Sainaba vs Sulaiman (Died)
2024 Latest Caselaw 16130 Ker

Kerala High Court

Sainaba vs Sulaiman (Died) on 10 June, 2024

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MRS. JUSTICE C.S. SUDHA
        MONDAY, THE 10TH DAY OF JUNE 2024 / 20TH JYAISHTA, 1946
                          RSA NO. 198 OF 2024
AGAINST THE ORDER/JUDGMENT DATED 05.08.2023 IN AS NO.42 OF 2020 OF
        SUB COURT, KOCHI ARISING OUT OF THE ORDER/JUDGMENT DATED
20.12.2019 IN OS NO.226 OF 2017 OF PRINCIPAL MUNSIFF COURT, KOCHI
APPELLANT(S)/APPELLANT/DEFENDANT:

             SAINABA
             AGED 72 YEARS
             W/O. LATE ABDUL RAHIMAN, KOVILAKAM HOUSE,
             CCI/1249, CHIRATTAPALAM, FORT KOCHI,
             ERNAKULAM DISTRICT, PIN - 682001
             BY ADVS.
             G.KRISHNAKUMAR
             B.S.SURAJ KRISHNA
             VINAY JOHN.A.J
             AGNET JARARD
RESPONDENT(S)/RESPONDENTS/PLAINTIFFS:

    1       SULAIMAN (DIED)
            AGED 65 YEARS
            S/O. SAIDALIKUTTY, DOOR NO. CCI/247, CHIRATTAPALAM,
            FORT KOCHI, KOCHI, DOOR NO.CC 2/ 689, KUNNUMPURAM,
            FORT KOCHI, ERNAKULAM DISTRICT, PIN - 682001
    2       SUHARA
            AGED 59 YEARS
            W/O. SULAIMAN, DOOR NO. CCI/247, CHIRATTAPALAM, FORT
            KOCHI, KOCHI- 682 001, NOW RESIDING AT DOOR NO.CC 2/689,
            KUNNUMPURAM, FORT KOCHI, KOCHI, PIN - 682001
    3       SUDHEER P.S
            AGED 50 YEARS
            S/O. SULAIMAN P.S, CC 5/1202 M, PUNNAKKAL HOUSE,
            KOMBARAMUKKU, MATTANCHERRY, KOCHI, PIN - 682002
    4       SHEFEEK P.S
            AGED 44 YEARS
            S/O. SULAIMAN P.S, CC 2/688 A, KUNNUMPURAM,
            FORT KOCHI, KOCHI, PIN - 682001
    5       RIYAS P.S
            AGED 43 YEARS
            S/O. SULAIMAN P.S, CC 2/381, PUNNACKAL HOUSE, LANE NO.4,
            CALVATHY, FORT KOCHI, KOCHI, PIN - 682001
 RSA NO.198 OF 2024

                                2

     6     FAIZAL
           AGED 41 YEARS
           S/O. SULAIMAN P.S, CC 2/688 A, PUNNACKAL HOUSE, FORT
           KOCHI, KOCHI, PIN - 682001
           BY ADVS.
           PRAVEEN.K.JOY
           ABISHA.E.R(K/001032/2023)
     THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON
10.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RSA NO.198 OF 2024

                                       3


                              C.S.SUDHA, J.
                       ----------------------------------
                           R.S.A.No.198 of 2024
                  ---------------------------------------------
                  Dated this the 10th day of June 2024

                             JUDGMENT

This second appeal under Section 100 read with Order XLII

Rule 1 CPC filed by the defendant/appellant is against the judgment

and decree dated 05/08/2023 in A.S.No.42/2020 on the file of the

Subordinate Judge's Court, Kochi, which appeal in turn is against the

judgment and decree dated 20/12/2019 in O.S.No.226/2017 on the file

of the Principal Munsiff Court, Kochi. The parties and the documents

will be referred to as described in O.S.No.226/2017.

2. The plaint A schedule property was purchased by the

plaintiffs in the year 2003. The shop room in the plaint A schedule

property was constructed leaving a gap of 1.10 meters from the

compound wall on the north. Through this area, it is possible to enter

the residential compound of the defendant. The gap between the shop

room in the plaint A schedule room and the compound wall on the RSA NO.198 OF 2024

north is the B schedule property of which the plaintiffs are the owners.

In the year 2012, the defendant sought the permission of the plaintiffs

to install an iron gate in the B schedule. Taking into account the cordial

relationship between the parties, the plaintiffs permitted her to do so.

The defendant has now trespassed into the B schedule property and

therefore the plaintiffs are entitled to recover the same on the strength

of their title. The plaintiffs also sought for a decree of mandatory

injunction for directing the defendant to remove the gate installed in

the B schedule property and for consequential injunction.

