Anthony @ Johny vs Sadhanandhan
2021 Latest Caselaw 1419 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

          THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

THURSDAY, THE 14TH DAY OF JANUARY 2021/ 24TH POUSHA, 1942

                    RSA.No.768 OF 2020

       AGAINST THE DECREE & JUDGMENT IN AS 49/2015
 DATED 06-04-2019 OF PRINCIPAL SUB COURT, IRINJALAKUDA

    OS 371/2013 DATED 13-02-2015 OF MUNSIFF'S COURT,
                       CHALAKUDY


APPELLANTS/APPELLANTS/PLAINTIFFS:

     1     ANTHONY @ JOHNY,
           AGED 53 YEARS,
           S/O.MANDI OUSEPH,
           METTIPADAM DESOM, KODASSERY VILLAGE,
           CHALAKUDY TALUK.

     2     ANNIE,
           AGED 48 YEARS,
           W/O.ANTHONY @ JOHNY,
           METTIPADAM DESOM, KODASSERY VILLAGE,
           CHALAKUDY TALUK.

           BY ADVS.
           SRI.K.JAYAKUMAR (SR.)
           SRI.P.B.KRISHNAN
           SRI.SABU GEORGE
           SMT.B.ANUSREE
           SRI.MANU VYASAN PETER
           SRI.P.B.SUBRAMANYAN

RESPONDENTS/RESPONDENTS/DEFENDANTS:

     1     SADHANANDHAN,
           AGED 50,
           S/O.CHILLELIPARAMBIL PARAMU, METTIPADAM DESOM,
           KODASSERY VILLAGE, CHALAKUDY TALUK,
           PIN - 680 721.
 RSA.No.768 OF 2020

                            ..2..

      2      RAJAN,
             AGED 48,
             S/O.CHILLELIPARAMBIL PARAMU,
             METTIPADAM DESOM, KODASSERY VILLAGE,
             CHALAKUDY TALUK, PIN - 680 721.

      3      VIJAYAN,
             AGED 57,
             S/O.CHILLELIPARAMBIL KRISHNANKUTTY,
             METTIPADAM DESOM, KODASSERY VILLAGE,
             CHALAKUDY TALUK, PIN - 680 721.

      4      SATHOSH,
             AGED 42,
             S/O.CHILLELIPARAMBIL THEYYANKUTTY,
             METTIPADAM DESOM, KODASSERY VILLAGE,
             CHALAKUDY TALUK, PIN - 680 721.


     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 13-01-2021, THE COURT ON 14-01-2021 DELIVERED THE
FOLLOWING:
 RSA.No.768 OF 2020

                              ..3..



                          JUDGMENT

The appellants are the plaintiffs and the respondents

are the defendants in O.S.No.371/2013 of the Munsiff's

Court, Chalakudy (hereinafter referred to as 'the trial

court'). The parties are, for the sake of convenience,

referred to as plaintiffs and defendants according to their

status in the trial court unless otherwise stated.

2. The suit is for permanent prohibitory injunction.

The trial court framed the following issues for

determination:-

1) Whether the plaintiffs have any right to

use the plaint D schedule way?

2) Whether the plaintiffs are entitled to

get a decree of permanent prohibitory

injunction as prayed for?

3) Reliefs and costs.

3. The trial court recorded the oral evidence of RSA.No.768 OF 2020

..4..

PWs.1 and 2 and marked Exts.A1 to A3 on the side of the

plaintiffs. DW1 was examined and marked Exts.B1 to B3

on the side of the defendants. Exts.C1 and C1(a) were

marked as Court Exhibits.

4. The trial court on appreciation of the evidence

dismissed the suit. Challenging the decree of the trial

court, the plaintiffs filed the first appeal before the Sub

Court, Irinjalakuda (hereinafter referred to as 'the first

appellate court') as A.S.No.49/2015 and the first appellate

court dismissed the appeal confirming the judgment and

decree of the trial court.

