Kerala High Court
Padmanabhan vs Thiruvoth Tharemmal ... on 20 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
Wednesday, the 20th day of October 2021 / 28th Aswina, 1943
IA.NO.1/2021 IN RSA NO. 678 OF 2021
AS 22/2019 OF SUB COURT, VADAKARA
OS 139/2015 OF MUNSIFF COURT, VADAKARA
APPLICANTS/APPELLANTS IN RSA:
1. PADMANABHAN, S/O. KANNAN,AGED 57 YEARS, THAZHE AYANTHODI HOUSE,
PUTHUPPANAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT,
PIN-673105.
2. BABU @ JANARDHANAN, S/O. KANNAN,AGED 37 YEARS, DRIVER, THAZHE
AYANTHODI HOUSE, PUTHUPPANAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE
DISTRICT, PIN-673105.
3. JANAKI, W/O. KANNAN, AGED 64 YEARS, KALLAKKOTH HOUSE, IRINGAL AMSOM
DESOM, IRINGAL POST, KOYILANDY TALUK, KOZHIKODE DISTRICT,
PIN-673521.
4. LAKSHMI, W/O. BALAN, AGED 62 YEARS,KUZHICHALIL HOUSE, PANIKKOTTI,
KEEZHAL POST, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673541.
5. KARTHYAYANI, W/O.CHATHU, AGED 60 YEARS, KOYILOTH MEETHAL HOUSE,
PUTHUPPANAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT,
PIN-673105.
6. NALINI, W/O.BHASKARAN, KAYYIL HOUSE, KARIMBANAPALAM, PUTHUPPANAM
AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673105.
7. KAMALA, W/O. BABU, THATTARITHAZHA KUNIYIL HOUSE, MEMUNDA AMSOM
DESOM, MEMUNDA POST, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673104.
8. RADHA, W/O.BALAKRISHNAN, VANNAM KANDIYIL HOUSE, PUTHUPPANAM AMSOM
DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673105.
9. SUSHEELA, W/O.BABU, KALLARAKKANDI HOUSE, PUTHUPPANAM AMSOM DESOM,
PUTHUPPANAM POST, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN-673105.
10. VANAJA, D/O.KANNAN, THAZHA AYANTHOLI HOUSE,AGED 43 YEARS,
PUTHUPPANAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT,
PIN-673105.
11. PADMINI, D/O.KANNAN, THAZHA AYANTHOLI HOUSE,AGED 40 YEARS,
PUTHUPPANAM AMSOM DESOM, PUTHUPPANAM P.O., VATAKARA TALUK, KOZHIKODE
DISTRICT, PIN-673105.
12. SOUMINI, D/O.KANNAN, THAZHA AYANTHOLI HOUSE, AGED 37 YEARS,
PUTHUPPANAM AMSOM DESOM, PUTHUPPANAM POST, VATAKARA TALUK, KOZHIKODE
DISTRICT, PIN-673105.
RESPONDENT/RESPONDENT IN RSA:
THIRUVOTH THAREMMAL BALAKRISHNAN, S/O. CHATHU,AGED 59 YEARS,
MEMUNDA AMSOM, KUTTOTH DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT,
PIN-673104.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to stay the operation
of the judgment dated 09.04.2021 in AS.No.22 of 2019 on the file of the
Subordinate Judge's Court,Vatakara and of all proceedings in execution of
the decree in OS.No.139 of 2015 on the file of the Munsiff's Court,
Vatakara, pending disposal of the above Regular 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.P.B.KRISHNAN, P.B.SUBRAMANYAN, SABU GEORGE, MANU VYASAN PETER,
Advocates for the petitioners, the court passed the following:
N. ANIL KUMAR, J.
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RSA No.678 of 2021
---------------------------------------------
Dated this the 20th day of October, 2021
ORDER
Heard the learned Senior Counsel for the appellants
an the learned counsel for the appellant.
This Regular Second Appeal is admitted on the
following substantial questions of law.
(1)Whether the lower appellate court was justified
in granting a declaration of right of easement by
necessity and quasi easement in respect of the plaint B
schedule property ignoring the existence of an alternate
way?
(2) Has not the lower appellate court erred in
declaring the right of quasi-easement over the plaint B
schedule property, when the plaintiff has not adduced
any evidence to prove the apparent and continuous user
of the same as a pathway prior to the severance of the
dominant tenement from the remaining properties owned
RSA No.678 of 2021
..2..
by the defendants?
(3) Whether the lower appellate court is justified in
declaring the rights of easement by necessity and quasi-
easement in respect of plaint B schedule pathway
ignoring the lack of absolute necessity and the
requirements of the same as contemplated under Section
13 of the Indian Easements Act, 1882?
Issue notice.
I.A.No.1/2021
Operation of the judgment dated 09.04.2021 in
A.S.No.22/2019 on the file of the Sub Court, Vatakara and
execution of proceedings in O.S.No.139/2015 on the file
of the Munsiff Court, Vatakara stand stayed for a period
of three months.
Sd/-
N. ANIL KUMAR, JUDGE
kkj
20-10-2021 /True Copy/ Assistant Registrar