3. The defendant filed a written statement denying the claim of

the plaintiffs. The allegation of the plaintiffs that the defendant has a

pathway through the south eastern side of her property leading to the

main road on the east is not fully correct. The property of the defendant

has direct access to the main road on the east through the pathway on

the northern and southern side of the plaint schedule property. The

pathway on the southern as well as the northern side was being used by

the predecessor(s)-in-interest of the defendant and thereafter, by the

defendant, openly, peaceably, continuously, uninterruptedly as of right RSA NO.198 OF 2024

and as an easement. The defendant also contended that she had been

using the disputed area not only as a pathway but also for flushing out

sewage water, rain water etc., from her property to the public sewage

canal on the east, for which the defendant has acquired a right of quasi

easement over the disputed property. The defendant denied the

allegation of the plaintiffs that they were the owners of the gap between

the shop room in the A schedule property and the compound wall on

the north having a width of 0.6 meters and a length of 6.3 meters, that

is, the plaint B schedule. The allegation that the gate was put up in B

schedule property after obtaining the plaintiffs' consent was denied. In

the year 2010, the defendant had put up the iron gate without seeking

the permission of the plaintiffs. The defendant also denied the

allegation of the plaintiffs that she had trespassed into the plaint A

schedule property.

4. Necessary issues were framed by the trial court. On the

basis of the aforesaid pleadings, the parties went to trial. PW1 was

examined and Exts.A1 to A6 were marked on the side of the plaintiffs.

DW1 and DW2 were examined on the side of the defendant. Ext.X1 RSA NO.198 OF 2024

series was also marked. The report and plan of the advocate

commissioner have been marked as Ext.C1 series. The trial court, on a

consideration of the oral and documentary evidence and after hearing

both sides found the defendant to have raised mutually destructive

pleas and as the defendant was not able to establish any right over the

disputed area, decreed the suit. The defendant aggrieved by the

judgment and decree preferred AS No.42/2020. The first appellate

court confirmed the judgment and decree of the trial court and

dismissed the appeal. Hence, the defendant has come up in second

appeal.

5. Heard the learned counsel for the defendant/appellant.

6. It was vehemently, persuasively and quite strenuously

argued by the learned counsel for the defendant/appellant that both the

courts grossly erred in decreeing the suit though there was ample

materials on record to show acquisition of a right of easement by

prescription over the plaint B schedule pathway. However, both the

courts decreed the suit on the ground that the title deed of the defendant RSA NO.198 OF 2024

did not mention the disputed pathway. As the findings are perverse, the

same is liable to be reversed, argues the learned counsel for the

defendant/appellant.

7. The argument advanced that the claim of the defendant was

rejected merely because the disputed pathway does not find a mention

in the title deed of the plaintiffs is not correct. The defendant in her

written statement has raised two contentions:- i) a prescriptive right of

easement over the disputed B schedule pathway and ii) she has

perfected title over the B schedule by adverse possession and

limitation. The trial court found these contentions to be mutually

destructive. According to the trial court, when easement is claimed

there will have to be a dominant tenement and a servient tenement. A

servient owner and a dominant owner cannot be one and the same

person as one cannot claim easement right over one's own property.

Therefore, when the defendant claimed to have perfected title over the

disputed area by adverse possession and limitation, then her claim for

easement cannot survive. It was submitted by the learned counsel for

the defendant/appellant that the claim of adverse possession had been RSA NO.198 OF 2024

given up by the defendant. The said submission is not correct because,

on going through the judgments of both the courts, it is evident that the

contention of the defendant that she had perfected title over the

disputed area by adverse possession and limitation had not been given

up even at the time when evidence was adduced. Both the courts have

taken note of the fact that even in the proof affidavit filed by the

defendant in lieu of her chief examination, this claim of adverse

possession had been reiterated. Therefore, the argument that the said

claim of the defendant had been given up is not correct. The defendant

seems to be giving up the said contention now in this second appeal.

8. As the plea of adverse possession has now been given up, I

will consider whether the courts rightly appreciated the case of the

defendant regarding her right of easement by prescription. The

evidence on record shows that B schedule disputed area is a part of the

plaint A schedule property over which, admittedly, the plaintiffs have

title. The defendant purchased her property in the year 2001. The

present suit was filed in the year 2017. Therefore, as rightly noticed by

the first appellate court, the defendant cannot claim a right of easement RSA NO.198 OF 2024

by prescription over the B schedule without tagging the user of the

same by her predecessor(s)-in-interest. However, apart from the

interested testimony of the defendant as DW1, no independent

evidence has come on record to substantiate the case of the defendant

that even before she purchased her property in the year 2001, her

predecessor(s)-in-interest were also using the disputed pathway as of

right. Both the courts found that if the predecessor(s)-in-interest of the

defendant had also used the disputed pathway as of right, in all

probability, the existence of the pathway would have been mentioned

in the sale deed executed in favour of the defendant. The non

mentioning of the alleged pathway coupled with the fact that the

predecessor(s)-in-interest of the defendant had not been examined, the

courts were disinclined to accept the case of the defendant. As noticed

earlier, apart from the interested testimony of DW1, there is absolutely

no evidence to substantiate the contention of the defendant that she has

acquired a right of easement by prescription over the disputed B

schedule pathway. In such circumstances, the courts were right in

decreeing the suit.

RSA NO.198 OF 2024

There is no infirmity or perversity in the findings of the first

appellate court calling for an interference by this Court. As no

substantial questions of law arise, the appeal is liable to be dismissed

in limine and hence I do so.

Interlocutory applications, if any pending, shall stand closed.

Sd/-

C.S.SUDHA JUDGE NP