Partly allowed

Moosa v. Sulaiman

Kerala HC5 Jul 2018RSA/1276/2005

Case brief

AI extract

What is this about?

In this second appeal, the High Court of Kerala challenged a first appellate decree granting a six-foot prescriptive easement of way. Relying on a survey plan showing a one-meter width, the Court set aside the first appellate decree and restored the trial court decree limiting the width accordingly.

What did the court decide?

First appellate decree and judgment set aside; trial court decree restored; easement width reduced to one meter as per survey plan.

Moosa Vs Sulaiman — Property and Title | 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 P.SOMARAJAN

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THURSDAY, THE 5TH DAY OF JULY 2018 / 14TH ASHADHA, 1940

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RSA.No. 1276 of 2005

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AGAINST THE JUDGMENT AND DECREE, DATED 12.8.2005, IN AS NO.108/2002 OF THE COURT OF THE ADDL.DISTRICT JUDGE (ADHOC) - I, KOTTAYAM

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AGAINST THE JUDGMENT AND DECREE, DATED 12.4.2002, IN OS NO.576/1997 OF THE MUNSIFF'S COURT, VAIKOM

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APPELLANT/APPELLANT/DEFENDANT:

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MOOSA, S/O.MUHAMMED, (DIED) FARISA MANZIL, FROM PUTHENPURAYIL HOUSE,, THALAYOLAPARAMBU KARA, VADAYAR VILLAGE. (LEGAL HEIRS IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 5)

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ADDITIONAL APPELLANTS:

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HAFSA MOOSA, AGED 56 YEARS, W/O.LATE MOOSA, FARISA MANZIL, PUTHENPURAYIL HOUSE, THALAYOLAPARAMBU KARA, VADAYAR VILLAGE, THALAYOLAPARAMBU - 6786 605.

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UVAISE P.M., AGED 35 YEARS, S/O.LATE MOOSA, FARISA MANZIL, PUTHENPURAYIL HOUSE, THALAYOLAPARAMBU KARA, VADAYAR VILLAGE, THALAYOLAPARAMBU - 686 605.

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FARISA P.M., AGED 33 YEARS, D/O.LATE MOOSA, W/O.SUDHEERSHA MOHAMMED, THALAKKATTU HOUSE, THRIKKAKKARA P.O., ERNAKULAM - 682 021.

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UNAISE, AGED 30 YEARS, S/O.LATE MOOSA, FARISA MANZIL, PUTHENPURAYIL HOUSE, THALAYOLAPARAMBU KARA, VADAYAR VILLAGE, THALAYOLAPARAMBU - 686 605.

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THE LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 5 AS PER ORDER DATED 9.6.2016 IN I.A. NO.2751 OF 2015.

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ADDL. APPELLANTS BY ADVS.SRI.T.B.HOOD

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SMT.M.ISHA SRI.AMAL KASHA

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RESPONDENT/RESPONDENT/PLAINTIFF:

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SULAIMAN, S/O.VALLAYIL KAYI, KURIYIL CHIRAYIL, VADAKKUMBHAGOM, VADAYAR VILLAGE.

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BY ADV. SRI.B.JAYASANKAR

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05.07.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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I.A.NO.232/2018 IN R.S.A.NO.1276/2005

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CLOSED

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9.6.2016 SD/- P. SOMARAJAN, JUDGE

//TRUE COPY//

ahz/

P.Somarajan, J.

R.S.A. No.1276 of 2005

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Dated this the 5^th day of July, 2018

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JUDGMENT

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Against the judgment and decree, dated 12.8.2005, in A.S.No.108 of 2002 of the Court of the Additional District & Sessions Judge (Ad-hoc) I, Kottayam and the decree in O.S.No.576 of 1997 of the Munsiff's Court, Vaikom, the defendant came up with this appeal.

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The suit was for declaration of right of prescriptive easement of way over item No.3 property having a width of six feet. It was originally decreed by the trial court granting a decree in part declaring right of easement by way of precription over 3.3 feet width of land. It was taken up by both the plaintiff and defendant before the first appellate court by way of appeal and cross objection. The lower court has granted a decree in respect of six feet width of land as claimed by the plaintiff in the plaint by declaring prescriptive right of easement of way over the property. Aggrieved by the said decree and judgment, the defendant came up with this second appeal.

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R.S.A. No.1276 of 2005

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:: 2 ::

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The bone of the contention raised by the defendant is

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that in the trial court after the issuance of an exparty commission, a survey commission was deputed, who in turn visited the property and prepared Ext.C1(a) plan showing the width of the way in dispute as one metre. The Commissioner further reported that there were no signs of any alteration or addition made in the property. No objection was preferred either by the plaintiff or by the defendant to the said report. Though the learned counsel appearing for the defendant tried to advance a case based on the earlier commission report, Ext.C2 series, wherein the width of the way is shown as five feet, but no objection was so far raised to Ext.C1(a) plan by the plaintiff. Further, the width measured out by the survey commission would prevail over the report earlier submitted by the commissioner without the assistance of a surveyor. As such, I am of the view that the first appellate court has committed an error regarding the appreciation of Ext.C1 report. The fact that no objection was raised to the said report has not

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R.S.A. No.1276 of 2005

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:: 3 ::

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been taken into consideration by the first appellate court and it has resulted in miscarriage of justice to the extent of width of way granted by the appellate court in excess of the decree granted by the trial court and hence the decree granted by the trial court has to be restored by setting aside the decree and judgment of the first appellate court. The width of the way as per Ext.C1(a) plan is only one metre equivalent to 3.3 feet and hence this appeal is liable to be allowed to that extent.

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It was submitted by the learned counsel for the defendant that the way in dispute will not reach up to the property of the plaintiff and hence no claim under Section 3 of the Easement Act be allowed. Inter alia it was contended that the property which is lying on the side of the way is a large extent of property owned by the father of the plaintiff and it was divided in between the children and according to the plaintiff, the way leads upto the large extent of property.

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It was submitted by both the counsel appearing for the

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R.S.A. No.1276 of 2005

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:: 4 ::

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plaintiff and the defendant that earlier there was an attempt to settle the matter since the way bifurcates the property of defendants into two parts. The said right of parties is left open for consideration and if the parties agree the way can be shifted to on a convenient place one of the side of the property owned by the defendant, but it should be done with mutual consent of parties.

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In the result, the second appeal is allowed in part. The decree and judgment of the first appellate court is set aside. The decree and judgment of the trial court is restored. No order as to costs.

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sd/P. Somarajan Judge

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ahz/

Moosa v. Sulaiman

Case brief

What is this about?

What did the court decide?

Moosa v. Sulaiman

Case brief

What is this about?

What did the court decide?

What the court decided

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