K.M.Gopalakrishnan vs Jose Francis Mannully
2021 Latest Caselaw 21346 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM


                                       PRESENT


                  THE HONOURABLE MR.JUSTICE N.ANIL KUMAR


                           th
          Friday, the 29        day of October 2021/7th Karthika, 1943


                    IA.NO.1/2021 IN RSA NO. 704 OF 2021


                    AS 108/2016 OF SUB COURT, CHERTHALA


             OS 399/2013 OF PRINCIPAL MUNSIFF COURT, CHERTHALA


PETITIONER/APPELLANT/APPELLANT/PLAINTIFF:


     K.M.GOPALAKRISHNAN, S/O MADHAVAN, AGED 73 YEARS, KUMBAYIL HOUSE,
     KELAMANGALAM BHAGAM, CHENNAM PALLIPPURAM,PALLIPPURAM VILLAGE.


RESPONDENTS/RESPONDENTS/RESPONDENTS/DEFENDANTS:


  1. JOSE FRANCIS, MANNULLY, S/O MANULLY FRANCIS, AGED 65
     YEARS, THOTTAKUNNATH, KADVANTHARA DESAM, ELAMKULAM VILLAGE,
     KANAYANNOOR THALUK-682 020.
  2. JOSE, S/O THARIYATH VARKEY, AGED 75 YEARS, KANDAKADAVIL, KALLARAKKAL
     KADAVIL, CHENNAM PALLIPPURAM MURI, PALLIPPURAM VILLAGE. 688 541.


     Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to stay the operation
of judgment and decree passed in AS.NO.108/2016 in the files of Sub
Court,Cherthala which was the appeal against judgment and decree in
OS.No.399/2013 of Principal Munsiff Court,Cherthala.


     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.T.JAYAKRISHNAN & R.KRISHNAKUMAR (CHERTHALA), Advocates for the
petitioner and of SRI.LAL K.JOSEPH, Advocate for the first respondent
(caveator), the court passed the following:
                 N. ANIL KUMAR, J.
    -----------------------------------------
               RSA No. 704 of 2021
    -----------------------------------------
     Dated this the 29th day of October, 2021


                             ORDER

Heard the learned counsel for the appellant

and the learned counsel for the 1st respondent.

2. This RSA is admitted on the following

substantial questions of law;

(1) Is not the finding that "continuous

user" can arise only if a party uses a

pathway daily as in case of residential

plot and not in a case of occasional user

to "agricultural land" for getting

prescriptive easement right of way

declared?

(2) Is not the user of predecessor in

interest be tacked by a plaintiff, who

claims prescriptive easement right of way

for satisfying 20 years as contemplated in

Easements Act?

(3) Is not a property owner entitled to RSA No. 704 of 2021

..2..

reach his plot through tough terrain even

if his claim is prescriptive easement right

of way and not easement by necessity?

Issue notice to the 2nd respondent.

IA No. 1 of 2021

Heard the learned counsel for the

petitioner/appellant and the learned counsel

for the 1st respondent/1st respondent.

2. Operation of the judgment and decree in AS No.

108 of 2016 on the file of the Sub Court,

Cherthala on appeal against the judgment and

decree in OS No. 399 of 2013 on the file of

the Principal Munsiff Court, Cherthala, stands

stayed for a period of three months.

Sd/-

N. ANIL KUMAR JUDGE bka/29.10.2021

29-10-2021 /True Copy/ Assistant Registrar