Partly allowed

C.A John v. C.A Joseph @ Pappa

Kerala HC15 Nov 2023OP(C)/1692/2023

Case brief

AI extract

What is this about?

This order allowed an original petition seeking to set aside two orders in a suit for easement by prescription. The High Court permitted the petitioner to file an application for measurement of the pathway's width to establish factual inputs relevant to the dispute.

What did the court decide?

Exhibits P7 and P10 were set aside and the Ext.P5 application for issuance of commission for measuring the pathway was allowed.

C.A John Vs C.A Joseph @ Pappa — Property and Title | Kerala HC (2023)

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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 C. JAYACHANDRAN

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WEDNESDAY, THE 15^TH DAY OF NOVEMBER 2023 / 24TH KARTHIKA, 1945

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O.P.(C) NO.1692 OF 2023

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TO SET ASIDE EXHIBIT P7 AND EXHIBIT P10 ORDERS IN O.S. NO.927/2019 ON THE FILE OF IIND ADDITIONAL MUNSIFF'S COURT, ERNAKULAM.

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PETITIONER/PETITIONER/PLAINTIFF:

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C.A JOHN,

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AGED 76 YEARS, S/O. LATE AVIRA C.V., CHULLIYADAN HOUSE, CHILAVANNOOR ROAD, KADAVANTHRA P.O., PIN-682 020.

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BY ADVS. A.T.ANILKUMAR V.SHYLAJA

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 C.A JOSEPH @ PAPPA, AGED 77 YEARS, S/O. LATE C.V. ANTONY, CHULLIYADAN HOUSE, CHILAVANNOOR ROAD, KADAVANTHRA,

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KOCHI, PIN-682 018.

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2 C.V. VARGHESE, @ VAKKACHAN, AGED 73 YEARS, CHULLIYADAN HOUSE, CHILAVANNOOR ROAD, KADAVANTHRA,

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KOCHI, PIN-682 018.

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3 C.V. MARTIN @ BENNY, AGED 56 YEARS, CHULLIYADAN HOUSE, CHILAVANNOOR ROAD, KADAVANTHRA,

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KOCHI, PIN-682 018.

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4 LEKHA P., AGED 73 YEARS, W/O. MADHURAJ NAIR, SAMYAMA HOUSE, KALOOR, ERNAKULAM, PIN-682 017.

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-2-

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O.P.(C) NO.1692 OF 2023

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R1&R3 SRI.AJITH VISWANATHAN

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R4 SRI.S.RENJITH SRI.P.K.SREEVALSAKRISHNAN(K/581/2005) SRI.S.UNNIKRISHNAN (NELLAD)(K/211/2006) SRI.K.R.PRATHISH(K/174/2013) SRI.JOEL CHALAMANA(K/001360/2022) SRI.KRISHNA DAS(K/003368/2022)

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(C) NO.1692 OF 2023

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JUDGMENT

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Dated this the 15^th day of November, 2023

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The plaintiff in O.S. No.927/2019 of the

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II Additional Munsiff Court, Ernakulam is the

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petitioner herein. The petitioner/plaintiff filed Ext.P5 application for measurement of the disputed

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pathway especially with respect to its width, to

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which application, defendants 1 to 3 filed an

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objection vide Ext.P6. By Ext.P7 order, the application for issuance of commission was

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declined, holding that an advocate commission with the assistance of a surveyor will not establish a right of easement by prescription claimed by the petitioner/plaintiff. Although the plaintiff sought for a review of Ext.P7 order vide Ext.P8

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application, the same was also dismissed by Ext.P10 order.

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petitioner, respondents 1 to 3 and the 4^th respondent.

