Dismissed

Narayanan v. Vasantha

Kerala HC5 Feb 2020RSA/130/2020

Case brief

AI extract

What is this about?

In this second appeal concerning a property dispute, the High Court of Kerala dismissed the appellant's challenge to the lower courts' decree. The appeal was dismissed because the court found no evidence to support the appellant's claim that a specific schedule of land was a public way or a way explicitly granted in the partition deed. The lower courts' findings were upheld as there were no substa

What did the court decide?

The second appeal was dismissed as the appellant failed to prove any right over the claimed way.

Narayanan Vs Vasantha — Property and Title | Kerala HC (2020)

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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 SATHISH NINAN

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WEDNESDAY, THE 5TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941

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RSA.No.130 OF 2020

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AGAINST THE JUDGMENT AND DECREE IN AS NO.2/2013 DATED 27/09/2019 OF THE ADDITIONAL DISTRICT JUDGE, OTTAPALAM IN OS NO.111/2011 OF MUNSIFF'S COURT, OTTAPALAM DATED 28.09.2012

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APPELLANT/APPELLANT/PLAINTIFF:

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NARAYANAN,

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AGED 57 YEARS, S/O RAMAN THOTTATHIL,MULANJOOR AMSOM AND DESOM,OTTAPALAM TALUK,PALAKKAD DISTRICT-679101.

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BY ADV. SRI.V.B.RAMANUNNI MENON

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 VASANTHA, AGED 62 YEARS, W/O GOVINDANKUTTY NAIR, KUTTANIKKADE VEETTIL,

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MULANJOOR AMSOM AND DESOM, PALAKAD - 679511.

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2 GOVINDANKUTTY NAIR, AGED 72 YEARS, H/O.VASANTHA,KUTTANIKKADE VEETTIL, MULANJOOR AMSOM AND DESOM,PALAKKAD-679511.

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3 JIJESH, AGED 32 YEARS, S/O.VASANTHA AND GOVINDANKUTTY, KUTTANIKKADE VEETTIL,MULANJOOR AMSOM AND DESOM,PALAKKAD-679511.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = RSA No.130 of 2020

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= = = = = = = = = = = = = = = = = = Dated this the 5^th day of February, 2020

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JUDGMENT

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The suit for prohibitory and mandatory injunction was dismissed by the courts below. Against the concurrent decree the plaintiff is in appeal.

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The dispute centers around the plaint 'B' schedule way. The existence of the plaint 'B' schedule way is not in dispute. According to the defendants, it is their private way.

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The plaintiff claimed that he has a right to

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use the plaint 'B' schedule way under Ext.A1 sale deed which is his document of title relating to the plaint 'A' schedule property. The courts below noticed that neither Ext.A1 nor the prior deeds of Ext.A1 makes any mention of the plaintiff's right to use the 'B' schedule way. Except for mentioning one of the boundaries of the plaint 'A' schedule property as a way, no right over the same has been created. The plaintiff as PW1 had admitted the same

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RSA No.130 of 2020

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:- 2 :-

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in his cross-examination. Therefore, the said claim fails.

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The plaintiff would also claim that the plaint 'B' schedule is a public way. The courts below noticed that except for a blank claim that it is a public way, no evidence is before the court to find plaint 'B' schedule to be a public way.

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As regards the user of Plaint 'B' schedule way by the plaintiff, the courts below noticed that the plaintiff as PW1 admitted during crossexamination that when he purchased the plaint 'A' schedule property there was a thorn fencing on the northern side of the plaint 'A' schedule separating it from the 'B' schedule. He has further admitted that even he has reconstructed the same. To substantiate that the plaint 'B' schedule way was being used by the plaintiff and his predecessors, none of the prior owners or nearby residents of the plaint 'A' schedule have been examined.

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Though the plaintiff would contend that the plaint 'B' schedule way was left out as a way in Ext.A5 partition deed which is the basic document

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RSA No.130 of 2020

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:- 3 :-

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between the predecessor-in-interest of the parties and binding upon the parties to the suit, the plaintiff could not prove that the plaint 'B' schedule is the way as mentioned in Ext.A5. No attempt is made by the plaintiff to have the way claimed to have been mentioned in Ext.A5 to be identified and located with the assistance of a survey commission. There is no material to find that the plaint 'B' schedule is the portion left out in common in Ext.A5 partition deed.

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The evidence in the case has been appreciated by the courts below and the findings have been arrived at. No question of law much less any substantial question of law arises for consideration in this second appeal. Appeal fails and is accordingly dismissed.

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Sd/- SATHISH NINAN JUDGE

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kns/-

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//True Copy//

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P.S. to Judge

Narayanan v. Vasantha

Case brief

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Narayanan v. Vasantha

Case brief

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