Kerala High Court
Eliya vs Velu,(Died) Legal Heirs Impleaded on 6 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
RSA NO. 592 OF 2017
AGAINST THE DECREE AND JUDGMENT DATED 28.03.2017 IN A.S.NO.252/2012
ON THE FILE OF THE ADDITIONAL DISTRICT COURT-IV, THRISSUR AND AROSE
FROM THE JUDGMENT AND DECREE DATED 29.03.2010 IN O.S.NO.2832/2006 ON
THE FILES OF THE ADDITIONAL MUNSIFF COURT-II, THRISSUR
APPELLANTS/APPELLANTS IN A.S/PLAINTIFF AND DEFENDANTS 2,5,6,7,11 & 12
IN O.S.:
1 ELIYA
W/O.CHIRAMMAL ITTIACHAN, CHIRAMMEAL HOUSE,
PULLU VILLAGE & DESOM, THRISSUR TALUK
2 CHANDRAN
S/O. KOKKARNIKKAL GANGADHARAN, KOKKARNIKKAL HOUSE,
PULLU VILLAGE & DESOM, THRISSUR TALUK
3 ANTHONY
S/O. KOKKARNIKKAL SANKARAN, KOKKARNIKKAL HOUSE,
PULLU VILLAGE & DESOM, THRISSUR TALUK
4 KOCHUMARIYAM
D/O. KOKKARNIKKAL SANKARAN, KOKKARNIKKAL HOUSE,
PULLU VILLAGE & DESOM, THRISSUR TALUK
5 NALINI
W/O. KOKKARNIKKAL GANGADHARAN,KOKKARNIKKAL HOUSE,
PULLU VILLAGE & DESOM, THRISSUR TALUK
6 PRAVEEN
S/O.KOKKARNIKKAL GANGADHARAN,KOKKARNIKKAL HOUSE,
PULLU VILLAGE & DESOM, THRISSUR TALUK
7 PREETHA
D/O. KOKKARNIKKAL GANGADHARAN,KOKKARNIKKAL HOUSE,
PULLU VILLAGE & DESOM, THRISSUR TALUK
BY ADVS.
SRI.R.LAKSHMI NARAYAN`
SRI.M.ASHOK KINI
SMT.R.RANJANIE
RESPONDENTS/RESPONDENTS IN A.S/DEFENDANTS 1,8 TO 10 IN O.S:
1 VELU,(DIED)
S/O PATHIYATH SANKU, PATHIYATH HOUSE,
R.S.A. No. 592 of 2017
2
PULLU VILLAGE & DESOM, THRISSUR TALUK, PIN- 680 641
2 SASEENDRAN
S/O. KOKKARNIKKAL GANGADHARAN, PATHIYATH HOUSE,
PULLU VILLAGE & DESOM, THRISSUR TALUK, PIN- 680 641
3 RAVEENDRAN
S/O.KOKKARNIKKAL GANGADHARAN, PATHIYATH HOUSE,
PULLU VILLAGE & DESOM, THRISSUR TALUK, PIN- 680 641
4 PRADEEP
S/O.KOKKARNIKKAL GANGADHARAN, PATHIYATH HOUSE,
PULLU VILLAGE & DESOM, THRISSUR TALUK, PIN- 680 641
5 ADDL.R5
PUSHPANJALI,
W/O. VELU, PATHIYATH HOUSE, PULLU VILLAGE & DESOM,
THRISSUR TALUK, TRISSUR DISTRICT- 680641.
6 ADDL.R6
ANILKUMAR
S/O. VELU, PATHIYATH HOUSE, PULLU VILLAGE & DESOM,
THRISSUR TALUK, TRISSUR DISTRICT- 680641.
7 ADDL.R7
MANU
S/O. VELU, PATHIYATH HOUSE, PULLU VILLAGE & DESOM,
THRISSUR TALUK, TRISSUR DISTRICT- 680641.
(LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED AS ADDL.R5 TO
R7 AS PER ORDER DATED 08.12.2023 IN IA.2/2023)
R1 BY ADVS.
R.RAJITHA
SANTHOSH P.PODUVAL
THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A. No. 592 of 2017
3
JUDGMENT
Dated this the 6th day of February, 2024
This regular second appeal has been filed under
order XLII Rule 1 read with Section 100 of the Code of Civil
Procedure ("CPC" hereinafter) challenging the decree and
judgment in A.S. No.252 of 2012 dated 28.03.2017 on the
files of the Additional District Court-IV, Thrissur arose from
decree and judgment in O.S. No.2832 of 2006 dated
29.03.2010 on the files of the Additional Munsiff Court-II,
Thrissur. The appellants herein are the sole plaintiff and
defendants 2, 5, 6, 7, 11 and 12 and the respondents are
defendants 1, 8 to 10 in O.S. No. 2832 of 2006.
