Allowed

Rajan Ittycheria v. Sebastian

Kerala HC8 Mar 2019RSA/1094/2004

Case brief

AI extract

What is this about?

The High Court allowed the appeals in part. Addressing disputes regarding boundaries, walls, and rights of way, the court set aside lower court decrees, permitting the appellant to construct a wall and mandating the preservation of an access gate and ramp.

What did the court decide?

The appeals allowed in part. Set aside lower decree. Appellant permitted to construct boundary wall within six months and issue survey commission. Obstruction of access gate/ramp prohibited.

Rajan Ittycheria Vs Sebastian — Partition | 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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FRIDAY, THE 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940

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RSA.No. 1094 of 2004 (E)

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AGAINST THE DECREE AND JUDGMENT DATED 17.02.2004 IN AS No. 225/1998 of ADDITIONAL DISTRICT COURT (SPECIAL COURT), KOTTAYAM

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AGAINST THE DECREE AND JUDGMENT DATED 05.07.1997 IN OS No.859/1993 of PRINCIPAL MUNSIFF COURT, KOTTAYAM

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APPELLANT/APPELLANT/PLAINTIFF:

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RAJAN ITTYCHERIA, ADVOCATE, RESIDING AT ACHAMMA JODGE, HOUSE NO.344/IX OF KOTTAYAM MUNICIPALITY, CHELLIOZHUKKOM ROAD, PANAYAKAZHIPPU KARA, MUTTAMBALAM VILLAGE, KOTTAYAM.

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BY ADVS.SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.P.GOPAL

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 SEBASTIAN, S/o DEVASIA, RESIDING AT PAIKADA HOUSE, CHELLOZHUKKOM ROAD, PANAYAKAZHIPPU KARA, MUTTAMBALAM VILLAGE, KOTTAYAM - 1.

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2 REETA @ GRACY, W/o SEBASTIAN RESIDING AT DO. DO.

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BY ADV. SMT.KOCHUMOL KODUVATH

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.03.2019, ALONG WITH RSA.1114/2004, RSA.1124/2004. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.S.A.Nos.1094, 1114 & 1124/2004

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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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FRIDAY, THE 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940

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RSA.No. 1114 of 2004 (G)

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AGAINST THE DECREE AND JUDGMENT DATED 17.02.2004 IN AS No.245/1998 of ADDITIONAL DISTRICT COURT (SPECIAL COURT), KOTTAYAM

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AGAINST THE DECREE AND JUDGMENT DATED 05.07.1997 IN OS No.859/1993 of PRINCIPAL MUNSIFF COURT, KOTTAYAM

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APPELLANT/RESPONDENT/PLAINTIFF:

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RAJAN ITTYCHERIA, ADVOCATE, RESIDING AT ACHAMMA LODGE, HOUSE NO.344/IX OF KOTTAYAM MUNICIPALITY, CHELLIOZHUKKOM ROAD, PANAYAKAZHIPPU KARA, MUTTAMBALAM VILLAGE, KOTTAYAM.

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BY ADVS.SRI.P.G.PARAMESWARA PANICKER (SR.)

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SRI.P.GOPAL

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RESPONDENTS/APPELLANT/DEFENDANTS:

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1 SEBASTIAN PAIKADA, S/o DEVASIA, RESIDING AT PAIKADA HOUSE, CHELLOZHUKKOM ROAD, PANAYAKAZHIPPUKARA, MUTTAMBALAM VILLAGE,

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KOTTAYAM-1.

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2 GRACY @ REETHA, W/o SEBASTIAN, RESIDING AT -DO- -DO-.

