Henry vs K.L.Thomas
2023 Latest Caselaw 8409 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                  THE HONOURABLE MR. JUSTICE T.R.RAVI
         MONDAY, THE 7TH DAY OF AUGUST 2023 / 16TH SRAVANA, 1945
                          RSA NO. 907 OF 2015
AGAINST THE JUDGMENT AND DECREE DATED 29.11.2013 IN OS 206/2011 OF II
                  ADDITIONAL MUNSIFF COURT, ERNAKULAM
  AGAINST THE JUDGMENT AND DECREE IN AS 162/2013 OF THE ADDITIONAL
                      DISTRICT COURT-IV, ERNAKULAM
APPELLANTS/RESPONDENTS/DEFENDANTS:

     1       HENRY
             AGED 64 YEARS
             S/O.LATE PETER, KOLOTHUMVEEDU, VADUTHALA DESOM,
             CHERANELLORE VILLAGE, KANAYANNUR TALUK, ERNAKULAM
             DISTRICT.
     2       ANNIE
             AGED 54 YEARS
             W/O.HENRY, KOLOTHUMVEEDU, VADUTHALA DESOM, CHERANELLORE
             VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.

             BY ADVS.
             SRI.K.S.BABU
             SRI.BABU SHANKAR
             SRI.K.S.GOPI
             SMT.N.SUDHA
             SRI.K.V.WINSTON


RESPONDENT/APPELLANT/PLAINTIFF:

             K.L.THOMAS
             AGED 69 YEARS
             S/O.LATE LONAN, KOLOTHUMVEEDU, VELLISSERIPARAMBU,
             VADUTHALA DESOM, CHERANELLORE VILLAGE, KANAYANNUR TALUK,
             ERNAKULAM DISTRICT-682023.

             BY ADV SRI.G.SREEKUMAR (CHELUR)


     THIS   REGULAR   SECOND    APPEAL   HAVING   COME   UP   FOR   ORDERS   ON
07.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RSA NO. 907 OF 2015

                                      2

                              T.R. RAVI, J.
                        ---------------------------------
                        R.S.A No.907 of 2015
                     ----------------------------------------------
                 Dated this the 07th day of August, 2023


                               JUDGMENT

The appellants are the defendants in the suit. The suit was

filed by the plaintiff, claiming to be the absolute owner in

possession and enjoyment of plaint A schedule property, which

contains two buildings, one independent building and an

apartment building bearing door Nos.47/55 A, 47/55 B and 47/55

C. The 1st defendant is the son of the plaintiff's father's brother

Peter and the 2nd defendant is the wife of the 1st defendant. The

defendants are residing to the east of the plaint A schedule

property and they also own two buildings. The southern building

is let out to a tenant and the defendants are residing in the

northern building. It is stated that there is a concrete road

maintained by the Cochin Corporation leading to the plaint A

schedule property and the defendants' property from the Toll

Gate road. The road starts from Chittoor road on the western

side and proceeds towards east and then further proceeds RSA NO. 907 OF 2015

towards the north to a distance of 150 metres and towards west

and reaches plaint A schedule property. It is stated that the

north-south direction area of the part of the road has a width of

approximately 4 metres and the east-west direction area has a

width of approximately 1.6 metres. It is stated that the residents

of both sides of the road are using the road for their ingress and

egress and light motor vehicles and mini lorries can ply through

the road, which is 1.6 metres width. On 22.11.2001, the 1 st

defendant executed a consent letter in favour of the plaintiff

giving him permission to use a portion of his property for taking

vehicles to the plaint A schedule property. The permission was

regarding a width of 30 Cms from the south-east boundary and

80 Cms on the south-west boundary of his building bearing

No.65/70. The said portion has been shown as plaint B schedule

in the plaint. According to the plaintiff, the cause of action arose

when defendants tried to obstruct the way by putting granite

rubbles in the plaint B schedule property.

2. The defendants filed a written statement along with a

counter claim. According to the defendants, even though the RSA NO. 907 OF 2015

consent letter had been given, the same is not a registered

document. It is further stated that the plaintiff is not entitled to

use more than 30 Cms and 80 Cms width as consented. A

Commission was taken up and the Commissioner has filed

Exts.C1 report and C2(a) plan. The trial court dismissed the suit

as well as the counter claim filed by the defendants in the suit.

