Allowed

Mary Devasia v. Joseph, (Died) (Lhrs Impleaded)

Kerala HC4 Jul 2023RSA/698/2007

Case brief

AI extract

What is this about?

This appeal challenged the dismissal of an injunction suit and a counterclaim regarding a pathway. The High Court set aside the lower courts' reliance on 'clean hands' due to factual inaccuracies and granted a permanent injunction to the plaintiff while dismissing the defendants' counterclaim.

What did the court decide?

Permanent prohibitory injunction restraining respondents from trespassing into plaint schedule items 1 and 2 properties.

Mary Devasia Vs Joseph, (Died) (Lhrs Impleaded) — Property and Title | Kerala HC (2023)

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RSA.Nos.303 & 698 of 2007

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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 MOHAMMED NIAS C.P.

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TUESDAY, THE 4^TH DAY OF JULY 2023 / 13TH ASHADHA, 1945

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RSA NO. 303 OF 2007

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AGAINST THE ORDER/JUDGMENT IN OS 615/1997 OF MUNSIFF COURT, PALA AS 8/2001 OF SUB COURT, PALA

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APPELLANT/APPELLANT/PLAINTIFF/ADDL. APPELLANTS:

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1 JOSEPH, (DIED) (LRS IMPLEADED) S/O.THOMMAN,ELAMBILAKATTU HOUSE, THEKKEPERINGOTTU KAVU KARA,KIDANGOOR VILLAGE,, MEENACHIL TALUK,CHEMPILAVU P.O.

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2 ADDL.MERCY, AGED 78 YEARS W/O.LATE JOSEPH, ELAMBILAKKATTU HOUSE, THEKKEPERINGOTTU KAVU KARA,KIDANGOOR VILLAGE,, MEENACHIL TALUK,CHEMPILAVU P.O., PIN-686 584.

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3 ADDL.SHINAMMA, AGED 54 YEARS D/O.LATE JOSEPH, ELAMBILAKKATTU HOUSE, THEKKEPERINGOTTU KAVU KARA, KIDANGOOR VILLAGE, MEENACHIL TALUK,CHEMPILAVU P.O., PIN-686 584. D/O.LATE JOSEPH, ELAMBILAKKATTU HOUSE, THEKKEPERINGOTTU KAVU KARA, KIDANGOOR VILLAGE, MEENACHIL TALUK,CHEMPILAVU P.O., PIN-686 584.

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4 ADDL.SIBICHAN, S/O.LATE JOSEPH, ELAMBILAKKATTU HOUSE, THEKKEPERINGOTTU KAVU KARA,KIDANGOOR VILLAGE,, MEENACHIL TALUK,CHEMPILAVU P.O., PIN-686 584.

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5 ADDL.SABU, S/O.LATE JOSEPH, ELAMBILAKKATTU HOUSE, THEKKEPERINGOTTU KAVU KARA,KIDANGOOR VILLAGE,, MEENACHIL TALUK,CHEMPILAVU P.O., PIN-686 584. 6 BEENA, D/O.LATE JOSEPH, ELAMBILAKKATTU HOUSE, THEKKEPERINGOTTU KAVU KARA,KIDANGOOR VILLAGE,, MEENACHIL TALUK,CHEMPILAVU P.O., PIN-686 584.

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RSA.Nos.303 & 698 of 2007

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7 ADDL.JOMON, S/O.LATE JOSEPH, ELAMBILAKKATTU HOUSE, THEKKEPERINGOTTU KAVU KARA,KIDANGOOR VILLAGE,, MEENACHIL TALUK,CHEMPILAVU P.O., PIN-686 584. (LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDL.APPELLANTS 2 TO 7 AS PER ORDER DATED 02.12.2019 IN IA.1/2019.)

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

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RESPONDENTS/RESPONDENTS 2 TO 6-2ND DEFENDANT % NOT PARTIES:

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1 MARY DEVAISA, W/O.DEVASIA, ADAPPACHERIL HOUSE,THEKKEPERINGOTTUKAVU KARA,, KIDANGOOR VILLAGE,MEENACHIL TALUK,, CHEMBILAVU P.O. 2 MARY SEBASTIAN, W/O..DO. .DO. 3 SIJO SEBASTIAN, S/O.DEVASIA, .DO. .DO. 4 SIJU SEBASTIAN, (DIED; LRS RECORDED) S/O. .DO. .DO. 5 MANJU (MINOR), D/O. .DO., REPRESENTED BY HER MOTHER AND GUARDIAN,, RESPONDENT NO.1 (RESPONDENTS 1 TO 3 AND 5 ARE RECORDED AS THE LRS OF DECEASED 4TH RESPONDENT AS PER ORDER DATED 6.2.2020 IN IA. 4/2019 BY ADVS. SRI.P.C.HARIDAS M.P.MADHAVANKUTTY(K/296/1998) (ADVOCATE COMMISSIONER)

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13.04.2023, ALONG WITH RSA.698/2007, THE COURT ON 4.7.2023 DELIVERED THE FOLLOWING:

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RSA.Nos.303 & 698 of 2007

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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 MOHAMMED NIAS C.P.

