Kerala High Court
Chandramathy Amma vs Radhakrishnan on 4 June, 2024
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946
OP(C) NO. 1758 OF 2023
OS NO.29 OF 2019 OF MUNSIFF COURT, KODUNGALLUR
PETITIONERS/RESPONDENTS/DEFENDANTS:
1 CHANDRAMATHY AMMA, AGED 93 YEARS, D/O.VADASSERY
KALLUR VEETTIL LAKSHMIKUTTY AMMA, METHALA VILLAGE
AND DESOM, KODUNGALLUR., PIN - 680669
2 VISHNU, AGED 31 YEARS
S/O.VADASSERY KALLUR VEETTIL VENUGOPALAN, METHALA
VILLAGE AND DESOM, KODUNGALLUR TALUK, PIN - 680669
3 ARJUN, AGED 23 YEARS, S/O.VADASSERY KALLUR VEETTIL
VENUGOPALAN, METHALA VILLAGE AND DESOM,
KODUNGALLUR TALUK. RESPRESENTED BY ITS POWER OF
ATTORNEY HOLDER, VISHNU, AGED 31 YEARS,
S/O.VADASSERY KALLUR VEETTIL VENUGOPALAN, METHALA
VILLAGE AND DESOM, KODUNGALLUR TALUK, PIN - 680669
4 SEETHAMANI
AGED 49 YEARS
W/O.VADASSERY KALLUR VEETTIL VENUGOPALAN, METHALA
VILLAGE AND DESOM, KODUNGALLUR TALUK, PIN - 680669
BY ADVS.MANSOOR ALI
JIBIN BABU
O.P.(C).No.1758/2023
-:2:-
RESPONDENT/PETITIONER/PLAINTIFF:
RADHAKRISHNAN
AGED 59 YEARS
S/O VADASSERY KALLUR VEETTIL CHANDRAMATHY, METHALA
VILLAGE AND DESOM, KODUNGALLUR TALUK,, PIN -
680669
BY ADVS.P. M RAFEEK (PATTAM)
V.A.NAVAS(K/1104/2002)
SARA JOHN(K/003061/2022)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
O.P.(C).No.1758/2023
-:3:-
JUDGMENT
Ext.P6 order allowing an application to amend the plaint in
O.S.No.29/2019 on the files of the Munsiff's Court, Kodungallur
(for short 'the trial court') is under challenge in this original
petition.
2. The petitioners are the defendants and the respondent
is the plaintiff in O.S.No.29/2019. Ext.P1 is the plaint. The suit
is one for declaration of right of easement and for consequential
permanent prohibitory injunction. The plaint A-schedule property
belongs to the plaintiff. The plaint B-schedule property belongs
to the defendants. The plaint C-schedule property is the way
claimed by the plaintiff for ingress and egress to the plaint A-
schedule property. In the plaint the plaintiff alleged that the
plaint A and B schedule property was common tenement earlier
and after the severance, the plaint C-schedule property is being
used for ingress and egress to the plaint A-schedule property.
3. Now the plaintiff filed Ext.P3 amendment application
to amend the plaint. The plaintiff wanted to incorporate
paragraphs 3A to 3D in the body of the plaint and also to amend
the prayer portion. In the proposed amendment, the plaintiff
alleged that, even though there was severance of tenements, the
plaint C-schedule property is not in existence. Hence, the
plaintiff wants to set out C-schedule way for ingress and egress
to the plaint A-schedule property by way of amendment. The
trial court after hearing both sides, allowed Ext.P3 application as
per Ext.P6 order. It is challenging the said order, this original
petition has been filed.
4. I have heard Sri. Mansoorali, the learned counsel for
the petitioners as well as Sri. P.M. Rafeek, the learned counsel
for the respondent.
5. The definite case of the plaintiff is that the plaint A
and B schedule properties were a single tenement jointly held by
the predecessor in interest of the plaintiff and defendants, and
after the partition, there was severance of tenements and plaint
C-schedule property has been used as a way for ingress and
egress to the plaint A-schedule property. Now in the proposed
amendment application, the plaintiff says that actually the C-
schedule way is not in existence. But since he is entitled for
easement of necessity through the plaint B-schedule property for
ingress and egress to the plaint A-schedule property, the way
shown as C-schedule property has to be set out. Section 13 (e)
of the Indian Easement Act (for short 'the Act') says that, when a
partition is made of the joint property of several persons, if an
easement over the share of one of them is necessary for enjoying
the share of another of them, the latter shall be entitled to such
easement. Similarly, Section 14 of the Act says that, when a
right to a way of necessity is created under section 13, the
transferor, the legal representative of the testator, or the owner
of the share over which the right is exercised, as the case may
be, is entitled to set out the way, but it must be reasonably
convenient for the dominant owner. Thus, even if the C-schedule
property shown in the schedule is not in use or in existence, the
plaintiff has every right to ask to set it out as way to the plaint A-
schedule property. Hence, the trial court was absolutely justified
in allowing the amendment application. Accordingly, this original
petition is dismissed. The trial court shall give an opportunity to
the defendants to file additional written statement.
sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp
APPENDIX OF OP(C) 1758/2023
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE PLAINT IN OS
29/2019 DATED 05.01.2019
Exhibit P2 THE TRUE COPY OF THE COMMISSION REPORT
DATED 27.11.2019
Exhibit P 3 THE TRUE COPY OF THE APPLICATION
I.A.NO:2535/2019 IN O.S 29/2019 DATED
19.10.2022
Exhibit P 4 THE TRUE COPY OF THE OBJECTION FILED BY
THE PETITIONER DATED 27.02.2020
Exhibit P5 THE TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE PETITIONER DATED 26.02.2020
Exhibit P6 THE CERTIFIED COPY OF THE ORDER IN
I.A.NO:2535/2019 IN O.S 29/2019 DATED
19.10.2022 OF THE MUNSIFF COURT,
KODUNGALLUR
