Partly allowed

Maitheen Rawther, v. Sophiamma

Kerala HC18 Mar 2019RSA/902/2003

Case brief

AI extract

What is this about?

The High Court allowed this second appeal, setting aside the decrees of the trial and first appellate courts which dismissed a suit for declaration of prescriptive right of easement and easement by necessity. The Court noted the lower courts erred legally regarding the nature of the suit and pleading requirements, remanding the matter for fresh disposal.

What did the court decide?

The decree and judgment of the trial and first appellate courts are set aside. The matter is remanded to the trial court for fresh disposal within seven months.

Maitheen Rawther, Vs Sophiamma — 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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MONDAY ,THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940

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RSA.No. 902 of 2003(G)

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AGAINST THE JUDGMENT AND DECREE DATED 30-08-2003 IN AS 8/1999 of DISTRICT COURT & SESSIONS COURT,KOTTAYAM

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AGAINST THE JUDGMENT AND DECREE DATED 16-12-1998 IN OS 268/1992 of MUNSIFF COURT, CHANGANACHERRY

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APPELLANTS/APPELLANTS/PLAINTIFFS:

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1 MAITHEEN RAWTHER (STRUCK OUT) S/O.HASSAN RAWTHER, MUSLIM, AGED 59, OF KOKKAPUZHA VEEDU, ERATHUVADAKARA MURI, VALLAVOOR VILLAGE, NOW RESIDING AT PARUMBRATHU VEEDU, .DO. MURI, DO VILLAGE, CHANGANACHERRY, KOTTAYAM.

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2 ANZARI, S/O.MAITHEEN RAWTHER, AGED 28, OF KOKKAPUZHA VEEDU, ERATHUVADAKARA MURI, VALLAVOOR VILLAGE, NOW RESIDING AT PARUMBRATHU VEEDU, .DO. MURI, DO VILLAGE, CHANGANACHERRY, KOTTAYAM.

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THE NAME OF THE 1ST APPELLANT IS STRUCK OFF FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER THE ORDER DATED 27.03.2017 IN I.A.NO.661/20178

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BY ADVS. SRI.T.I.ABDUL SALAM SRI.SUNIL N.SHENOI

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 SOPHIAMMA,

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W/O.SHAJAHAN, AGED 36, RESIDING AT MUNDOLIL VEEDU, ERATHUVADA KARA-MURI, VALLAVOOR VILLAGE, CHANGANACHERRY, KOTTAYAM (2ND DEFENDANT)

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2 SARASUKUTTYAMMA,

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W/O.RAMAKRISHNA PILLAI, AGED 69, RESIDING AT MOOLAPPARAMBU PADINJAREVEETTIL, ERATHUVADAKARA MURI, VALLAVOOR VILLAGE, CHANGANACHERRY, KOTTAYAM.(ADDL.3RD

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RSA.No. 902 of 2003 2

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DEFENDANT)

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3 RAVEENDRAN PILLAI, S/O.RAMAKRISHNA PILLAI, AGED 49, RESIDING AT PADINJATTAYIL HOUSE, DO. .DO.(ADDL.4TH DEFENDANT).

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4 SARALAMMA, D/O.RAMAKRISHNA PILLAI, AGED 42, OF DO. .DO. (ADDL.5TH DEFENDANT).

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5 SUDHAMANI, D/O.RAMAKRISHNA PILLAI, AGED 40, OF DO. .DO. (ADDL.6TH DEFENDANT).

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6 MADHUKUMAR, S/O.RAMAKRISHNA PILLAI, AGED 45, OF DO. .DO. (ADDL.7TH DEFENDANT).

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7 SATHI (STRUCK OFF) D/O.RAMAKRISHNA PILLAI, AGED 38, RESIDING AT KUNNAL VEEDU, KOTTANGAL, CHUNGAPPARA (ADDL.8TH DEFENDANT.

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THE NAME OF THE 7TH RESPONDENT IS STRUCK OUT FROM THE PARTY ARRAY AT THE RISK OF THE APPLLENTS AS PER THE ORDER DATED 20.12.2017 IN I.A.3434/2017

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BY ADVS.

