Allowed

Dharmapuriyil Thamasikkum Vinodan v. Pulichingoth Thamasikkum Suresh Kumar

Kerala HC5 Mar 2019RSA/1029/2004

Case brief

AI extract

What is this about?

In a second appeal, the Kerala High Court set aside the lower courts' decree granting an easement of prescriptive right due to lack of 'user as of right' evidence regarding a way that bifurcated the respondent's property and incomplete description of the way. Consequently, the injunction suit was decreed and the easement suit dismissed.

What did the court decide?

Both appeals allowed; decree of lower courts set aside; injunction suit decreed; easement suit dismissed.

Dharmapuriyil Thamasikkum Vinodan Vs Pulichingoth… — Property and Title | Kerala HC (2019)

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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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TUESDAY ,THE 05TH DAY OF MARCH 2019 / 14TH PHALGUNA, 1940

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RSA.No. 1029 of 2004

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AGAINST THE ORDER/JUDGMENT IN AS 5/2003 of SUB COURT, VADAKARA DATED 13-08-2004

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AGAINST THE ORDER/JUDGMENT IN OS 26/2002 of MUNSIFF COURT, NADAPURAM DATED 03-12-2002

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APPELLANT/APPELLANTS/DEFENDANTS:

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1 DHARMAPURIYIL THAMASIKKUM THACHINANDIYIL VINODAN, S/O. KELAPPAN, VILATHAPURAM AMSOM, KUNINGAD DESOM, VADAKARA TALUK.

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2 DHAMAPURAYIL THAMASIKKUM THACHINNANDIYIL CHANDRAN, DO. DO.

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BY ADVS. SRI.P.T.MOHANKUMAR

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RESPONDENT/RESPONDENT/PLAINTIFF:

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PULICHINGOTH THAMASIKKUM AROTH MADATHIL SURESH KUMAR, PURAMERI AMSOM AND DESOM,, VADAKARA TALUK.

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BY ADV.

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SMT.LISSY DEVASSY

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2019, ALONG WITH RSA.1043/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA NOS.1029 & 1043 OF 2004 2

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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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TUESDAY ,THE 05TH DAY OF MARCH 2019 / 14TH PHALGUNA, 1940

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RSA.No. 1043 of 2004(G)

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AGAINST THE JUDGMENT AND DECREE DATED 13.8.2004 IN AS 6/2003 of SUB COURT, VADAKARA

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AGAINST THE JUDGMENT AND DECREE DATED 03-12-2002 IN OS 101/2002 OF MUNSIFF COURT, NADAPURAM

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APPELLANTS/APPELLANTS/DEFENDANTS:

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1 DHARMAPURIYIL THAMASIKKUM THACHINANDIYIL VINODAN, S/O. KELAPPAN, VILATHAPURAM AMSOM,, KUNINGAD DESOM, VADAKARA TALUK.

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2 DHARMAPURAYIL THAMASIKKUM THACHINANDIYIL CHANRAN, DO. DO.

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BY ADV. SRI.P.T.MOHANKUMAR

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RESPONDENT/RESPONDENT/PLAINTIFF:

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PULICHINGOTH THAMASIKKUM AROTH MADATHIL SURESHKUMAR, PURAMERI AMSOM AND DESOM, VADAKARA TALUK.

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BY ADV. SMT.LISSY DEVASSY

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05.03.2019, ALONG WITH RSA.1029/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA NOS.1029 & 1043 OF 2004 3

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JUDGMENT

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Aggrieved by the concurrent finding rendered by both the trial court and the first appellate court in two suits, in O.S.No.26 of 2002 and O.S.No.101 of 2002, the original plaintiff in the leading case in O.S.No.26 of 2002, who is the defendant in the connected suit in O.S.No.101 of 2002, came up with this appeal.

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The leading case was for injunction simplicitor. It was dismissed by both the trial court and the first appellate court. The connected suit was decreed by both the trial court and the first appellate court. Aggrieved by the said decree and judgment, the two appeals were preferred.

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The parties herein below referred in their

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status in the leading case in O.S.No.26 of 2002.

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The connected suit was filed by the

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RSA NOS.1029 & 1043 OF 2004 4

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defendants for a declaration of easement of prescriptive right over plaint C schedule property. It forms part of the registered holding of the defendants. The suit in O.S.No.101 of 2002 filed for declaration of prescriptive right of easement over C schedule property which form part of the registered holding of plaintiff in the connected suit. Both the trial court and the first appellate court granted a decree for declaring of easement of right over C schedule property and consequently, the leading case in O.S.No.26 of 2002 filed for permanent prohibitory injunction with respect to the registered holding of plaintiff was dismissed. Aggrieved by the said concurrent finding and the decree and judgment of the trial court and the first appellate court, the plaintiff in the leading case came up with these two appeals.

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The questions came up for consideration

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are:

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RSA NOS.1029 & 1043 OF 2004 5

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i) Whether the trial court and the first appellate court justified in granting a decree of declaration of easement of prescription without satisfying the user of a way 'as of right' ?

