Allowed

Zamoothiri Guruvayurappan v. v.Krishnan

Kerala HC27 Nov 2019RSA/686/2012

Case brief

AI extract

What is this about?

In an appeal against a decree granting injunctive relief for a pathway, the Court held that while a servitude exists, the lower appellate court erred in decreeing a 10 feet wide way. Restrained the college from obstructing a 3 feet wide pedestrian pathway.

What did the court decide?

Permanent prohibitory injunction restraining obstruction of a 3 feet wide pathway along the southern boundary for pedestrian access.

Zamoothiri Guruvayurappan Vs v.Krishnan — 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 SATHISH NINAN

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WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941

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RSA.No.686 OF 2012

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AGAINST THE JUDGMENT AND DECREE IN AS 49/2007 DATED 16-11-2011 OF III ADDITIONAL SUB COURT, KOZHIKODE

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AGAINST THE JUDGMENT AND DECREE IN OS 51/2001 DATED 21-12-2006 OF PRINCIPAL MUNSIFF COURT ,KOZHIKODE -II

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APPELLANTS/DEFENDANTS IN THE TRIAL COURT AND RESPONDENTS IN THE LOWER APPELLATE COURT:

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1 ZAMOOTHIRI GURUVAYURAPPAN COLLEGE, REPRESENTED BY THE EDUCATIONAL AGENCY, KOZHIKODE ZAMOOTHIRI RAJA.

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2 THE MANAGER ZAMOOTHIRI GURUVAYURAPPAN COLLEGE GOVERNING BODY OFFICE, THALI CHALAPPRAM P.O., KOZHIKODE.

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BY ADVS.

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SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN

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RESPONDENT/PLAINTIFF IN THE SUIT AND APPELLANT IN THE LOWER APPELLATE COURT:

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V.KRISHNAN

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S/O.LATE DAMODARAN.V., ELLEZHUTHIL MEETHAL, GURUVAYURAPPAN COLLEGE P.O., OLAVANNA AMSOM DESOM, KOZHIKODE 673 014.

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BY ADV. SRI.K.SANEESH KUMAR ADV. SMT.V.B.SANTHINI

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21.11.2019, THE COURT ON 27.11.2019 DELIVERED THE FOLLOWING:

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RSA.No.686 OF 2012

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Sathish Ninan, J.

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=======================

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R.S.A No.686 of 2012

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==========================

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Dated this the 27^th day of November, 2019

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JUDGMENT

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The defendants in a suit for prohibitory and

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mandatory injunction, are the appellants. The suit was dismissed by the trial court. On appeal the lower appellate court partly decreed the suit.

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The dispute involved relates to a pathway.

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The defendants in the suit is a college and its manager. The plaint A schedule property has an extent of 10 cents. A larger extent of property including the plaint A schedule belonged to the Zamorin Raja, which was later taken of by the board

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of management of the first defendant college. According to the plaintiff, one Rarukutty was the kudikidappukaran of the plaint A schedule property. He obtained patta No.3351 of 1977 in the proceedings in O.A No.1089 of 1976 of the Beypur Land Tribunal.

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RSA.No.686 OF 2012

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As per Ext A1 assignment deed, he conveyed the property to the plaintiff. Plaint B schedule is claimed to be a 10 feet wide way starting from the said public road on the south western side and leading to the plaint A schedule. The plaint B schedule is claimed to be the only access to the plaint A schedule. The plaint B schedule way claimed is, through the property of the first defendant. The plaintiff claims that he has obtained prescriptive easement right of way over the plaint B schedule. He seeks for prohibitory injunction not to obstruct the way and also for mandatory injunction for removal of the obstructions caused to the way.

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The defendants denied the claim of

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kudikidappu right of Rarukutty. They denied the grant of any jenmom right to Rarukutty and also the validity of Ext A1 assignment deed. They denied the right of access of the plaintiff through the property of the college.