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SRI.BABU CHERUKARA & P.A.SALIM FOR R1 SRI.JOHN JOSEPH VETTIKAD FOR R2 TO R7

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RSA.No. 902 of 2003 3

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JUDGMENT

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A suit for declaration of prescriptive right of

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easement of way and easement by necessity ended in dismissal in both the trial court and the first appellate court. The trial court dismissed the claim of prescriptive right on a strange finding that instead of asking for prescriptive right of easement the plaintiffs had to sue for declaration of quasi easement. In appeal, the first appellate court though

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found a way in existence, the suit was dismissed on the ground that there is no pleading in the plaint with respect to user 'as of right' and 'as an easement'.

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The questions came up for consideration are: i) Whether the finding of the trial court that the plaintiffs had to sue for declaration of quasi

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easement instead of declaration of prescriptive right reflects proper application of law in force ?

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ii) Whether the first appellate court justified

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RSA.No. 902 of 2003 4

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in dismissing the suit on the ground that there is no specific pleading regarding user “as of right” and “as an easement”, if it is otherwise evident from the pleading raised in the suit ?

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iii) What would be the impact of absence of any

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other alternative way available to the property of plaintiffs ?

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It is seemed to be so strange that the trial

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court dismissed the suit for declaration of prescriptive right of easement of way on a strange

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finding that the plaintiffs ought to have filed the

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suit for declaration of quasi easement. It is so unfortunate that the trial court has not applied the

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settled legal position regarding the acquisition of prescriptive right of easement as well as the

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requirement of providing a way by easement of necessity on severance of tenements.

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The first appellate court though the existence

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of a way was found, the right claimed by the plaintiffs

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were rejected on the reason that there is no specific

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RSA.No. 902 of 2003 5

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pleading in the plaint with respect to user “as of right” and “as an easement”. The whole pleading included in the plaint would show that there is no specific pleading regarding the user “as of right” and

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“as an easement”. The very case set up by the

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plaintiffs is that they do not have any other way as means of access to their property and they were using

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the way in C schedule as means of access. The

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commissioner who visited the property had noticed construction of a 'Kayyala' mud wall on either side of

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the way in dispute to a certain extent and the existence of a transformer on the side of way. The defendants claim that the transformer was installed within their property, but there is no proper

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explanation from the defendants why they have maintained a way through their property by providing

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mud wall on its either side. The transformer is situated on the side of the way in dispute i.e.

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somewhat middle of property of defendant. If there was

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no such way, the transformer would on a side of the

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RSA.No. 902 of 2003 6

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property of defendant lying adjoining to the public road. But transformer is situated not adjoined to the public road, but somewhat middle of property of defendant i.e. on the side of the disputed way. It is an indication of existence of disputed way. Yet another argument was also advanced that since 11 KV line gone through the said property certain portion of property left out free from any growth. It is too difficult to

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accept the said contention because of the reason that the property left out is having only a 9 feet width. In

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the said circumstance,the learned counsel for the

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plaintiffs/appellants pressed for a remand of the matter to the trial court and took support from a similarly situated case in Ibrahimkutty v. Abdul

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Rahumankunju (1992 KHC 443) .Since, it is a matter

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relating to means of access to the registered holding, more serious approach is required in the matter both by the trail court and the first appellate court. The

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jurisdiction vested with the first appellate court and the trial court has not been exercised in its correct

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RSA.No. 902 of 2003 7

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perspective and as such the decree and judgment of both

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the trial court and the first appellate court are hereby set aside. The matter is remanded back to the the trial court for the purpose of fresh disposal in accordance with law in force. The parties shall appear before the trial court on 5.4.2019 and the trial court shall dispose of the matter within a time schedule of seven months from the date of appearance of the parties. No order as to costs.

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This second appeal is allowed in part. No order as to costs.

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Sd/-

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P.SOMARAJAN, JUDGE

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// TRUE COPY // PA TO JUDGE

Maitheen Rawther, v. Sophiamma

Case brief

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Maitheen Rawther, v. Sophiamma

Case brief

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