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TUESDAY, THE 4^TH DAY OF JULY 2023 / 13TH ASHADHA, 1945

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RSA NO. 698 OF 2007

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AGAINST THE ORDER/JUDGMENT IN OS 615/1997 OF MUNSIFF COURT, PALA AS 8/2001 OF SUB COURT, PALA

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APPELLANTS/RESPONDENTS 2,4-6/DEFENDANT-LRS OF 1ST DEFENDANT:

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1 MARY DEVASIA W/O.LATE DEVASIA,ADAPPACHERIL HOUSE, THEKKEPERINGOTTUKAVU KARA,, KIDANGOOR VILLAGE, MEENACHIL TALUK,, CHEMPILAVU P.O.

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2 SIJO SEBASTIAN, S/O.LATE DEVASIA ADAPPACHERIL HOUSE, THEKKEPERINGOTTUKAVU KARA,, KIDANGOOR VILLAGE, MEENACHIL TALUK,, CHEMPILAVU P.O. 3 SIJU SEBASTIAN, (DIED) (LRS RECORDED) S/O.LATE DEVASIA,ADAPPACHERIL HOUSE, THEKKEPERINGOTTUKAVU KARA,, KIDANGOOR VILLAGE, MEENACHIL TALUK,, CHEMPILAVU P.O. (APPELLANTS 1,2 AND 4 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 3RD APPELLANT AS PER ORDER DATED 06.02.2020 IN IA.1/2019.)

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4 MANJU, D/O.LATE DEVASIA ADAPPACHERIL HOUSE, THEKKEPERINGOTTUKAVU KARA, KIDANGOORVILLAGE, MEENACHIL TALUK, CHEMPILAVU P.O., (MINOR), REP.BY HER NATURAL GUARDIAN AND MOTHER THE 1ST APPELLANT MARY DEVASIA,W/O.LATE DEVASIA,ADAPPACHERIL HOUSE, THEKKEPERINGOTTUKAVU KARA, KIDANGOORVILLAGE, MEENACHIL TALUK, CHEMPILAVU P.O. BY ADV SRI.P.C.HARIDAS

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RESPONDENTS/APPELLANT/PLAINTIFF:

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1 JOSEPH, (DIED) (LHRS IMPLEADED) S/O.THOMMAN, ELAMBILAKATTU HOUSE, THEKKEPERINGOTTUKAVU KARA,, KIDANGOOR VILLAGE, MEENACHIL TALUK,, CHEMPILAVU P.O.

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RSA.Nos.303 & 698 of 2007

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2 ADDL.MERCY, W/O.LATE JOSEPH,AGED 78 YEARS, ELAMBILAKKATTU HOUSE, THEKKEPERINGOTTUKAVU KARA,, KIDANGOOR VILLAGE, MEENACHIL TALUK,, CHEMPILAVU P.O., PIN-686 584.

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3 ADDL.SHILAMMA, D/O.LATE JOSEPH,AGED 54 YEARS, ELAMBILAKKATTU HOUSE, THEKKEPERINGOTTUKAVU KARA,, KIDANGOOR VILLAGE, MEENACHIL TALUK,, CHEMPILAVU P.O., PIN-686 584.

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4 ADDL.SIBICHAN, S/O.LATE JOSEPH, ELAMBILAKKATTU HOUSE, THEKKEPERINGOTTUKAVU KARA,, KIDANGOOR VILLAGE, MEENACHIL TALUK,, CHEMPILAVU P.O., PIN-686 584.

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5 ADDL.SABU, S/O.LATE JOSEPH, ELAMBILAKKATTU HOUSE, THEKKEPERINGOTTUKAVU KARA,, KIDANGOOR VILLAGE, MEENACHIL TALUK,, CHEMPILAVU P.O., PIN-686 584.

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6 ADDL.BEENA, D/O.LATE JOSEPH, ELAMBILAKKATTU HOUSE, THEKKEPERINGOTTUKAVU KARA,, KIDANGOOR VILLAGE, MEENACHIL TALUK,, CHEMPILAVU P.O., PIN-686 584.