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ii) Whether a mere passing over the property of the defendants would constitute user “as of right” when it was found to be bifurcate the servient heritage into two parts ?

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iii) What actually amounts to user 'as of right' and whether the trial court and the first appellate court went wrong in appreciating what actually amounts to 'as of right' as enumerated under Section 15 of the Indian Easement Act ?

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iv) Whether it is permissible to grant a

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decree, without ascertaining the identity of the way claimed ?

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Going by C schedule description in the

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connected suit the identity of the way claimed by

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RSA NOS.1029 & 1043 OF 2004 6

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the plaintiff therein, cannot be ascertained. It does not say anything about the starting point of the way from the public road leading from Purameri to Kuningad. It is simply says that it starts from Purameri-Kuningad public road and leading to A schedule in the connected suit, lying east west direction with a width of 2 ½ meter north south and

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a length of 22 meter in old survey No.60/10, resurvey No.116/5. It does not say anything about the starting point. It can be through B schedule either through its northern extremity or through its southern extremity or through any place in between the northern and southern extremity of B schedule. C schedule description is incomplete, not capable of giving the exact location and alignment of way claimed as C schedule without which no decree can be granted.

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The boundaries of C schedule way stated in

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the description itself shows that it is passing

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RSA NOS.1029 & 1043 OF 2004 7

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through B schedule property in between the southern and the northern extremity of B schedule. That is

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well evident from the fact that the southern boundary is stated as portion of B schedule and northern boundary is also stated as portion of B

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schedule. The C schedule way as per the plaint description in the connected suit in O.S.No.101 of 2002 starts from Purameri-Kuningad road and passing through the B schedule bifurcating the same into two uneven pieces. One portion is on the southern side and other portion is on the northern side. The commissioner, who visited the property could not see any such way in existence, presumably, on the

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reason that it was by that time destroyed and obliterated. But as per the C schedule description in the connected suit, the way bifurcates the B schedule property belonged to the defendants in the connected suit into two portions, one is on the southern side and other is on the northern side.

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RSA NOS.1029 & 1043 OF 2004 8

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If that be so, the user cannot be termed as an user “as of right”. The expression “as of right” stands for using a particular portion of the property with the animus as against the original owner and it should capable of giving notice regarding not only the user, but also the “animus” exercised over the property. A mere crossing over an unfenced land cannot be brought under the purview of user as of right, especially the way bifurcates the property of defendants into two halves. The property of defendants comes to as per the prescription given in the connected suit 8.44 ares equivalent to 20 cents and 855 Sqr links. A document was also relied on by the defendants in the connected suit to reject the claim of user “as of right” by producing a certified copy of plan obtained by the plaintiff

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in the connected case for their building

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construction wherein the way in dispute the C

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schedule way is not even mentioned or located. On

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RSA NOS.1029 & 1043 OF 2004 9

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the other hand, yet another way starting from the same road shown as their means of access. This plan was submitted before the local authority for getting building permission and even according to the plaintiff the building was constructed just one year before the institution of the suit. DW1, the plaintiff in the connected suit had admitted that the way shown in the plan is not the one scheduled in the plaint as C schedule, but advanced a case that the said way was shown in the plan without her permission. If she was using the plaint C schedule way “as of right” it might have find place in the building plan submitted by her to the local authority just one or two years before the institution of the suit.

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As discussed earlier, the expression what actually amounts to 'as of right' is not properly understood either by the trial court or by the first appellate court. Of course, there can be an

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RSA NOS.1029 & 1043 OF 2004 10

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user as of right across a particular property, but when its bifurcates into two halfs, there should be satisfactory and clinching evidence to show “user as of right”. Needless to say that there is no clear finding by either the trial court or the first appellate court with respect to the nature of right enjoyed by the plaintiff in the connected suit in reference to the ingredients 'user as of right'. Both the trial court and the first

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appellate court went wrong in applying the legal position as to what actually amounts to the expression “as of right” and hence both the decree and judgment of the trial court and the first appellate court are liable to be interfered, I do so by setting aside the same by allowing both these two appeals, but without costs. Needless to say that the suit filed by the defendants in the connected suit, that is the leading case ought to have been granted and decreed by both the trial

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RSA NOS.1029 & 1043 OF 2004 11

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court and the first appellate court in the absence of failure to show any imposition of easement right over any of the portion of the property owned by the defendants in the connected suit.

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Both the appeals are allowed. Decree and judgment of both the trial court and the first appellate court are set aside. The leading case in O.S.No.26 of 2002 is hereby decreed granting permanent prohibitory injunction as prayed for and in terms of the plaint. The connected suit in O.S.No.101 of 2002 is hereby dismissed. Both the parties are directed to suffer their respective costs of suit, first appeal and second appeal.

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Sd/P.SOMARAJAN, JUDGE

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//TRUE COPY // PA TO JUDGE

Dharmapuriyil Thamasikkum Vinodan v. Pulichingoth Thamasikkum Suresh Kumar

Case brief

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Dharmapuriyil Thamasikkum Vinodan v. Pulichingoth Thamasikkum Suresh Kumar

Case brief

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