Allowed

Babu v. Gopinathan.C.

Kerala HC9 Nov 2023RSA/1283/2014

Case brief

AI extract

What is this about?

This second appeal arose from a dispute regarding the installation of gates on a pathway by way of easement by grant. The High Court modified the mandatory injunction, allowing gate maintenance for third-party protection while preserving unrestricted common use by the parties.

What did the court decide?

The mandatory injunction to remove gates was modified; gates may be maintained to prevent third-party trespass provided there is no obstruction to the common use of the way by the litigating parties.

Babu Vs Gopinathan.C. — 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 A. BADHARUDEEN

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THURSDAY, THE 9TH DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945

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RSA NO. 1283 OF 2014

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AGAINST THE JUDGMENT DATED 18.11.2014 IN AS.NO.248/2011 OF III
ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM ARISING OUT OF THE
JUDGMENT DATED 23.5.2011 IN OS.NO.1791/2007 OF II ADDITIONAL MUNSIFF
COURT,THIRUVANANTHAPURAM

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APPELLANTS/RESPONDENT NOS.2 TO 5 AND ADDL.RESPONDENT NO.10/DEFENDANT 2 TO 5 AND LRS OF D1:

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1 BABU

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AGED 55 YEARS

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S/O.MEENAKSHI AMMA, RESIDING AT KARICHIVILAKATHU VEEDU,
KUSAVARKAL, PATHIRIPPALLY, MUKKOLA P.O.,
THIRUVANANTHAPURAM - 695 521.

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2MADHUSOODANAN
AGED 47 YEARS
S/O.MEENAKSHI AMMA, RESIDING AT KARICHIVILAKATHU VEEDU,
KUSAVARKAL, PATHIRIPPALLY, MUKKOLA P.O.,
THIRUVANANTHAPURAM - 695 521.

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3 THRILOCHANAN

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AGED 45 YEARS

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S/O.MEENAKSHI AMMA, RESIDING AT KARICHIVILAKATHU VEEDU,
KUSAVARKAL, PATHIRIPPALLY, MUKKOLA P.O.,
THIRUVANANTHAPURAM - 695 521.

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4 VARIJAKSHAN

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AGED 53 YEARS

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S/O.MEENAKSHI AMMA, RESIDING AT KARICHIVILAKATHU VEEDU,
KUSAVARKAL, PATHIRIPPALLY, MUKKOLA P.O.,
THIRUVANANTHAPURAM - 695 521.

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5 * M.AMMINI AMMA [DIED, LRS IMPLEADED]

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AGED 58 YEARS

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D/O.MEENAKSHI AMMA, RESIDING AT KARICHIVILAKATHU VEEDU,
KUSAVARKAL, PATHIRIPPALLY, MUKKOLA P.O.,
THIRUVANANTHAPURAM - 695 521.

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6*ADDL.APPELLANTS 6 AND 7 IMPLEADED

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RSA NO. 1283 OF 2014 2

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ADDL.A6 AJITH KUMAR.R, S/O RAJU,
AGED 42 YEARS
KUNJU VEEDU,PATHIRAPPALLY,MUKKOLA P.O.,
THIRUVANANTHAPURAM-695521
7ADDL.A7: REJITHA SUNIL, D/O.AMMINI AMMA
AGED 40 YEARS
KUNJU VEEDU,PATHIRAPPALLY,MUKKOLA P.O.,
THIRUVANANTHAPURAM-695521

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(LEGAL REPRESENTATIVES OF THE DECEASED 5TH
APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 6 AND 7
AS PER ORDER DATED 09/11/2023 IN IA 1/2023 IN RSA
1283/2014C)

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BY ADVS.
SRI.R.S.KALKURA
R.S.KALKURA
SMT.R.BINDU
SRI.HARISH GOPINATH
SRI.M.S.KALESH

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RESPONDENTS/APPELLANT AND RESPONDENTS 6 TO 9/PLAINTIFFS 1 TO

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5:

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1GOPINATHAN.C.
AGED 61 YEARS
S/O.CHELLAPPAN NAIR, GOVINDA SMARAKAM, JAYA PRAKASH
LANE, KUDAPPANAKUNNU, THIRUVANANTHAPURAM - 695 043.

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2 NANDAKUMAR, S/O.KRISHNAN NAIR AGED 37 YEARS SREE NANDANAM, ELAYAMPALLY, MUKKOLA P.O., THIRUVANANTHAPURAM - 695 521.

