Kerala High Court
Sajin Sivan vs Unknown on 18 March, 2021
RSA 205/2021 1/5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Present:
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
Thursday,the 18th day of March 2021/27th Phalguna, 1942
IA/1/2021 IN RSA/205/2021
AS No.63/2018 of the ADDITIONAL SESSIONS COURT - III, ALAPPUZHA
For information purpose only
OS No.691/2012 of the PRINCIPAL MUNSIFF,ALAPPUZHA
PETITIONER/APPELLANTS/APPELLANTS/DEFENDANTS 1 & 2:
1. SAJIN SIVAN,AGED 42,
S/O. SIVANANDAN, GOSALAVELI, THIRUVAMPADY P.O., VADACKAL MURI,
ALAPPUZHA WEST VILLAGE, ALAPPUZHA.
2. SAJU SIVAN,AGED 36,
S/O. SIVANANDAN, GOSALAVELI, THIRUVAMPADY P.O., VADACKAL MURI,
ALAPPUZHA WEST VILLAGE, ALAPPUZHA
RESPONDENTS/RESPONDENTS/RESPONDENTS/PLAINTIFFS/ADDITIONAL 3RD
DEFENDANT:
1. K.GEORGE MATHEW,AGED 63,
S/O.K.V MATHEW, BLISS COTTAGE, RAM TEMPLE LANE, BAZAR P.O.,
ALAPPUZHA MURI, ALAPPUZHA WEST VILLAGE, ALAPPUZHA-688 012
2. K.JOHN MATHEW,AGED 60,
S/O. K.V.MATHEW, PARK SIDE, KANDATHIL, ALAPPUZHA HPO,
ALAPPUZHA MURI, ALAPPUZHA WEST VILLAGE, ALAPPUZHA-688 001
3. PRAMOD.S.,AGED 55,
S/O. SOOLAPANI,SUSEELA NIVAS, ERAVUKAD, ALAPPUZHA WEST
VILLAGE,ALAPPUZHA-688 004
Application praying that in the circumstances stated in the affidavit filed therewith the
High Court be pleased to stay execution of the decree in OS.No.691/2012 dated 26.02.2018
on the files of the Principal Munsiff, Alappuzha which was confirmed in the judgment and
decree in AS.No.63/2018 dated 30.09.2020, pending disposal of the second appeal.
This application coming on for orders upon perusing the application and the affidavit
filed in support thereof, and upon hearing the arguments of M/S JOMY GEORGE, BENNY
M.J, CHITRA N. DAS, DEEPAK MOHAN, GEORGE J MOOLAMKUNNAM, RISHAB S,
R.PADMARAJ, R.AJITH KUMAR, Advocates for the petitioner, the court passed the
RSA 205/2021 2/5
following:
For information purpose only
N. ANIL KUMAR, J.
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R.S.A.No.205 of 2021
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Dated this the 18th day of March, 2021
For information purpose only
ORDER
Heard the learned counsel for the appellants.
2. This RSA is admitted on the following
substantial questions of law.
(i) Whether the two courts below failed to
appreciate the well-established legal
principle that when there is a unity of
possession, there is no dominant heritage
and servivant heritage and so no easement
by prescription arise?
(ii) Whether a person can be said to establish a
right of easement when it has come out in
evidence that during the prescriptive period,
the previous owner has exercised the right,
not as a right over the property of another,
but as a right over the property which he
considered to belong to himself?
RSA205/ 2021
..2..
(iii) Whether the two courts below went wrong in
For information
decreeing purposeinjunction
the suit for mandatory only
particularly when the defendants 1 and 2
have been in possesion of the suit property on
the date of suit in continuation of their
predecessor-in-interest?
(iv) Whether the two courts below failed to
consider the validity of Exhibit A2 settlement
deed when there is a specific denial on the
part of the defendants 1 and 2 and
erroneously granted a decree for both
permanent and mandatory injunctions
without seeking appropriate relief as
contemplated under the Specific Relief Act.
Issue notice.
Post after summer vacation.
I.A.No.1/2021
Heard the learned counsel for the
RSA205/ 2021
..3..
petitioners/appellants.
For information purpose only
The operation of the judgment and decree in
O.S.No.691/2012 dated 26.02.2008 on the file of the
Principal Munsiff Court, Alappuzha, which was confirmed
by the judgment and decree in A.S.No.63/2018 dated
30.09.2020 stands stayed for a period of three months.
Sd/-
N. ANIL KUMAR,
JUDGE
kkj
/true copy/ Sd/- ASSISTANT REGISTRAR
