Dismissed

Sankaran Nair v. Parukutty Amma

Kerala HC19 Mar 2019SA/51/2003

Case brief

AI extract

What is this about?

This is a second appeal against decrees in a suit for declaration of prescriptive right of easement (right of way) and injunction. The High Court upheld the lower courts' concurrent findings, holding that a mere user through the middle of property bifurcating the dominant heritage into two uneven halves qualifies only as permissive user, not user as of right.

What did the court decide?

Appeal dismissed. No costs.

Sankaran Nair Vs Parukutty Amma — Specific Performance | 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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TUESDAY, THE 19TH DAY OF MARCH 2019 / 28TH PHALGUNA, 1940

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SA.No. 51 of 2003 (F)

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AGAINST THE DECREE AND JUDGMENT DATED 17.09.2002 IN AS No.64/1999 of SUB COURT, TIRUR

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AGAINST THE DECREE AND JUDGMENT DATED 31.07.1999 IN OS No.349/1996 of MUNSIFF COURT, TIRUR

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APPELLANTS/APPELLANTS/PLAINTIFFS:

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1 KANKUNNATH MELETHODI SANKARAN NAIR, S/o KALLIYANI AMMA, 62 YEARS, OTHUKKUNGAL (P.O), PUTHUR AMSOM, CHERUKUNNU DESOM, TIRURANGADI TALUK.

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2 PERUVUM KUZHIYIL ANADI, S/o THUPRAN, 57 YEARS, OTHUKKUNGAL (P.O), PUTHUR AMSOM, CHERUKUNNU DESOM, TIRURANGADI TALUK.

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BY ADV. SRI.P.CHANDRASEKHAR

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 VAYAKKARA PARUKUTTY AMMA, 78 YEARS, OTHUKKUNGAL (P.O.), PUTHUR AMSOM, CHERUKUNNU DESOM, TIRURANGADI TALUK.

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2 RAJAGOPALAN, 43 YEARS, OTHUKKUNGAL (P.O), PUTHUR AMSOM, CHERUKUNNU DESOM, TIRURANGADI TALUK.

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3 SREE KUMARAN, 43 YEARS, OTHUKKUNGAL (P.O),PUTHUR AMSOM, CHERUKUNNU DESOM, TIRURANGADI TALUK.

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4 GANGADHARAN, OTHUKKUNGAL P.O., PUTHUR AMSOM, CHERUKUNNU DESOM, TIRURANGADI TALUK.

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BY ADV.SRI.T.KRISHNANUNNI (SR.) FOR R1 TO R4 R2 TO R4 BY ADVS. SRI.VINOD RAVINDRANATH

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SMT.MEENA.A. SMT.M.R.MINI SRI.ASHWIN SATHYANATH SRI.ROHIT NANDAKUMAR

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

S.A.No.51 of 2003

JUDGMENT

Against the concurrent findings rendered by both the Trial Court and the First Appellate Court with respect to the right of way, the plaintiffs came up with this second appeal.

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The suit is one for declaration of prescriptive right of easement over a way and for injunction. The property over which the easement by prescription claimed was not scheduled in the plaint. Admittedly, this way is passing through the middle of the property, bifurcating a large extent of property owned by the defendants into two uneven halves. A mere user of the way through the middle of the property dividing the dominant heritage into two uneven pieces cannot be termed as a 'user as of right'. 'User as of right' stands for exercise of animus of the person to use the property in derogation of the right of original owner. If it divides the dominant heritage into two uneven pieces, bifurcates the same into two pieces, it cannot be brought under the purview of 'user as of right'. It can only be a permissive user. The finding rendered by both the Trial Court and the First Appellate Court thus deserves no interference. No substantial question of law, much less

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S.A.No.51 of 2003

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any question of law, was brought to the notice of this Court. Hence, the second appeal fails and is dismissed.

No costs.

Sd/-

P.SOMARAJAN

DMR/-

JUDGE

Sankaran Nair v. Parukutty Amma

Case brief

What is this about?

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Sankaran Nair v. Parukutty Amma

Case brief

What is this about?

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