Partly allowed

Narayanan v. Soman and Another

Kerala HC4 Jul 2019RSA/94/2010

Case brief

AI extract

What is this about?

The court allowed the appeal in part, finding the lower courts overlooked the defendant's admission and legal requirements for walkable ways. It remanded the matter for a survey commission to locate a 3-foot width way at the extreme eastern portion of the respondent's property.

What did the court decide?

The appeal was allowed in part; the decree of lower courts set aside; matter remanded to trial court to issue a survey commission and locate a 3-foot wide way.

Narayanan Vs Soman and Another — 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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THURSDAY, THE 04TH DAY OF JULY 2019 / 13TH ASHADHA, 1941

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RSA.No.92 of 2010

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JUDGMENT IN AS 92/2007 of IIND ADDITIONAL DISTRICT COURT, THODUPUZHA DATED 30-09-2009

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JUDGMENT IN OS 168/2005 of MUNSIFF MAGISTRATE COURT,THODUPUZHA DATED 29-09-2007

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APPELLANT/APPELLANT/DEFENDANT:

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NARAYANAN, AGED 59 YEARS, S/O.KARUNAKARAN, NADUKKUZHIYIL HOUSE, MULLARINGADU KARA, VENNAPPURAM VILLAGE, THODUPUZHA TALUK.

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BY ADV. SRI.M.NARENDRA KUMAR

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RESPONDENT/RESPONDENT/PLAINTIFF:

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SOMAN, AGED 44 YEARS, S/O.KOCHUKUNJU, NADUKKUZHIYIL HOUSE, MULLARINGADU KARA, VENNAPPURAM VILLAGE, THODUPUZHA TALUK.

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BY ADVS. SMT.RESMI NANDANAN SRI.P.A.HARISH SRI.V.V.SURENDRAN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04.07.2019, ALONG WITH RSA.94/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.S.A.Nos.92 & 94 of 2010

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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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THURSDAY, THE 04TH DAY OF JULY 2019 / 13TH ASHADHA, 1941

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RSA.No.94 of 2010

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JUDGMENT IN AS 93/2007 of IIND ADDITIONAL DISTRICT COURT, THODUPUZHA DATED 30-09-2009

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JUDGMENT IN OS 169/2005 of MUNSIFF MAGISTRATE COURT,THODUPUZHA DATED 29-09-2007

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APPELLANT/APPELLANT/PLAINTIFF:

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NARAYANAN, AGED 59 YEARS, S/O.KARUNAKARAN, NADUKKUZHIYIL HOUSE, MULLARINGADU KARA, VENNAPPURAM VILLAGE, THODUPUZHA TALUK.

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BY ADV. SRI.M.NARENDRA KUMAR

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 SOMAN, AGED 44 YEARS, NADUKKUZHIYIL HOUSE, MULLARINGADU KARA, VENNAPPURAM VILLAGE, THODUPUZHA TALUK.

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2 PRABHAKARAN, AGED 59 YEARS S/O.KRISHNANKUTTY, NADUKKUZHIYIL HOUSE, MULLARINGADU KARA, VENNAPPURAM VILLAGE, THODUPUZHA TALUK.

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BY ADVS. SMT.RESMI NANDANAN SRI.P.A.HARISH SRI.V.V.SURENDRAN

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04.07.2019, ALONG WITH RSA.92/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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R.S.A.Nos.92 & 94 of 2010

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J U D G M E N T

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Two suits were tried jointly in O.S.No.169 of 2005 and O.S.No.168 of 2005. O.S.No.169 of 2005 is

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by the appellant herein and it is the leading case.

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Hence the parties herein below referred in their

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status in O.S.No.169 of 2005. The other suit

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O.S.No.168 of 2005 is filed by the 1^st defendant

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against the plaintiff herein. The leading case O.S.NO.169 of 2005 was dismissed by both the Trial Court and the First Appellate Court and the connected suit was decreed granting permanent prohibitory injunction with respect to the registered holding of the defendant.

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The claim of the plaintiff in the leading

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case is by way of prescriptive right of easement of way through plaint B schedule property. It is a way passing through the eastern side of the defendant's property lying north-south direction. According to

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R.S.A.Nos.92 & 94 of 2010

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the plaintiff, it is having a width of 5 ft. The

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suit was filed when there was an attempt to obstruct the same. Both the courts below found that the plaintiff failed to establish the prescriptive

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right of easement of way over plaint B schedule. Consequently the leading case was dismissed and the connected suit for injunction against trespass was decreed by both the courts below.

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The dispute centers around the plaint B

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schedule way claimed by the plaintiff in the

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leading case. It is having a width of 5 ft.

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according to the plaintiff. A written statement was

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submitted by the 1^st defendant, wherein the 1^st

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defendant, though at first denied the claim of the

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plaintiff for 'B' schedule having a width of 5 feet, it is pleaded and admitted in paragraph 4 of the written statement that there is a way having 2

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feet width through the eastern side of the

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R.S.A.Nos.92 & 94 of 2010

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defendant's property and that the intention of the

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plaintiff in the suit is to widen the said way. The

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relevant portion of the admission made in the

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written statement in paragraph 4 is as follows;

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“Whatever right he has obtained is with respect to the 2 ft. lane only. The sole intention of the plaintiff is to widen the pathway already existed under the cover of the suit.”