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7 ADDL.JOMON, S/O.LATE JOSEPH, ELAMBILAKKATTU HOUSE, THEKKEPERINGOTTUKAVU KARA,, KIDANGOOR VILLAGE, MEENACHIL TALUK,, CHEMPILAVU P.O., PIN-686 584. (RESPONDENTS 2 TO 7 ARE IMPLEADED AS ADDL.RESPONDENTS 2 TO 7 AS PER ORDER DATED 06.02.2020 IN IA.3/2019.) BY ADVS. AJEESH K.SASI MATHEW JOHN (K) M.P.MADHAVANKUTTY(Advocate Commissioner)

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13.04.2023, ALONG WITH RSA.303/2007, THE COURT ON 04.07.2023 DELIVERED THE FOLLOWING:

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RSA.Nos.303 & 698 of 2007

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MOHAMMED NIAS C.P., J

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RSA Nos.303 and 698 of 2007

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Dated this the 4^th day of July, 2023

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JUDGMENT

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The appellant in RSA No.303/2007 is the plaintiff in O.S.No.615/1997 on the files of the Munsiff's Court, Pala, filed seeking a prohibitory injunction against the first and the second defendants. The plaintiff contended that plaint schedule 1 and 2 properties exclusively belong to him as per gift deeds Nos.577/71 and 1162/72 of SRO, Kidangoor, and that the properties are lying within well-defined boundaries. An extent of 5 cents of the property lying on the south-western corner of the entire property belonging to the plaintiff was sold to the second defendant in 1997. This property is scheduled as plaint schedule item No.3. The defendants, who are husband and wife, are residing in the said property. They are using a pathway leading to Cherpunkal – Chempilavu public road on the western side of their property for the ingress and egress to item No.3. Since the defendants were causing mischief in the property belonging to the plaintiff by cutting and removing branches of rubber trees and by grazing animals, they constructed a barbed wire fence on the western boundary of item No.1 property to separate the same from item No.3. The defendants are now attempting to cut open a pathway through the plaint schedule property on the pretext that the said

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RSA.Nos.303 & 698 of 2007

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pathway is essential for taking water from the nearby property. Since the defendants have no right over the plaint schedule properties, the plaintiff prayed for a decree restraining the defendants from trespassing into the plaint schedule property or committing any waste therein.

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The defendants (the appellants in RSA No.698/2007) resisted the suit and raised a counterclaim claiming a right of way through plaint schedule items Nos. 1 and 2. They denied the plaint averment that there is a pathway towards the western direction for ingress and egress of the defendants and contended that the property situated on the western side of item No.3 property is lying at a height of 6 ft. and there exists a kayyala and a barbed wire fence separating the defendants' property and the property on the western side. They claimed that they have a right to use the pathway through the property belonging to the plaintiff for their ingress and egress to Cherpunkal – Kozhuvanal road, which lies on the eastern side of the property. They asserted that the counterclaim scheduled pathway is the only access for the defendants towards item No.3 property. The said pathway is having a width of 3 ft., and the same goes through plaint schedule items Nos.1 and 2. Since the plaintiff has no right to cause obstruction to the user of the said way, they claimed a counterclaim for a declaration and mandatory injunction in respect of the counterclaim scheduled pathway.

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The trial court raised issues regarding the entitlement of the plaintiff for a decree of injunction and also whether the counterclaim can be allowed by declaring a right of easement of necessity over the counterclaim scheduled way, and whether the defendants were entitled to a mandatory injunction as sought

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RSA.Nos.303 & 698 of 2007

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for. Before the trial court, PWs 1 and 2 were examined, and Exts.A1 to A4 were marked on the side of the plaintiff. DWs 1 to 4 were examined on the side of the defendants, and Exts.C1 commission report and C1(a) sketch were also marked. The trial court, after considering the issues, found that the defendants have access to Cherpunkal-Kozhuvanal road through a pathway on the southern side of item No.3 and that the defendants had no necessity to use the counterclaim scheduled property for their ingress and egress to plaint item 3. As the defendants failed to establish that they have got a right of easement of necessity to plaint items 1 and 2, the counterclaim was dismissed. As regards the entitlement of the plaintiff, it was found that he did not approach the court with clean hands and had suppressed material facts before the court, and therefore, notwithstanding the findings against the defendants as stated above, the suit was dismissed.

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The plaintiff filed A.S.No.8/2001 before the Sub Court, Pala, and the defendants also filed a cross-appeal. After considering the appeal and crossappeal, the appellate court reiterated the trial court's finding that the plaintiff did not approach the court with clean hands and was not entitled to a discretionary relief of injunction. The appellate court also found that the defendants had failed to prove the identity of the disputed pathway through the plaint schedule properties and that they have no right of way through the plaint schedule property. The appeal and the cross-appeal were dismissed, confirming the judgment and decree of the trial court. Against the appellate judgment, the plaintiff filed RSA No.303/2007, and the defendants, RSA No.698/2007.

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RSA.Nos.303 & 698 of 2007

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Upon admission of the above appeal, the following substantial question of law was framed

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“Whether the courts below were correct in holding that appellant suppressed the claim of the respondents regarding the way when in paragraph 6 of the plaint it was specifically pleaded and, if so, whether the non-granting of a decree for an injunction after finding that respondents are not entitled to a way is sustainable?”

