Dismissed

Krishnankutty Nair v. Soman Pillai

Kerala HC1 Feb 2019SA/725/2002

Case brief

AI extract

What is this about?

Two second appeals were preferred by plaintiffs challenging a decree that dismissed their suit for declaration of easement of way and mandatory injunction. The Court dismissed the appeals, holding that the plaintiffs failed to prove user 'as of right' for the requisite statutory period, particularly due to the omission of the specific way in the testator's registered Will.

What the court decided

AI extract

Krishnankutty Nair Vs Soman Pillai — 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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FRIDAY ,THE 01ST DAY OF FEBRUARY 2019 / 12TH MAGHA, 1940

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SA.No. 725 of 2002

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AGAINST THE JUDGMENT AND DECREE DATED 12-04-2002 IN AS 253/1994 of ADDITIONAL DISTRICT COURT,KOTTAYAM

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AGAINST THE JUDGMENT AN DECREE DATED 30-09-1994 IN OS 332/1991 of MUNSIFF COURT, VAIKOM

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APPELLANTS-RESPONDENTS-PLAINTIFFS:

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1 KRISHNANKUTTY NAIR, CHERUVALLIL VEEDU, VADAKKUMBHAGOM, VADAYAR, VAIKOM

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2 RAJAMMA WIFE OF RAGHAVAN PILLAI, DO.

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BY ADVS. SRI.T.R.HARIKUMAR

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SRI.A.G.ARUN

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RESPONDENT/APPELLANT/DEFENDANT:

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SOMAN PILLAI, S/O PARAMESWARAN PILLAI, SREENILAYATHAYA PARAYATHU VEEDU, PADINJARE KARA, MURI, NADUVILE VILLAGE, VAIKOM.

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BY ADVS. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B.

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01.02.2019, ALONG WITH SA.552/2002, SA.772/2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SA.No. 725 of 2002 & 772 of 2002 2

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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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FRIDAY ,THE 01ST DAY OF FEBRUARY 2019 / 12TH MAGHA, 1940

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SA.No. 772 of 2002

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AGAINST THE JUDGMENT AND DECREE DATED 12-04-2002 IN AS 252/1994 of ADDITIONAL DISTRICT COURT,KOTTAYAM

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AGAINST THE JUDGMENT AND DECREE DATED 30-11-1994 IN OS 78/1991 of MUNSIFF COURT, VAIKOM

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APPELLANTS/RESPONDENTS/DEFENDANTS:

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1 KRISHNANKUTTY NAIR CHERUVALLIL VEEDU,VADAKKUMBHAGOM, VADAYAR, VAIKOM.

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2 RAJAMMA, WIFE OF RAGHAVAN PILLAI, DO.

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BY ADV.SRI.T.R.HARIKUMAR

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RESPONDENT/APPELLANT/PLAINTIFF:

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SOMAN PILLAI SON OF PARAMESWARAN PILLAI, SREENILAYATHAYA PARAYATHU VEEDU, PADINJARE KARA MURI, NADUVILE VILLAGE, VAIKOM.

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BY ADVS. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B.

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01.02.2019, ALONG WITH SA.552/2002, THE COURT ON THE SAME DAY DELIVERED THE

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SA.No. 725 of 2002 & 772 of 2002 3

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FOLLOWING:

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JUDGMENT

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These two appeals were preferred by the

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plaintiffs in the leading case in O.S.332/1991 of the Munsiff's Court, Vaikom in which they are the plaintiffs. The defendant in that suit is the plaintiffs in connected suit in O.S.No.78/1991 of the same Court. It was for the grant of a permanent prohibitory injunction against trespass and demolishing the compound wall around their

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registered holding. The leading case was filed for declaration of easement of way by prescription over

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item No.4 schedule property, prohibitory and mandatory injunction. The mandatory injunction sought for removal of obstructing compound wall to an extent of 5 feet. The Trial Court decreed the

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leading case and dismissed the connected suit. But, in appeal the Appellate Court reversed the finding

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of the Trial Court and dismissed the leading case

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in O.S.No.332/1991 and decreed the suit in O.S.,No.78/1991. Aggrieved by the above said two

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SA.No. 725 of 2002 & 772 of 2002 4

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decree and judgment, the plaintiffs in the leading case, who are the defendants in the connected suit came up with this appeal.

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The dispute is pertaining to item No.4

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schedule way. The plaintiffs property scheduled in plaint as item No.1 and 2. It was obtained by the plaintiffs No.1 and 2 under a Registered Will dated 18/10/1986. The testator died on 8/10/1990. The

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suit was filed in the year 1991, just after the 5 years from the date of execution of Will dated 18/10/1986. In the said Will, another way was set apart and made mention as means of access to the property of the plaintiff. There is no mentioning about the plaint schedule item No.4 way in the above said Will, though, it was executed just 5 years prior to the institution of the suit. The plaintiffs came into the ownership of the property and obtained title over the same only in the year 1990, just few months before the institution of the suit. Necessarily, there should be pleading in the plaint as to user of the way 'as of right' 'as an easement' for the required period in continuation

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SA.No. 725 of 2002 & 772 of 2002 5

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of the predecessor in interest namely the testator

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under Ext.B3. No evidence adduced to show the user of way by the testator 'as of right' over the item No. 4 schedule property. If it was actually, used by the testator 'as of right' it might have found a place in the document executed by him bequeathing his right, title and interest over the property in favour of the plaintiffs, that too just 5 years before his death and 5 years before the suit. The omission to specify and mention the existence of the said way item No.4 in Ext.B3 Will would be self explanatory with respect to the nature of user, if any, enjoyed by the testator over item No.4 of the plaint. In order to satisfy an easement of way by prescription the user must be 'as of right'. The Commissioner who had located the way by preparing a rough sketch based on the foot marks and the way is lying in a zigzag manner passing through some what middle of the property of the defendant, bifurcating the same into two irregular pieces, this would show that the user, if any, was not 'as

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of right'. The findings rendered by the First

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SA.No. 725 of 2002 & 772 of 2002 6

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Appellate Court, hence deserves no interference.

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Both the appeals are hereby dismissed.

Sd/-

P.SOMARAJAN

JUDGE

//TRUE COPY//

P.A. TO JUDGE

msp

Krishnankutty Nair v. Soman Pillai

Case brief

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Krishnankutty Nair v. Soman Pillai

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