5. The case of the plaintiffs in brief is that the

plaintiffs obtained plaint A schedule property by virtue of a

registered sale deed. The predecessor of the plaintiffs

obtained the said property along with a way from the

southern PWD road which is B schedule property. It is

stated that the plaintiffs have got right of easement by RSA.No.768 OF 2020

..5..

grant over plaint B schedule property. The defendants are

residing on the northern side of plaint A schedule

property. Subsequently, the predecessor of the defendants

has purchased the property in continuation to plaint B

schedule property and the same is shown as plaint C

schedule in the plaint. The plaint B and C schedule

properties are lying contiguously and the same is

described as plaint D schedule property. Claiming that the

defendants are causing obstruction to the plaint D

schedule pathway, the plaintiffs filed the present suit for

injunction simpliciter restraining the defendants from

causing any obstruction to plaint D schedule pathway.

6. The defendants filed written statement denying

the allegations contained in the plaint particularly denying

the easement right claimed by the plaintiffs over the D

schedule pathway. They also denied the allegation of

obstruction caused in the plaint D schedule pathway. RSA.No.768 OF 2020

..6..

7. Challenging the concurrent findings of the two

courts below, the plaintiffs are before this Court in this

RSA.

8. Heard Sri.S.V.Balakrishna Iyer, the learned

Senior Counsel for the appellants.

9. The learned Senior Counsel for the appellants

contended that D schedule is a pathway which was

acquired by the predecessor-in-interest of the plaintiffs as

a way being used by the plaintiffs' predecessor. It was

further submitted that the right of the plaintiffs to have

easement by grant over plaint B schedule property was

established in evidence by virtue of Exts.A1 to A3

registered documents.

10. Both the trial court as well as the appellate

court entered a finding that on the south of the property

sold to the plaintiffs, there is no way as contended by the

plaintiffs. Thus, it was held that the description contained RSA.No.768 OF 2020

..7..

in Ext.A1 showing a right of way is incorrect. Further, it

was concurrently held that the property of the

predecessor of the plaintiffs as per Ext.A2 does not show

the plaint D schedule way on the southern side. In this

connection, the following facts are relevant. 0.29 ares of

property was purchased by several property owners on

the western side as per Ext.A3. Ext.B1 and Ext.A3 are one

and the same. The 4th defendant and others had

purchased the property on the western side of 0.29 ares

of property as per Ext.B2 for providing a right of way

having more width to their properties. Ext.B3 is the title

deed of the property on the northern side of the property

owned by the predecessor-in-interest of the plaintiffs. In

the light of the above facts and evidence, both the trial

court and the appellate court entered a finding that the

plaintiffs are not entitled to get easement by grant over

the plaint D schedule way mainly for the reason that the RSA.No.768 OF 2020

..8..

predecessor in interest of the plaintiffs had no right to

grant a way on the western side of plaint A schedule

property. Added to this, property covered by Ext.B2 was

purchased by the 4th defendant and some others for

providing a way to their properties and the plaintiffs have

absolutely no right over the same. In view of the

evidence, both the trial court and the appellant court

cannot be faulted to hold that plaintiffs' predecessor had

no right over the properties covered by Exts.B1 and B2

and the plaintiffs had no easement right by grant over the

plaint D schedule way.

11. More importantly, the plaintiffs filed the suit for

injunction simpliciter restraining the defendants from

interfering with the use of plaint D schedule way. The

defendants entered appearance and filed a written

statement disputing the right of easement claimed. When

there is a denial on the part of the defendants regarding RSA.No.768 OF 2020

..9..

the grant claimed by the plaintiffs, a suit for injunction

simpliciter without claiming appropriate reliefs for

declaring their right over the D schedule way is legally

impermissible. On the facts of the case, such a relief is

absolutely essential. On this ground also, the suit fails.

12. On an appreciation of the impugned judgments

and materials on record, this Court is of the definite

opinion that there are no questions of law involved in this

appeal, much less any substantial questions of law.

Resultantly, the R.S.A. stands dismissed. No order as

to costs.

Sd/-

N.ANIL KUMAR, JUDGE skj