Partly allowed

Devassikutty v. Paily (Died)

Kerala HC17 Jul 2019RSA/73/2006

Case brief

AI extract

What is this about?

The High Court allowed the appeal partly, setting aside the decree of the First Appellate Court. The court held that the lower courts erred in ignoring admissions regarding an alternative way and failing to appreciate the last severence and subsequent alienations. The matter was remanded to the Trial Court for amendment of pleadings and a fresh disposal.

What did the court decide?

Appeal allowed in part; decree and judgment of First Appellate Court set aside; matter remanded to Trial Court for amendment of pleadings and fresh disposal.

Devassikutty Vs Paily (Died) — Landlord and Tenant | 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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WEDNESDAY, THE 17TH DAY OF JULY 2019 / 26TH ASHADHA, 1941

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RSA.No.73 of 2006

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AGAINST THE JUDGMENT AND DECREE DATED 06-10-2005 IN AS 144/1999 of PRINCIPAL SUB COURT, NORTH PARAVUR

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AGAINST THE JUDGMENT AND DECREE DATED 31-03-1997 IN OS 106/1990 of MUNSIFF COURT,ALUVA

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APPELLANT:DEFT. IN TRIAL COURT AND RESPDT.IN LAC.

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DEVASSIKUTTY, S/O PATHROSE, PALATTY KARUKUTTIKKARA, KARUKUTTY VILLAGE,, ALUVA TALUK.

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BY ADVS.

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SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN

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RESPONDENT/PLFF.IN TRIAL COURT-APPELLANT IN LAC:

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1 PAILY, S/O PATHROSE, PALATTY, KARUKUTTIKARA, KARUKUTTI VILLAGE, ALUVA TALUK. (DIED)

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(ADDL. R2 TO R6 IMPLEADED)

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ADDITIONAL RESPONDENTS

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2 PAILY JOSEPH, S/O. PAILY, PALATTY HOUSE, KARUKUTTY, POST - 683576.

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3 JAISON PAILY, S/O. PAILY, DO- DO-.

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4 PAILY RAJU, S/O. PAILY, DO- DO- DO.

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5 VALSA, D/O. PAILY, DO. DO. DO.

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6 LAISSA D/O. PAILY, DO. DO. DO.

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(LHRS. OF DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDL. R2 TO R6 AS PER THE ORDER DTD. 13/01/2011 IN I.A. NO. 60/2011)

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R3 & R4 BY ADVS.

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SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM

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SRI.M.NARENDRA KUMAR

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No.73 of 2006 2

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JUDGMENT

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The defendant came up with this appeal aggrieved

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by the decree and judgment of the First Appellate Court granting 2¹ /2 width way through the western extremity of defendant's property.

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The question came up for consideration is whether the plaintiff can go behind their pleadings and admissions raised pertaining to the matter in dispute and whether the First Appellate Court is justified in decreeing the suit in part, overlooking the pleadings in the plaint?

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There are 4 schedules to the property A to D

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schedules. A schedule is registered holding of the plaintiff. D schedule is registered holding of defendants and C schedule is a Thodu (water channel).

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B schedule according to the plaintiff is the way available to plaint A schedule property, being under use for several years. The cause of action for the

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suit was stated as the obstruction created by the

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defendants at the entrance of B schedule by constructing a fencing. In the plaint, there is clear

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RSA.No.73 of 2006 3

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admission regarding the existence of B schedule way available to A schedule property. The B schedule is scheduled in the plaint as the way in existence. When there is an admission made by the plaintiff regarding existence of a way to the property though it was obstructed by the defendant, the remedy is to sue for declaration of right of way acquired over the said property and for removal of the obstruction. A suit for declaration of easement of necessity would not stand when there is an alternative way admitted by the plaintiff in his plaint as means of access to his property.

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The plaint was amended several times and on

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one occasion, the claim of easement by necessity was deleted, but no substantial prayer was incorporated

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claiming any specific right of easement. The commissioner who visited the property could not trace out any way in existence which was accepted by the First Appellate Court and found that the claim of easement by necessity would stand in the absence of an alternative way and as such 2¹ /2 feet width of land was granted through the side of property of the plaintiff by way of easement by necessity. But it is

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RSA.No.73 of 2006 4

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really against the pleading raised in the plaint. Then comes the question once it was found that there is no alternative way available to the plaintiff, the relief of easement by necessity can be rejected simply on the reason that the plaintiff claimed another alternative way which is actually not in existence. The First Appellate Court found that there is no alternative way available to the plaintiff. The oral evidence tendered by PWs 2 and 4 brought to the notice of this court so as to show the admission made regarding existence of alternative way. What is spoken by PWs 2 and 4 that the plaintiff can pass over a paddy field inorder to reach the public road from their property. This cannot be treated as a way available as it is the usual practice to cross over the paddy field either through the ridge or otherwise and the said user cannot be said as user as of right. So it cannot be brought under the purview of an alternative way available. The plaint pleading is totally mischievous and drafted very poorly without knowing what actually amounts to easement and easement by necessity. Added by the fact that on one occasion, the claim of easement of necessity was deleted, then

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RSA.No.73 of 2006 5

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subsequently it was incorporated. The plaint was subjected to amendments one after another without understanding the real dispute involved in the suit. The incompetency and the ignorance on the part of counsel who prepared the plaint shall not be put on the shoulder of the party so as to reject a valuable claim otherwise found existed. The plaint requires amendment to that extent. It is not at all proper to curtail a valuable right to have a way to the registered holding of the plaintiff.

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Regarding severence of tenements, the plaint pleading suffers yet another draw back as it was not specified the last divisions and severence and acquisition of right based on last severence. There are purchase and alienation of portions of property covered by earlier partition deed. So the severence of property based on the earlier partition deed alone is not decisive. The plaintiff has to establish the last severence and its legal consequences inorder to claim easement by necessity. The First Appellate Court failed to appreciate the last severence especially in view of several transfer and alienation subsequent to the partition and hence the decree of

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RSA.No.73 of 2006 6

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First Appellate Court cannot be sustained. The appeal

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is liable to be allowed in part by setting aside the decree and judgment of the First Appellate Court. I do so. The decree and judgment of the Trial Court also set aside for the purpose of remanding the matter back to the Trial Court. The parties shall appear before the Trial Court on 8.8.2019. The Trial Court shall permit the plaintiff to amend their pleading and dispose of the suit afresh in accordance with law. The defendant may be allowed to submit additional written statement based on the amended pleading and the parties may be allowed to adduce additional evidence.

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The appeal is allowed in part. No costs.

Sd/-

P.SOMARAJAN

JUDGE

msp

//TRUE COPY//

P.A. TO JUDGE

Devassikutty v. Paily (Died)

Case brief

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Devassikutty v. Paily (Died)

Case brief

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