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Heard Sri. Mathew John, the learned counsel for the appellant in RSA No.303/2007, and Sri. P.C. Haridas, the learned counsel appearing for the appellants in RSA No.698/2007.

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On going through the judgments of the courts below with the records, it is clear that the reason for dismissing the suit of the plaintiff is on the solitary ground of not approaching the court with clean hands. The reason the courts below held so was that the suit was instituted with a specific cause of action that the defendants were attempting to trespass upon the plaint schedule item No.1 and that they were in the habit of grazing their cattle and collecting firewood from plaint item No.1, in spite of the resistance from the plaintiff which led to the plaintiff putting up a barbed wire fence in September 1997 at the boundary between plaint item Nos.1 and 3. The plaintiff, as PW1, stated that there was a dispute with regard to the pathway to the public road on the eastern side, and the said issue was taken before the police. The plaintiff also took out a commission on the date of the suit without mentioning anything with regard to the existence or non-existence of a pathway through his property, and the suit was filed on

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RSA.Nos.303 & 698 of 2007

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19.11.1997 with an alleged cause of action of 17.11.1997 and considering the fact that there was already a dispute with regard to the pathway through the property of the plaintiff, the trial court found that the suit was instituted without mentioning any of these aspects and the same disentitled the plaintiff from getting any relief. Notably, the defendant's case was found to be unacceptable, and their counterclaim was also dismissed. Thus, even though it was found that the defendants did not have a right to use a way through plaint schedule properties, the plaintiff was not granted a decree.

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Before me, the learned counsel for the appellant Sri. Mathew John argues that the reason both the courts dismissed the suit is factually wrong, as in the plaint, the plaintiff had clearly mentioned the dispute with respect to the pathway in paragraph-6. The said pleading is extracted as ground No.4 in the appeal memorandum. It can be seen from a reading of the plaint that the plaintiff pleaded about the attempts of the defendants to establish their right of easement by necessity; therefore, the reason given by both the courts cannot be accepted for non-suiting the plaintiff. It is also relevant to note that an advocate commissioner was deputed in the lower appellate court in which he filed Exts.C2 and C2(a) plan and report stating that there was no pathway, as alleged by the defendants, in existence through the plaint schedule items 1 and 2 for reaching the plaint schedule item 3. Under normal circumstances, the courts below ought to have granted a decree to the plaintiff, more so after holding against the entitlement of the defendants for a right of a way as alleged in the counterclaim.

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True, the commission report and the sketch mentioned above did not exactly show the identity or lie of the properties or the ways in dispute. In such

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RSA.Nos.303 & 698 of 2007

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circumstances, this Court appointed an advocate commissioner since the core dispute was the existence or otherwise of an alternative pathway alleged to be used by the appellants in RSA No.698/2007. He has filed two reports before this Court, which also mention a way which the defendants can use. The reports of the commissioner also support the concurrent findings of the courts below and the non-entitlement of the defendants for a right of way as claimed in the counterclaim.

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It is trite that in a claim of right of way as an easement of necessity, it must be shown that there was no other access at all to his property. The test is not of convenience but of absolute necessity. In other words, it must be shown by a person that without the way he claims, there is no other alternative pathway to reach his property and that the said easement is needed absolutely for the enjoyment of the property. The commission reports, as stated above, particularly the one filed before this Court, clearly showed that there is access that the defendants can use, may be after effecting some repairs. In such circumstances, the concurrent findings of the courts below against the defendants have to be upheld, and I do so. Resultantly, RSA No.698/2007 is dismissed.

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Coming to RSA No.303/2007, as stated above, the only reason for nonsuiting the plaintiff was on the basis of the finding that he did not approach the court with clean hands. As held above, the said finding is factually inaccurate as there was pleading in paragraph 6 of the plaint, as mentioned above. The question of law, in such circumstances, has to be held in favour of the appellant. The judgment and decree of the courts below, insofar as the same dismissed OS 615/1997, are set aside. The plaintiff is granted a decree of permanent

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RSA.Nos.303 & 698 of 2007

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prohibitory injunction restraining the respondents herein/defendants/appellants in RSA 698/2007 from trespassing into plaint schedule item Nos.1 and 2 properties.

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Accordingly, RSA No.303/2007 is allowed, and the suit is decreed as prayed for. RSA No.698/2007 is dismissed.

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Sd/-

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MOHAMMED NIAS C.P., JUDGE

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okb/

Mary Devasia v. Joseph, (Died) (Lhrs Impleaded)

Case brief

What is this about?

What did the court decide?

Mary Devasia v. Joseph, (Died) (Lhrs Impleaded)

Case brief

What is this about?

What did the court decide?

What the court decided

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