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BY ADV. SRI. SURESH KUMAR KODOTH

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.03.2019, ALONG WITH RSA.1124/2004, RSA.1094/2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.S.A.Nos.1094, 1114 & 1124/2004

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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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FRIDAY, THE 08TH DAY OF MARCH 2019 / 17TH PHALGUNA, 1940

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RSA.No. 1124 of 2004 (A)

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AGAINST THE DECREE AND JUDGMENT DATED 17.02.2004 IN AS No. 280/1998 of ADDITIONAL DISTRICT COURT (SPECIAL COURT), KOTTAYAM

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AGAINST THE DECREE AND JUDGMENT DATED 05.07.1997 IN OS No.609/1995 of PRINCIPAL MUNSIFF COURT, KOTTAYAM

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APPELLANT/1st RESPONDENT/1 st DEFENDANT:

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RAJAN ITTYCHERIA, ADVOCATE, RESIDING AT ACHAMMA LODGE, HOUSE NO.344/IX OF KOTTAYAM MUNICIPALITY, CHELLIOZHUKKOM ROAD, PANAYAKAZHIPPU KARA, MUTTAMBALAM VILLAGE, KOTTAYAM.

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BY ADVS.SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.P.GOPAL

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RESPONDENTS/APPELLANTS & RESPONDENTS 2 AND 3/PLAINTIFFS & DEFENDANTS 2 AND 3:

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1 REETA @ GRACY, W/o SEBASTIAN PAIKADA, PAIKADA HOUSE, CHELLOZHUKKOM ROAD, PANAYAKAZHIPPU KARA, MUTTAMBALAM VILLAGE, KOTTAYAM-1.

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2 SEBASTIAN, S/o DEVASIA, RESIDING AT -DO- -DO-.

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3 MANOJ, S/o RAJAN ITTYCHERIA, ADVOCATE, RESIDING AT ACHAMMA LODGE, HOUSE NO.344/IX OF KOTTAYAM MUNICIPALITY, CHELLIOZHUKKOM ROAD, PANAYAKAZHIPPU KARA, MUTTAMBALAM VILLAGE, KOTTAYAM

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4 SANTHOSH, S/o RAJAN ITTYCHERIA, -DO- -DO-.

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R1 & R2 BY ADV. SMT.KOCHUMOL KODUVATH R3 & R4 BY ADVS. SRI.P.K.JOSE SRI.A.G.TISSARANT

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.03.2019, ALONG WITH RSA.1114/2004, RSA.1094/2004. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.S.A.Nos.1094, 1114 & 1124/2004

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JUDGMENT

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These three appeals were preferred against the common

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decree and judgment in A.S.Nos.225/1998, 245/1998 and 280/1998 of the Additional District Court, Kottayam and the decree and judgment in O.S.Nos.859/1993 and 609/1995 of the Principal Munsiff's Court, Kottayam. The suit in

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O.S.No.859/1993 is the leading case. The parties herein below are referred in their status in the leading case.

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The leading case in O.S.No.859/1993 was originally filed for a permanent prohibitory injunction. Later on it was amended by incorporating a prayer for declaration. There are three items of properties scheduled in the plaint. Item No.1 is the registered holding of plaintiff having an extent of 39 cents and the building therein wherein the plaintiff is residing. Item No.2 is a private road set up originally by the predecessor-in-interest of the plaintiff, one Achamma and her husband Varkey. Ext.B1 document was executed by the predecessor-in-interest of plaintiff in favour of the second defendant. The defendants 1 and 2 later on purchased some other property under Ext.B2

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document. Item No.2 in the plaint is the way given to the second defendant under Ext.B1 document as means of access to their registered holding. Admittedly, this property was

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R.S.A.Nos.1094, 1114 & 1124/2004

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given by the predecessor-in-interest of the plaintiff and only a right of way alone was given over a property having a width of 10 feet. This way starts from Chelliozhukkom Road lying on the northern side and proceeds towards south till the property of plaintiff scheduled in the plaint as Item No.1, then takes a deviation through the property of plaintiff towards southwest and reach up to the property covered by Ext.B1. This way is having a width of 10 feet, the item No.2 in the plaint schedule. A wooden gate was installed by the predecessor-in-interest of plaintiff as means of access to item No.1 property.

