 130 Mtrs. But, the description given in the plaint is that the strip of land having a length of 160 Mtrs. As rightly found by the lower appellate court, the length of the pathway shown in the plaint schedule is not in conformity with the description of the pathway in Ext.C1 Commission Report. Thus, in view of the evidence, on record, the lower appellate court reduced the length of the pathway in conformity with the length of the pathway shown in the Commission Report. It is pertinent to note that the plaintiff has not filed an objection against Ext.C1 Report stating

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S.A. No. 286 of 2001 -: 5 :-

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that the length of the pathway shown in the report is not correct. I do not find any reason to interfere with the modification made in conformity with the evidence, on record i.e, Ext.C1.

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Coming to the rejection of the mandatory injunction, it is sen that the courts below have concurrently rejected the prayer, on the basis of the Commission Report. Ext.C1 Commission Report does not disclose that a construction was made in the disputed property, as alleged by the plaintiff. It is mentioned therein that the construction is made about 45 Mtrs. to the eastern boundary of the plaint schedule property. The disputed property is having only 4 Mtrs. width from the eastern boundary to the west. So, the construction made will not be within the plaint schedule property and there is nothing in Ext.C1 Report to show that the construction lies within the disputed property. Thus, the prayer for mandatory injunction was also rejected, on the basis of the evidence, on record, i.e., Ext.C1 Report.

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S.A. No. 286 of 2001 -: 6 :-

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In the above analysis, I do not find any kind of perversity in the appreciation of evidence on the basis of Ext.C1 Report. There is no illegality or impropriety in the finding; whereby the lower appellate court modified the length of the pathway and rejected the prayer for mandatory injunction. No question of law arises for consideration.

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Hence, this Second Appeal will stand dismissed. All pending Interlocutory Applications will also stand dismissed.

Sd/-

(K. HARILAL, JUDGE)

Nan/

//true copy//

P.S. to Judge

Kurian v. K.v.Parameswaran

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Kurian v. K.v.Parameswaran

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