Kerala High Court
Marykutty vs P.B.Reji on 25 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
Thursday, the 25th day of November 2021 / 4th Agrahayana, 1943
IA.NO.1/2021 IN RSA NO. 766 OF 2021
AS 117/2019 OF ADDITIONAL DISTRICT COURT I,KOTTAYAM
OS 521/2010 OF PRINCIPAL MUNSIFF COURT , KOTTAYAM
PETITIONER/APPELLANT IN RSA/RESPONDENT IN AS/DEFENDANT IN OS:
MARYKUTTY, AGED 74 YEARS, W/O ULAHANNAN, ULLIRUPPIL VEEDU, ANICKADU
KARA, ANICKADU P.O, ANICKADU VILLAGE, KOTTAYAM TALUK, KOTTAYAM
DISTRICT, PIN-686503.
RESPONDENT/RESPONDENT IN RSA/APPELLANT IN AS/PLAINTIFF IN OS:
P.B.REJI, S/O BHASKARAN, FORMERLY EMPLOYED IN THE SULTANATE OF OMAN,
AND PRESENTLY RESIDING AT THUNIYAMPRAYIL HOUSE, ANICKADU KARA,
ANICKADU P.O, ANICKADU VILLAGE, KOTTAYAM, PIN-686503.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to stay the execution
and operation of judgment and decree dated 26.08.2021 in AS.No.117 of 2019
of the Court of the Additional District Judge-I,Kottayam arising from the
judgment and decree dated 19.06.2019 in OS.No.521 of 2010 of the Court of
the Principle Munsiff,Kottayam.
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.ABRAHAM GEORGE JACOB, C.MURALIKRISHNAN (PAYYANUR) & AKSHAY R.,
Advocates for the petitioner, the court passed the following:
N. ANIL KUMAR, J.
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RSA No. 766 of 2021
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Dated this the 25th day of November, 2021
ORDER
Heard the learned counsel for the appellant.
2. This RSA is admitted on the following
substantial questions of law;
(1) What exactly is the width of the
plaint schedule item No.2 pathway with
reference to title, whereby the grant is
created?
(2) Where a pathway is claimed by way of
easement by grant and where the easement by
grant has not been defined in accordance
with the title deed governing the parties,
has not the first appellate court erred in
law by providing a road based on the
commission report, though the plaintiff
failed to adduce evidence touching the
RSA No. 766 of 2021
..2..
intention of the parties and width or the
purpose, for which easement was originally
granted by the granter?
(3) In a suit for injunction simplicitor,
has not the first appellate court erred in
law by granting a wide road without a
specific plea for declaration of easement
by grant?
(4) Was not the first appellate court
wrong in granting an easement over a
pathway, which does not tally with the
pathway described by the plaintiff in his
plaint?
Issue notice.
IA No. 1 of 2021
Heard the learned counsel for the
petitioner/appellant.
2. Execution and operation of the judgment and
decree dated 26.08.2021 in AS No. 117 of 2019
on the file of the Additional District
RSA No. 766 of 2021
..3..
Court-I, Kottayam, arising from the judgment
and decree dated 19.06.2019 in OS No. 521 of
2010 on the file of the Principal Munsiff
Court, Kottayam, stand stayed for a period of
three months.
Sd/-
N. ANIL KUMAR
JUDGE
bka/25.11.2021
25-11-2021 /True Copy/ Assistant Registrar