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The amended relief sought in the plaint for a declaration that the eastern wall lying on the eastern side of item No.2 way is belonged to the plaintiff, cannot be allowed on two grounds. Firstly, under Ext.B1 document, the beneficiary under Ext.B1 document was permitted to construct a wall on the eastern extremity of item No.2 property. At the time of institution of the suit, there was a wall on the eastern side of item No.2 way. If that be so, the only presumption that can be arrived at when

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there is a construction of compound wall on the eastern

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side of item No.2 is that it was constructed by the

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beneficiary under Ext. B1 document. Ext.B1 document

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R.S.A.Nos.1094, 1114 & 1124/2004

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executed by the predecessor-in-interest of the plaintiff,

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authorizing the beneficiary under that document to construct a wall on the eastern side of item No.2, would be relevant, especially when no other satisfactory evidence was adduced by the plaintiff to show that the wall was constructed by them. The learned Senior Counsel for the appellant submitted that the place wherein the wall was constructed is belonged to the predecessor-in-interest of

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the present plaintiff and as such even if it is found to be constructed by the beneficiary under Ext.B1, since the landed property is belonged to the plaintiff, the ownership over the construction would also go to the plaintiff. It is too difficult to agree with the contention raised by the learned Senior Counsel. Normally what is attached and embedded with the earth would go along with the land. The construction of a structure with permission would stand on a different footing and the person who had constructed it will have the right, title and interest over the construction made over the property and he can very well claim for the cost of construction or the improvement based on the construction made in the property.

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Now it is fairly submitted by the learned Senior

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Counsel for the appellant that the compound wall partially

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R.S.A.Nos.1094, 1114 & 1124/2004

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demolished and the remaining part fell down due to old age and now the wall is not in existence and as such the prayer for declaration became infructuous and it is not necessary to go into that aspect. It is submitted by the learned Senior Counsel for the plaintiff/appellant that since he is the owner of the landed property, nobody else can be permitted to construct any compound wall over any portion of the property owned by the plaintiffs, viz. the property wherein item No.2 way is situated. But their own document says otherwise. Ext.B1, which is a sale deed executed by the predecessor-in-interest of the plaintiff in favour of the second defendant, would show that the second defendant was permitted to construct a wall on the eastern side of the way. So the permission granted under that document cannot be taken away unilaterally by the plaintiff. Even if any construction is made, it should not be in such a manner destructing or reducing the user of way and the title of plaintiff over the same.

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The learned counsel for the appellant further

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submitted that the plaintiff is ready for constructing a compound wall on the eastern side of the said way, if the beneficiary under Ext.B1 document, the second defendant, is not prepared to construct the same within a time schedule

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R.S.A.Nos.1094, 1114 & 1124/2004

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fixed by this Court. The property covered by Ext.B2 is

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lying on the side of the Chelliozhukkom road. It is also necessary to provide an iron gate as required by the plaintiff with a ramp as access to his registered holding which is lying on a lower level from that of the way, and it shall not be curtailed or obstructed by any person who is claiming a right of way over item No.2 property either under Ext.B1 document or any other document. This has not been properly considered by either the Trial Court or the First Appellate Court. Both the Trial Court and the First

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Appellate Court ought to have granted a permanent prohibitory injunction not to obstruct the construction of

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iron gate or a ramp so as to have an easy access to item No.2 property from the registered holding of plaint item

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No.1 and hence the decree and judgment of the First Appellate Court and the Trial Court are liable to be set aside.

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It is submitted by the learned counsel for the

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appellant that the wooden gate was already replaced by an iron gate and a ramp was constructed from item No.2 property to the registered holding of plaintiff as per the interim direction given by the Trial Court and as such the same can be preserved by granting a permanent prohibitory

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R.S.A.Nos.1094, 1114 & 1124/2004

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injunction from causing any kind of obstruction or damage

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to the gate or the ramp constructed there. The plaintiff may be permitted to construct a retaining boundary wall on the eastern side of plaint item No.2 property, on failure to construct a compound wall through the said premise by the defendants by virtue of the authority given under Ext.B1 document within a period of six months from today. The Trial Court shall issue a survey commission so as to locate the boundary of item No.2 property on its eastern side so as to enable the construction of compound wall. The parties shall appear before the Trial Court on 29.03.2019. The plaintiff may be permitted to amend the plaint for the purpose of fixation of eastern boundary of item No.2 way.

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All the appeals are allowed in part accordingly. No order as to cost of appeal.

Sd/-

P.SOMARAJAN

DMR/-

JUDGE

Rajan Ittycheria v. Sebastian

Case brief

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Rajan Ittycheria v. Sebastian

Case brief

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