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The trial court found against the plea of

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prescriptive easement and accordingly dismissed the

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RSA.No.686 OF 2012

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suit. The trial court also noticed the existence of an alternate pathway through the southern side of the plaint A schedule property. Lower appellate court on reappreciation of the evidence found that the plaintiff has proved prescriptive easement right of way over the plaint B schedule and granted a decree for prohibitory injunction not to obstruct the same. Aggrieved, the defendants are in appeal.

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Heard Sri.M.P.Sreekrishnan, learned counsel for the appellants – defendants and Sri.K.Saneesh Kumar learned counsel for the respondent – plaintiff on the following substantial question of law:-

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(a) Did not the lower appellate court misread the commissioner's report to find non-availability of access to the plaint A schedule except through plaint B schedule?

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(b) Is not the decree granted for a 10 feet wide way unsupported by any evidence?

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That the plaint A schedule property can be

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accessed through the plaint B schedule is not seriously in dispute. However, there is no evidence

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RSA.No.686 OF 2012

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regarding the user of a 10 feet wide way as claimed by the plaintiff. Ext A4 is the copy of the counter statement filed by the defendants in O.A No.1089 of 1976. The existence of a hut in the plaint A schedule is admitted therein. Though the defendants deny the grant of kudikidappu in favour of the assignor of the plaintiff, even according to them, the predecessor of the plaintiff is a trespasser who resided in the plaint A schedule property. The title over the A schedule property is not the issue arising for determination of the present suit. The question is whether the plaintiff and his predecessor has prescribed a right of way through the defendants' property. The plaintiff and his predecessor being occupants of portion of the defendants' property it is only probable that they would have been having access to the public way through the remaining property of the defendants.

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The defendants would contend that the

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plaintiff has access to the public way through a 'chola' which lies on the southern side of the A

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RSA.No.686 OF 2012

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schedule property. As is evident from the cross examination of DW1, access through the southern 'chola' is the alternate access suggested by the defendants. A reading of the commissioner's report makes it clear that the said 'chola' does not reach upto the public road on the west. Suffice to notice that the existence of any way apart from the plaint B schedule, for access from the A schedule property to public way has not been brought out. The trial court has misread the commissioner's report to find that the access from the plaint A schedule to the public way is through the southern 'chola'. As noticed supra, when the plaintiff and his predecessor are in occupation of a portion of the defendants' property

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and there is no other access for them, it is only probable that they would be having access through the remaining property of the defendants. Therefore, the finding of the lower appellate court regarding the right of user by the plaintiff is probable. Substantial question of law no.(a) is thus answered against the appellants.

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RSA.No.686 OF 2012

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However, the lower appellate court has

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granted a decree for the entire width of the B schedule as claimed in the plaint namely, a 10 feet wide pathway. There is absolutely no evidence to find that the plaintiff and his predecessors were using a 10 feet wide way for a continuous period of 20 years. There is no evidence to find the user of a 10 feet wide pathway by the plaintiff. In the circumstances, the lower appellate court erred in granting a decree for a 10 feet wide way as included in schedule B to the plaintiff. The plaintiff could only be granted right for a 3 feet wide pathway. The decree and judgment of the lower appellate court are liable to be interfered with to the above extent. Substantial question of law (b) is thus answered in favour of the appellants.

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Coming to the extent of the right of way that could be enjoyed, though the plaintiff claims that he had been having access to the plaint 'A' schedule property in two wheelers, there is no evidence to find that he has prescribed that right. In terms of

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RSA.No.686 OF 2012

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Section 28(a) of the Indian Easements Act, 1882, the extent of the easement of way shall be confined to the kind of right of way as acquired and does not include any other kind of right of way. On the materials it is found that the plaintiff has prescribed a right of way for pedestrian access only. The said right is not liable to be enlarged without having prescribed for the same.

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In the result, this appeal is allowed in part. The defendants are restrained by a decree of permanent prohibitory injunction from obstructing the user of a 3 feet wide pathway along the southern boundary of the defendant's property, for pedestrian access to the plaint A schedule property. No costs.

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Sd/- Sathish Ninan, Judge

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vdv

Zamoothiri Guruvayurappan v. v.Krishnan

Case brief

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Zamoothiri Guruvayurappan v. v.Krishnan

Case brief

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