Remanded

Sukumari v. Unniyathi

Kerala HC22 Feb 2018RSA/1133/2015

Case brief

AI extract

What is this about?

This second appeal dealt with suits concerning a water channel and easement rights. The High Court held that lower courts failed to address vital pleadings and misdirected the parties. The appealed judgments were set aside, and cases remanded to the trial court for fresh adjudication with leave to rectify pleadings.

What did the court decide?

Impugned judgments and decrees set aside; matters remitted to trial court for fresh adjudication within six months.

Sukumari Vs Unniyathi — Landlord and Tenant | Kerala HC (2018)

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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 A.HARIPRASAD

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THURSDAY, THE 22ND DAY OF FEBRUARY 2018 / 3RD PHALGUNA, 1939

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RSA.No. 1133 of 2015

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AGAINST THE JUDGMENT & DECREE DATED 31-03-2012 IN AS 59/2008 of SUB COURT, MUVATTUPUZHA

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AGAINST THE JUDGMENT & DECREE DATED 04-06-2008 IN OS 486/2004 of MUNSIFF COURT, MUVATTUPUZHA

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APPELLANTS/APPELLANTS/ADDL.PLAINTIFFS 2 TO 5

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1. SUKUMARI, AGED 75 YEARS, W/O.LATE KUNJAN SHANKARAN, RESIDING AT PUTHENPUREYIL, KUROOR KARA, KOTHAMANGALAM VILLAGE, PIN - 686691 ERNAKULAM DISTRICT 2. SHINE, AGED 50 YEARS S/O.LATE KUNJAN SHANKARAN, RESIDING AT PUTHENPUREYIL, KUROOR KARA, KOTHAMANGALAM VILLAGE, PIN - 686691 ERNAKULAM DISTRICT 3. SHANIL, AGED 46 YEARS S/O.LATE KUNJAN SHANKARAN, RESIDING AT PUTHENPUREYIL, KUROOR KARA, KOTHAMANGALAM VILLAGE, PIN - 686691 ERNAKULAM DISTRICT 4. SHAJIL, AGED 48 YEARS, S/O.LATE KUNJAN SHANKARAN, RESIDING AT PUTHENPUREYIL, KUROOR KARA, KOTHAMANGALAM VILLAGE, PIN - 686691 ERNAKULAM DISTRICT BY ADV.SRI.PEEYUS A.KOTTAM

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RESPONDENTS/RESPONDENTS 1-3/DEFENDANTS 1-3:

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*1. UNNIYATHI, AGED 80 YEARS, S/O.KUNJAN, (DIED) PUTHENPURAYIL, KUROOR KARA, KOTHAMANGALAM VILLAGE, NOW RESIDING AT AMBADI, VENDUVAZHI KARA, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 686691

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2. R.G.JAMES, AGED 62 YEARS, S/O.K.C.VARKEY, RESIDING AT KOOMULLIL (KUTTIKATTU) KUROOR KARA, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 686691

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RSA.No. 1133 of 2015

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3. PONNAMMA, AGED 59 YEARS, W/O.R.G.JAMES, RESIDING AT KOOMULLIL (KUTTIKATTU) KUROOR KARA, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN - 686691

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R3 BY ADVS. SRI.C.P.SAJI SRI.SHYSON P.MANGUZHA

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22-02-2018, ALONG WITH RSA 312/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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A. HARIPRASAD, J. ------------------------------R.S.A.No.1133 of 2015 & R.S.A.No.312 of 2016

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---------------------------------------------Dated this the 22^nd day of February, 2018

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JUDGMENT

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Heard the learned counsel for the appellants in both these cases.

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Two suits were tried before the Court of Munsiff, Muvattupuzha, namely, O.S.No.486 of 2004 and O.S.No.194 of 2005 jointly and disposed by a common judgment. Plaintiff in O.S.No.486 of 2004 is the appellant in R.S.A.No.1153 of 2015 and the plaintiff in O.S.No.194 of 2005 is the appellant in R.S.A.No.312 of 2016. The trial court, after considering the evidence adduced before it, dismissed both the suits. In the appeals preferred before the Subordinate Judge's Court, Muvattupuzha as A.S.Nos.59 and 62 of 2008 the learned Sub Judge reappraised the contentions and dismissed both the appeals. Hence, both the plaintiffs are before this Court.

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Learned counsel for the appellants in R.S.A.No.1133

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RSA Nos.1133 of 2015 & 2 312 of 2016

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of 2015 contended that the trial court as well as the lower appellate court failed to take note of the pleadings in the plaint in O.S.No.486 of 2004 to understand the legal right pleaded by the plaintiff. The dispute is in respect of a water channel, which, the plaintiff in O.S.No.486 of 2004 would contend that it is in existence from time memorial to drain out water flowing down from the southern side towards the thodu on the northern side. According to the learned counsel for the appellants in R.S.A.No.312 of 2016 (defendant in O.S.No.486 of 2004), no such water channel is in existence. Three sets of Commissioner's plans and sketches were submitted before the court below, which would show that there was a channel in existence.

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Learned counsel for the appellants in R.S.A.No.1133 of 2015, referring to paragraph 5 of the plaint in O.S.No.486 of 2004, contended that specific pleadings have been made to show that the plaintiff therein has acquired a right under Section 7 of the Easements Act to drain water naturally flowing through a definite water channel. According to him, lie of the property enables him to discharge water to the defendant's property and

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RSA Nos.1133 of 2015 & 3 312 of 2016

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it goes further north to join a thodu. Mistakenly in the prayer portion in O.S.No.486 of 2004, a declaration was sought for draining water by way of easement by prescription. It is further contended that merely for the mistake in the prayer portion, the vital aspects pleaded in the plaint should not have been ignored. It is seen from the judgment of the trial court that no issue had been cast in respect of a right claimed by the plaintiff in O.S.No.486 of 2004 under Section 7 of the Easements Act. This is one of the reasons for misdirecting the courts below themselves in deciding the legal rights pleaded.

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The court below dismissed O.S.No.194 of 2005 filed by the appellant in R.S.A.No.312 of 2016 finding that he had suppressed existence of the water channel in his plaint. It is therefore clear that the courts below have not understood the case of the parties correctly and without raising proper issues, the suits were decided which lead to an erroneous conclusion.

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Having regard to the facts and circumstances of the case, I am of the view that prejudices suffered by the parties could be redressed only by remanding the cases to the trial court.

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In the result, the impugned judgments and decrees passed

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RSA Nos.1133 of 2015 & 4 312 of 2016

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by the courts below in O.S.No.194 of 2005 and O.S.No.486 of 2004 are hereby set aside. The matters are remitted back to the court below for a fresh adjudication. Parties are permitted to rectify the mistakes in the pleadings and they shall be permitted to adduce evidence, if any, and the matter shall be disposed within a period of six months from the date of receipt of records.

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Parties to appear before the trial court on 16.03.2018. All pending interlocutory applications will stand dismissed.

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Sd/- A. HARIPRASAD JUDGE

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Sukumari v. Unniyathi

Case brief

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Sukumari v. Unniyathi

Case brief

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