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3J.SOJA
AGED 41 YEARS
W/O.M.NAZEER, NAAS COTTAGE, MUKKOLACKAL P.O.,
THIRUVANANTHAPURAM - 695 521.
4B.A.VARGHESE
AGED 62 YEARS
S/O.ANTONY, BRAHMAKULAM, T.C.29/719(2),
ELANKAMVILAKAM LANE, PALKULANGARA, PETTAH P.O.,
THIRUVANANTHAPURAM- 695 024.

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5 P.A.IBRAHIMKUTTY AGED 61 YEARS S/O.P.K.ABDUL KHADER, SHAJI MANZIL, PATHIRIPALLY,

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RSA NO. 1283 OF 2014 3

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MUKKOLA P.O., THIRUVANANTHAPURAM - 695 521.

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R1 BY ADVS.
SRI.ASHOK SURESH
SRI.R.CHETHAN KRISHNA
SRI.K.B.PRADEEP

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
09.11.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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RSA NO. 1283 OF 2014 4

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JUDGMENT

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Dated this the 9^th day of November, 2023

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This second appeal has been filed under Order XLII Rules 1 and 2 r/w Section 100 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) against the judgment and decree in A.S.No.248/2011 on the files of the Additional District Court – III, Thiruvananthapuram, arose out of the judgment and decree in O.S.No.1791/2007 on the files of the Additional Munsiff Court – II, Thiruvananthapuram. The appellants herein are the defendants 2 to 5 in the original suit. The respondents herein are the plaintiffs in the original suit.

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Heard both sides.

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I have perused the verdicts under challenge.

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I shall refer the parties in this appeal as the ‘plaintiffs’ and ‘defendants 2 to 5’ for convenience.

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In this matter, this Court admitted this appeal on 17.12.2014, without formulating any substantial question of

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RSA NO. 1283 OF 2014 5

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law. However, on hearing both sides, the substantial question of law arises is:

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1 Whether easement by grant provided in favour of the plaintiffs and defendants insofar as plaint F schedule pathway is liable to be restrained in any manner?

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The dispute, in between the parties, in fact, is confined in the matter of putting up of gates on the eastern

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and western sides of the F schedule way, admittedly given in favour of the plaintiffs and defendants, commonly, pursuant to easement by grant provided in their respective title deeds.

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Initially, the trial court dismissed the suit, since the claim is one for public pathway, for want of proof regarding existence of public pathway, as contended by the plaintiffs. However, in appeal, the appellate court granted reliefs including mandatory injunction to remove the gate installed by the first defendant on the premise that the way in question is one, where all parties perfected right of easement by grant.

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After hearing both sides, it could be gathered that, even though the plaintiffs claimed that, plaint F schedule pathway is a public pathway formed by dedication of the way

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RSA NO. 1283 OF 2014 6

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by its original owner, and thereby, the status of F schedule is that of a public pathway, as of now, the same is not at all proved.

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However, both parties agreed that plaint F schedule way is the way provided for plaintiffs and defendants, by way of easement by grant.

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The learned counsel for the appellants/defendants 2 to 5 submitted that the original first defendant installed gates on both sides of the way only to protect third parties trespass upon the way and the defendants have no objection in the matter of use of the way by all the parties in the lis, provided, gates may be protected and maintained, intact, with liberty to all the parties to use the way freely, without any objection.

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The learned counsel for the other side also submitted that the use of the way may not be obstructed in any manner. These submissions would get support from the available pleadings and evidence.

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Since both parties did not dispute the use of the way in common, by all the parties in the lis, there is no hindrance for all parties in the lis, to use the same

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RSA NO. 1283 OF 2014 7

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independently, without obstruction by any among them. Since it is submitted by the learned counsel for the appellants/ defendants 2 to 5 that the gates were installed only to protect the way in dispute, to avoid entry of third parties and public, the gate can be maintained therein, with a direction to the appellants/defendants 2 to 5, not to disturb the use of way by the parties to the suit, in any manner, by putting up lock and key or otherwise. Holding so, the second relief of mandatory injunction granted by the first appellate court, stands modified as above, while upholding the other reliefs granted by the first appellate court.

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Accordingly, this appeal stands allowed in part, as indicated above.

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Sd/- A. BADHARUDEEN JUDGE

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RSA NO. 1283 OF 2014 8

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APPENDIX OF RSA 1283/2014

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PETITIONERS’ ANNEXURES

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ANNEXURE A1

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TRUE COPY OF THE DEATH CERTIFICATE DATED
21.11.2022 ISSUED BY THE SUB REGISTRAR,
BIRTHS & DEATHS, THIRUVANANTHAPURAM
MUNICIPAL CORPORATION

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RESPONDENTS’ ANNEXURES NIL

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//TRUE COPY//

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PA TO JUDGE

Babu v. Gopinathan.C.

Case brief

What is this about?

What did the court decide?

Babu v. Gopinathan.C.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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