2. Heard the learned counsel for the appellants and
the learned counsel appearing for additional respondents 5
to 7, who got impleaded as the legal heirs of the original 1 st
defendant. Perused the lower court records and the verdicts
under challenge.
3. Parties in this appeal shall be referred as
"plaintiff" and "defendants" with reference to their status
before the trial court.
4. As per the order dated 29.06.2017, my learned
predecessor admitted this second appeal by formulating the
following substantial question of law:
Can an unsuccessful plea of easement
right as well as title militate against the
natural right to make use of a pathway that
has been made use of for a very long period,
to have access to the main road?
5. In this matter, suit was filed by the plaintiff, who is
the 1st appellant herein claiming right of easement by
necessity, easement by prescription as well as natural right
over plaint B schedule pathway, contending that the same is
the only way available to reach plaint A schedule property
belongs to the plaintiff. Accordingly, permanent prohibitory
injunction restraining the 1st defendant and his men from
obstructing plaint B schedule way was sought for.
6. Defendants 1 to 6 filed written statement.
Defendants 2 to 6 supported the claim of the plaintiff. The
contentions raised by defendants 2 to 6 are that the 1 st
defendant has no right over the plaint B schedule way and
the same is not a private property. The 1 st defendant has no
authority or right to permit or to obstruct the use of the
plaint B schedule way.
7. The 1st defendant filed written statement denying
right of the plaintiff over plaint B schedule way and
suggesting alternative ways to reach plaint A schedule
property.
8. The trial court raised necessary issues and tried
the matter. PWs 1 to 3 examined and Exts.A1 to A10 marked
on the side of the plaintiff. DWs 1 and 2 examined and
Exts.B1 to B10 marked on the side of the defendants.
Exts.C1 series marked as court exhibits.
9. Finally, the trial court dismissed the suit holding
that right of easement by prescription and easement by
necessity over plaint B schedule way, asserted by the
plaintiff could not succeed, since the plaintiff admitted that
the 1st defendant did not have any right over plaint B
schedule way.
10. Appeal has been filed challenging dismissal of the
suit by the trial court vide A.S. No.252/2012 along with I.A.
No.3274/2012, petition to condone delay of 730 days in filing
the appeal before the District Court, Thrissur. The 1 st
respondent therein filed objection to I.A. No.3274/2012,
contending that no sufficient cause shown to condone the
delay.
11. The learned Additional District Judge-IV,
considered rival submissions and found that the
appellants/petitioners therein failed to adduce any evidence
to justify condonation of delay of 730 days in filing the
appeal. The First Appellate Court also found that in the
affidavit in support of the petition, though allegations were
raised against the counsel who conducted the case, but the
said allegations could not be justified since the client had a
duty to enquire regarding details of the case with the
counsel. The sum and substance of the reasons stated by the
learned District Judge to dismiss I.A. No.3274/2012 is non
adducing of evidence to justify sufficient cause.
12. The learned counsel for the appellants pressed for
an opportunity to adduce evidence in I.A. No.3274/2012 and
to hear A.S. No.525/2012 on merits, to establish the right of
the appellants before the First Appellate Court.
13. The learned counsel appearing for additional
respondents 5 to 7 submitted that the attitude of the
appellants does not deserve even an opportunity and the
appellants even disobeyed the order of this Court and drawn
water connection through plaint B schedule way, during the
pendency of this second appeal. Thereby, the appellants
herein disobeyed the order of status quo in force as ordered
by this Court. Accordingly, he opposed allowing I.A.
No.3274/2012 and pressed for dismissal of the second
appeal.
14. As I have already pointed out, the learned
Additional District Judge-IV, dismissed I.A. No.3274/2012 on
the ground that no evidence adduced to justify delay of 730
days in filing the appeal. Having considered the arguments
on and off the issue, I am of the view that the order in I.A.
No.3274/2012 is liable to be set aside with an opportunity to
the appellants to adduce evidence to justify condonation of
delay in filing the appeal, subject to payment of cost by the
appellants. Accordingly, the decree and judgment in A.S.
No.425/2012 also stands set aside.
15. On payment of cost of Rs.5,000/- (Rupees Five
Thousand Only) by the appellants/petitioners in I.A.
No.3274/2012 to additional respondents 5 to 7, within a
period of ten days from the date of appearance. It is
specifically made clear that, if the cost as directed is not paid
by the appellants, the delay petition will stand dismissed and
consequently the first appeal also will stand dismissed.
16. Accordingly, the matter stands remitted back to
the First Appellate Court for considering I.A. No.3274/2012
afresh, after giving an opportunity to the appellants to
adduce evidence to support their contention in the petition.
Parties are directed to appear before the First Appellate
Court on 16.02.2024.
17. The First Appellate Court is directed to consider
and pass order in I.A. No.3274/2012, subject to payment of
cost as herein above directed, after providing opportunity to
both sides to adduce evidence and after hearing them.
Accordingly, this regular second appeal stands
allowed as indicated above.
Sd/-
A. BADHARUDEEN
SK JUDGE