The plaintiff filed A.S.No.162 of 2013 challenging the dismissal

of the suit. The defendants did not challenge the dismissal of the

counter claim. The first appellate court, on re-appreciation of the

evidence, partly decreed the suit, granting a decree restraining

the defendants from interfering with the taking of vehicles to the

plaint A schedule property through plaint B schedule property,

which has a width of 20 Cms on its south-eastern side and 80

Cms on its south-western side, from reducing its width by

storing granite rubbles, wooden planks, iron rods and other

materials and from making any construction in the plaint B

schedule property having the aforesaid area. The claim for a

mandatory injunction directing the defendants to remove the

construction described in plaint C schedule was rejected. In the RSA NO. 907 OF 2015

appeal the defendants had filed a cross objection, which was

also dismissed by confirming the dismissal of their counter claim

by the Munsiff court. The Sheet No.II of the commission report

C2(a) has been made part of the decree. The defendants have

challenged the decree.

3. In this second appeal, the defendants submitted that a

reading of Ext.A6 consent letter would show that there is a

relinquishment of property and that the relinquishment of the

right over an immovable property, should be by a registered

document. Reliance is placed on the decision in Shyam

Narayan Prasad vs Krishna Prasad and Ors [AIR 2018 SC

3152] in support of the said contention. Regarding the width of

the pathway it is submitted that the evidence is not consistent in

so far as it refers to a width of 1.6 metres including a portion

covered by slab and in some places it would appear that the 1.6

metres is excluding the slab portion. Another ground taken is

that there is no specific pleading of any easement by grant and

hence no relief can be granted. Reliance is placed on Bachhaj

Nahar v. Nilima Mandal and another [AIR 2009 SC 1103] RSA NO. 907 OF 2015

to submit that the court cannot infer on the question of

easement and the plaint should specifically say the nature of the

easement. It is submitted that there are no pleadings regarding

easement by the trial court. It is further submitted that the trial

Judge had found that the relinquishment deed is unregistered

and hence no right is created by the said document and there

was no reason for the appellate court to interfere with the said

finding.

4. The counsel for the respondent/plaintiff submits that

there is no relinquishment involved in Ext.A6 and it only grants

permission to use a portion as a way and hence it does not

require a registration. It is submitted that there is no

inconsistency regarding the report and that even though the

Advocate Commissioner was examined, no point was made out.

It is further submitted that the court while partly decreeing the

suit has specifically avoided the portion which is covered by the

building of the defendants. Another contention taken is that

since the appellants had not challenged the judgment in the

counter claim the appellants cannot prefer this appeal since they RSA NO. 907 OF 2015

are bound by the said judgment. Reliance is placed on the

judgment of a Full Bench reported in Khalid v. Sulekha [1986

KLT 1113]. In reply, the counsel for the appellants relied on

two Division Bench judgments reported in Papavinasom

Subramonian v. Daivani Nagarama & Others [1953 KLT

851] and Koyyatton Sooppi v. Vaniyath Kallyani [1957 KLT

899] to submit that in a case where there is a common judgment

in two suits and an appeal is preferred only against one

judgment there is no res-judicata by the judgment in the other

suit. The decisions referred to specifically find that since the

judgment is a common judgment it cannot be said that the one is

former and the other is latter and hence the principles of res-

judicata cannot be applied.

5. I do not think it is necessary to go into the decisions

which have been referred to by the counsel on either side. The

case of the appellants itself is that the plaintiff should not use

more than what has been consented to in Ext.A6. It is evident

from the report of the Commissioner that a portion of the B

schedule is actually covered by a building of the defendants and RSA NO. 907 OF 2015

while granting the decree the court has very carefully excluded

the said portion and granted a decree for injunction only with

regard to the remaining portion. As such, the defendants cannot

have any grievance at all, since the court has not granted

anything more than what they have consented. The non-

registration of Ext.A6 is not vital, since the document cannot

understood to be one wherein the defendants have completely

relinquished their right over the property. The permission

granted is to use the area covered by the document as a way

and, since there is no transfer of property involved, there is no

requirement for registration.

No grounds are made out for interference with the well

considered judgment of the first appellate court. The second

appeal fails and is dismissed.

Sd/-

T.R.RAVI JUDGE mpm RSA NO. 907 OF 2015

APPENDIX OF RSA 907/2015

PETITIONERS' ANNEXURES ANNEXURE.A2 TRUE COPY OF THE BUILDING PLAN. ANNEXURE.A1 TRUE COPY OF THE BUILDING PERMIT.