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The learned counsel for the respondent

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submitted that the admission made therein is not

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with respect to the way in dispute but is

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pertaining to some other way. But the pleadings in the written statement is so specific and clear by admitting right of plaintiff over a way having 2 feet width and advanced that the sole intention of plaintiffs is to widen the way already existed under the cover of suit. In the present case, the plaintiffs claimed 5 feet width. Only 2 feet width

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alone was admitted. The pleadings in the written

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R.S.A.Nos.92 & 94 of 2010

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statement that, “the sole intention of the plaintiff is to widen the pathway already existed under the cover of the suit.” would show that the defendant had referred two feet way in existence and admitted acquisition of right to use the same by the plaintiff and alleged that the attempt of

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plaintiff is to widen the said way. Two

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Commissioners were issued, who in turn visited the property at the instance of the plaintiff and the 1^st defendant. The commissioner who visited the

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property at the instance of the plaintiff had prepared Ext.C1 report and Ext.C1(a) rough sketch. The commissioner who visited the property at the

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instance of the 1^st defendant had prepared Ext.C3 report and Ext.C3(a) and reported the existence of way in tune with the admission made in the written statement. The Commissioner has located the above

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said way on the eastern side of their property.

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R.S.A.Nos.92 & 94 of 2010

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Four survey stones were also located by the commissioner besides a ganda and the way in existence reported lying east to the survey stones and ganda. The Commissioner who visited the property at the instance of the plaintiff who prepared Ext.C1 report and Ext.C1(a), also submitted a report and rough sketch in tune with the very same description given in Ext.C3(a) rough sketch and Ext.C3 report, wherein also the way was noticed lying on the western side of the four survey stones and ganda passing through the property of the defendant, i.e., through the eastern part of the defendant's property. It is thereafter a survey commission was issued. Interestingly, the survey commission has located the property of the defendant upto the place wherein the four survey stones are situated on the eastern side and an attempt was made to shift the

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R.S.A.Nos.92 & 94 of 2010

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way in existence further east to all four survey stones, instead locating west to the same in accordance with Exts.C1(a) and C3(a). It is seemed

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to be so unfortunate that the Surveyor has shifted the way further east to all the survey stones and

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ganda. As per survey plan, the way is not identified and located. That may be the reason, the way was located by doted line. It is against Exts.C1, C1(a), C3 and C3(a). Earlier two Commissioners, who visited the property at the instance of the plaintiff and defendant, had reported the existence of a way west to all the four survey stones and ganda. The admission made by the defendant in the written statement with respect to the existence of a 2 ft. way and the right

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obtained by the plaintiff over it, assumes

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importance especially when they contended that the

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suit intended only for widening the way in

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R.S.A.Nos.92 & 94 of 2010

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existence as 5 ft., instead of 2 ft. Both the Trial Court and the First Appellate Court overlooked the admission made by the defendant in answer to the plaint claim in the leading case. Further, both the Commissioners reported the existence of 5 steps provided through the above said way and also installation of a slab so as to have convenient user of the eastern way lying on the eastern part of the defendant's property. Providing various steps on a way alleged would sufficiently show the user as of right. Otherwise, there may not be any occasion for providing permanent structure by way of steps so as to have a convenient user of the way. The admission made in the written statement would sufficiently show and support the case of plaintiff to the extent that they were using a way having 2 ft. width as admitted by the defendant. At this juncture, yet another question came up for

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R.S.A.Nos.92 & 94 of 2010

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consideration whether the 2 ft. way admitted by the defendant would be sufficient in view of clause (e) to Section 28 of Indian Easement Act, which says that in the case of other prescriptive rights (other than prescriptive right to pollute air or water and light or air), the extent of every prescriptive right and mode of its enjoyment must be determined by the accustomed user of the right. That stands for what is actually accustomed or required to facilitate the way in existence as a means of access. Definitely, at least 3 ft. width is necessary so as to provide a walkable way. As such, the plaintiff is entitled to a 3 ft. way through the eastern extremity of defendant's property, that is through the western side of the four survey stones and ganda shown by the Commissioners in both the rough sketches and survey plan prepared. That has not been neither considered

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R.S.A.Nos.92 & 94 of 2010

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nor addressed by both the courts below. For that purpose, a remand of the matter to the Trial Court for the purpose of locating 3 ft. width way just west to the place wherein the four survey stones and ganda are situated, cannot be avoided.

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The decree and judgment of both the courts

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below are hereby set aside for the purpose of

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issuing a survey commission and to draw a plan by locating 3 feet width way through the extreme eastern portion of property of defendant i.e. just west to the four survey stones and ganda located as

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the dividing line of property of defendant in

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Ext.C1(a) and C3(a) so as to annex the same to the decree that may be granted and the remand is only

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for that purpose as the plaintiff is entitled to 3 feet width way through the extreme eastern portion of defendant's property and entitled to grant of a

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decree to that effect by annexing the plan

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R.S.A.Nos.92 & 94 of 2010

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prepared. The trial court shall decree the suit to the extent of 3 feet way as aforesaid by annexing the plan that may be obtained by locating 3 feet width way. The parties shall appear before the trial court on 19/07/2019.

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The appeal is allowed in part accordingly.

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All pending interlocutory applications are

closed.

Sd/-

JUDGE

ami/

R.S.A.Nos.92 & 94 of 2010

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APPENDIX

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R.S.A.No.94 of 2010

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APPELLANT'S EXHIBITS:

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ANNEXURE A1: CERTIFIED COPY OF THE DOCUMENT NO.2765 OF 1998 OF KARIKODE SUB REGISTRY.

Narayanan v. Soman and Another

Case brief

What is this about?

What did the court decide?

Narayanan v. Soman and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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