Saradamma,Died vs Lekshmi
2022 Latest Caselaw 2965 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MRS. JUSTICE SHIRCY V.
     WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943
                         RSA NO. 238 OF 2019
   AGAINST THE JUDGMENT & DECREE DTD. 22.01.2005 IN OS 79/1999 OF
                      MUNSIFF COURT, KAYAMKULAM
   AGAINST THE JUDGMENT & DECREE DTD. 29.11.2010 IN AS 57/2005 OF
              ADDITIONAL DISTRICT COURT-I, MAVELIKKARA
APPELLANTS/1ST RESPONDENT/1ST PLAINTIFF:

           SARADAMMA, 79 YEARS,             (DIED)
           D/O.KARTHIYANI AMMA, PULLOLIL VEEDU, DESATHINAKAM MURI,
           KRISHNAPURAM VILLAGE.

   ADDL.   GOPAKUMAR
 APPELLANT S/O SARADAMMA, PULLOLIL VEEDU, DESATHINAKAM MURI,
           KRISHNAPURAM VILLAGE.

           (ADDITIONAL APPELLANT IMPLEADED AS LEGAL HEIR OF DECEASED
           APPELLANT AS PER ORDER DATED 28.06.2016 IN IA.1395/2016)

           BY ADVS.
           SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
           SRI.A.R.DILEEP,
           SRI. MANU SEBASTIAN,
           SRI. P.J. JOE PAUL



RESPONDENTS/ APPELLANTS & 2ND RESPONDENT/DEFENDANTS & 2ND PLAINTIFF:

     1     LEKSHMI, 78 YEARS,
           VETTUKATTIL HOUSE, DESHATHINAKAM MURI, PERINGALA,
           KRISHNAPURAM VILLAGE,-690 533.

     2     RAVI,   53 YEARS,          (DIED. LRS IMPLEADED)
           VETTUKATTIL HOUSE, DESHATHINAKAM MURI, PERINGALA,
           KRISHNAPURAM VILLAGE,-690 533.
     3     DAMODARAN, 78 YEARS            (DIED. LRS IMPLEADED)
           CHEMMATHIKUTTIYIL HOUSE, DESHATHINAKAM MURI, PERINGALA,
           KRISHNAPURAM VILLAGE,-690 533.
 RSA.238/2019
                                    2

      4        OMANA,
               PULLOLIL VEEDU,PERINGALA, DESATHINAKAM MURI, KRISHNAPURAM
               VILLAGE-690 533.

 ADDL. R5      SOMAVALLI, W/O.LATE RAVI,
               INCHAKKAL, VATHIKULAM, ALAPPUZHA DISTRICT-690 107

  ADDL.R6      PRASOBH, S/O.LATE RAVI, INCHAKKAL, VATHIKULAM, ALAPPUZHA
               DISTRICT-690 107.


               (LEGAL HEIRS OF DECEASED 2ND RESPONDENT ARE IMPLEADED AS
               ADDL.R5 AND R6 AS PER ORDER DATED 07.03.2022 IN
               IA.5/2018)

  ADDL.R7      AMARESAN, S/O.LATE DAMODARAN,
               CHEMMATHIKUTTIYIL HOUSE, DESHATHINAKAM MURI,
               PERINGALA, KRISHNAPURAM VILLAGE, KAYAMKULAM-690 559.

  ADDL.R8      ANIRUDHAN, S/O.LATE DAMODARAN, CHEMMATHIKUTTIYIL HOUSE,
               DESHATHINAKAM MURI, PERINGALA, KRISHNAPURAM VILLAGE,
               KAYAMKULAM-690 559.


               (LEGAL HEIRS OF DECEASED 3RD RESPONDENT ARE IMPLEADED AS
               ADDL.R7 AND R8 AS PER ORDER DATED 07.03.2022 IN
               IA.6/2018)

               BY ADVS.
               K.SASIKUMAR FOR R1, R3, R5 TO R8
               S.ARAVIND FOR R5 TO R7




      THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
16.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RSA.238/2019
                                       3



                                 JUDGMENT

Dated this the 16th day of March, 2022

Heard both sides.

2. The appellant/plaintiff has filed a suit for declaration

and injunction as O.S. No. 79 of 1999 before the Munsiff

Court, Kayamkulam. As per a judgment and decree, the suit

was decreed. Aggrieved by the said judgment and decree, an

appeal was preferred by the defendants before the Additional

District Court-I, Mavelikara. In the appeal, the learned

appellate Judge set aside the judgment and decree of the trial

court and dismissed the suit. Challenging the said judgment

and decree, the 1st plaintiff has filed this appeal.

3. During the pendency of the appeal, the appellant

expired and her legal representative was impleaded.

Respondents 2 and 3 also expired and the legal

representatives were impleaded. The 4th respondent though

accepted notice, did not appear before the court to contest the

appeal.

RSA.238/2019

4. Now the matter has been amicably settled between

the parties and as a result of the settlement which took place

out of court, the appellant herein filed I.A. No. 2 of 2022 to

the effect that the decree and judgment of the lower appellate

court can be set aside and the judgment and decree of the

trial court can be restored. The 1 st respondent and additional

respondents 5 to 8 also filed I.A. No. 3 of 2022 to the effect

that they have no objection in setting aside the judgment and

decree of the lower appellate court and upholding the

judgment and decree of the Munsiff Court, Kayamkulam as the

dispute has been amicably settled out of court due to the

intervention of mediators.

5. For the sake of convenience, the decreetal portion of

the trial court judgment is reiterated herein as follows:

"In the result suit is decreed declaring that plaintiffs have acquired easement right by prescription over the plaint C schedule way for the beneficial enjoyment of the plaint A schedule property. So a consequential decree of injunction is also granted restraining defendants and men under them from causing any obstruction in the plaint C schedule way or making any kind of alteration to it so as to RSA.238/2019

prevent the plaintiffs from using the said way for gaining access and ingress to the plaint A schedule property. However parties are directed to suffer their respective costs."

Since the parties have arrived at a settlement and mutually

agreed to restore the judgment and decree of the trial court,

the two I.As., i.e. I.A. Nos. 2 of 2022 and 3 of 2022, are hereby

allowed as prayed for.

Therefore, this appeal is disposed of restoring the

judgment and decree dated 22.01.2005 of the Munsiff Court,

Kayamkulam in O.S. No. 79 of 1999. The parties shall bear

their respective costs.

Sd/-

SHIRCY V.

JUDGE sb