Siby Mathew vs Mathai Varkey
2021 Latest Caselaw 20687 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                   THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
          Tuesday, the 5th day of October 2021 / 13th Aswina, 1943
                    IA.NO.1/2021 IN RSA NO. 333 OF 2021
             OS 221/2014 OF ADDITIONAL MUNSIFF COURT ,KOTTAYAM
           AS 164/2015 OF IV ADDITIONAL DISTRICT COURT, KOTTAYAM
PETITIONER/APPELLANT:

     SIBY MATHEW, AGED 49 YEARS, S/O.MATHAI MATHEW, VADAKEPULPRAYIL
     HOUSE, MANJOOR P.O., KOTTAYAM DISTRICT, PIN-686 603.

RESPONDENT/IST RESPONDENT:

     MATHAI VARKEY, AGED 82 YEARS, S/O.MATHAI, VADAKKE PULPRAYIL HOUSE,
     MANJOOR P.O., REPRESENTED BY HIS POWER OF ATTORNEY HOLDER BABU
     JOESPH, AGED 50 YEARS,S/O.JOSEPH,PANNIKKOTTIL HOUSE, PERUMBADAVAM
     P.O., VAIKOM, KOTTAYAM DISTRICT PIN 686 665.

     Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to restrain the
respondent herein by an order of injunction from altering,changing or
committing any act over counter claim C schedule property which affects
the right of appellant's user thereof pending disposal of the above
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.S.VINOD BHAT, ANAGHA LAKSHMY RAMAN, GREESHMA CHANDRIKA R.,
Advocates for the petitioner and of SRI.ROJO JOSEPH THURUTHIPARA, Advocate
for the respondent, the court passed the following:
                         N.ANIL KUMAR, J.
                         ------------------------
                         RSA 333 of 2021
                    ----------------------------------
            Dated, this the 5th day of October, 2021


                          ORDER

Heard the learned counsel for the appellant and the

respondents.

2. This appeal is admitted on the following

substantial questions of law.

"(a) Is not the counter claim C schedule property (pathway) deemed to pass as per Section 19 of Indian Easement Act, 1882 in favour of the appellant who enjoys the dominant heritage on the strength of Ext.A2 deed of settlement, as it is settled law that easement runs with the land?

(b) Were not the courts below, in discharge of their duties, obligated to consider the evidence on record in toto and has not the non-consideration of such evidence resulted in the judgment/decree being against law?

RSA 333/2021

(c) Is there any relevance to Ext.A5/A7 in the absence of compliance to Section 145 of the Indian Evidence Act?"

Issue notice.

IA No.1/2021

3. Heard the learned counsel for the petitioner/appellant and the learned counsel for the respondent/1st respondent.

Both the petitioner and the respondent are directed to maintain status quo as reported by the Commissioner in Ext.C4, for a period of three months.

Sd/-

N.ANIL KUMAR JUDGE jg

05-10-2021 /True Copy/ Assistant Registrar