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O.P.(C) NO.1692 OF 2023

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The 4^th respondent is supporting the cause

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of the petitioner. Although, learned counsel for respondents 1 to 3 have reiterated before this Court the findings of the learned Munsiff that, in a claim for easement by prescription, a measurement commission will be of little avail

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and that the same has to be established by proving

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the user in terms of law for the prescribed period, this Court is inclined to allow the instant Original Petition. It is true that the claim for easement by prescription has to be established only in terms of the user for the prescribed period, with the prescribed ingredients. However, in the instant case, the

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existence of a pathway has not been disputed by defendants 1 to 3 and what they essentially

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dispute is the width of the pathway, which according to the petitioner/plaintiff is 3.1 meters, whereas the same is only 2.7 meters

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according to defendants 1 to 3. In such circumstances, this Court is of the opinion that

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-5-

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O.P.(C) NO.1692 OF 2023

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the actual width of the pathway will be a relevant input in deciding the real dispute in controversy between the parties. The question as to whether it is strictly necessary or it is going to have a direct impact on the claim need not be considered at this stage. Evidence with respect to a factual input, which may have relevance in the ultimate adjudication, is always liable to be permitted and the plaintiff being a master of the suit, should be given all opportunity to prove his case in accordance with law.

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In the circumstances, Exts.P7 and P10 are set aside. Ext.P5 application is allowed. It is clarified that the defendants will be at liberty to file work memo in respect of the points which is required to be noted from their side.

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The Original Petition is disposed of as above.

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Sd/-

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C. JAYACHANDRAN JUDGE

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bpr

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O.P.(C) NO.1692 OF 2023

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APPENDIX OF OP(C) 1692/2023

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PETITIONER'S EXHIBITS

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Exhibit P1 THE TRUE COPY OF THE PLAINT IN OS NO. 927/2019 ON THE FILE OF II ND ADDITIONAL MUNSIFF COURT ERNAKULAM DATED 6.7.2019 Exhibit P2 THE TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS NO 1 AND 3 II ND ADDITIONAL MUNSIFF COURT ERNAKULAM DATED 6.12.2019 Exhibit P3 THE TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 4TH DEFENDANT, II ND ADDITIONAL MUNSIFF COURT ERNAKULAM DATED 29.9.2022 Exhibit P4 THE TRUE COPY OF THE COMMISSION REPORT DATED 08.08.2019, II ND ADDITIONAL MUNSIFF COURT ERNAKULAM Exhibit P5 THE TRUE COPY OF THE COPY OF THE I.A. NO. 3/2022 IN OS 927/2019, II ND ADDITIONAL MUNSIFF COURT ERNAKULAM DATED 18.10.2022 Exhibit P6 THE TRUE COPY OF THE COUNTER AFFIDAVIT TO I.A NO. 3/2022, II ND ADDITIONAL MUNSIFF COURT ERNAKULAM,DATED 19.1.2023 Exhibit p7 THE TRUE COPY OF THE ORDER PASSED IN I.A NO:3/2022 IN OS 927/2019,II ND ADDITIONAL MUNSIFF COURT ERNAKULAM, DATED 28.1.2023 Exhibit P8 THE TRUE COPY OF RP NO 17/2023 FILED BY THE PETITIONER TO REVIEW THE EXHIBIT P7 ORDER, II ND ADDITIONAL MUNSIFF COURT ERNAKULAM, DATED 3.3.2023

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O.P.(C) NO.1692 OF 2023

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Exhibit P9 THE TRUE COPY OF THECOUNTER AFFIDAVIT IN EXHIBIT P8 APPLICATION, II ND ADDITIONAL MUNSIFF COURT ERNAKULAM, DATED 23.3.2023

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Exhibit P10 THE TRUE COPY OF THE ORDER IN R.P NO. 17/2023 IN IA. NO. 3/2022 IN OS NO. 927/2019, II ND ADDITIONAL MUNSIFF COURT ERNAKULAM, DATED ON 03.04.2023

C.A John v. C.A Joseph @ Pappa

Case brief

What is this about?

What did the court decide?

C.A John v. C.A Joseph @ Pappa

Case brief

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