Kerala High Court
Kumaran Nair vs Radha Bai,(Died)Legal Heirs Impleaded on 20 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
RSA NO. 989 OF 2006
AS NO.47 OF 2003 OF PRINCIPAL SUB COURT / COMMERCIAL COURT,
THIRUVANANTHAPURAM
OS NO.1377 OF 1999 OF ADDITIONAL MUNSIFF (RENT CONTROL COURT),
THIRUVANANTHAPURAM
APPELLANT :- (RESPONDENT/DEFENDANT)
KUMARAN NAIR, S/O KUNJUKRISHNA PILLAI, BHAVANI MANDIRAM,
MANACAUD LANE, KARAMANA, THIRUVANANTHAPURAM FROM,
SUKUMARA VILASOM, T.C.25/1748, SREEMOOLAM ROAD,
THAMPANOOR, THIRUVANANTHAPURAM.
BY ADV SRI.G.S.REGHUNATH
RESPONDENT :- (APPELLANT/PLAINTIFF)
1 RADHA BAI, [(DIED) LEGAL HEIRS IMPLEADED]
D/O.BHAGAVATHY PILLAI, SUKUMARA VILASOM, T.C.25/1799,
SREEMOOLAM ROAD, THAMPANOOR,, THIRUVANANTHAPURAM.
ADDL.2 SRI.K.SUKUMARAN NAIR,
HUSBAND OF LATE SMT.RADHA BAI,T.C.25/1056,SUKUMARA VILASOM,
SREEMOOLAM ROAD, THAMPANOOR, THIRUVANANTHAPURAM-695
001.
ADDL.3 SRI.S.MOHANAN,
S/O.K.SUKUMARAN NAIR,KOWSTHUBHAM,CRA-107, CHERIYA
UDDESHWARAM, PALKULANGARA P.O.,THIRUVANANTHAPURAM.
ADDL.4 R.SREEDEVI,
W/O.SHAJI KRISHNAN, SWATHI, MPRA-98, KALA KAUMUDI ROAD,
KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-
695 011.
(THE LEGAL HEIRS OF DECEASED SOLE RESPONDENT ARE
IMPLEADED AS ADDL.R2 TO R4 AS PER ORDER DATED 02.11.2022 IN
IA.2027/2018.)
BY ADVS.
V. SURESH
SRI G SUDHEER
R.HARIKRISHNAN (H-308)
RSA 989/2006 & 349/2007
2
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11.6.2024
ALONG WITH RSA.349/2007, THE COURT ON 20.6.2024 DELIVERED THE FOLLOWING:
RSA 989/2006 & 349/2007
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
THURSDAY, THE 20TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946
RSA NO. 349 OF 2007
IN AS NO.13 OF 2004 OF PRINCIPAL SUB COURT, THIRUVANANTHAPURAM
OS NO.1377 OF 1999 OF ADDITIONAL MUNSIFF (RENT CONTROL COURT),
THIRUVANANTHAPURAM
APPELLANT:- (APPELLANT/DEFENDANT)
KUMARAN NAIR, S/O KUNJUKRISHNA PILLAI,
BHAVANI MANDIRAM, MANAVCAUD LANE, KARAMANA,
THIRUVANANTHAPURAM FROM SUKUMARA VILASOM, T.C.25/1748,
SREEMOOLAM ROAD, THAMPANOOR, THIRUVANANTHAPURAM.
BY ADV SRI.G.S.REGHUNATH
RESPONDENT:- (RESPONDENT/PLAINTIFF)
1 RADHA BAI, [(DIED)LRS IMPLEADED ]
D/O.BHAGAVATHY PILLAI, SUKUMARA VILASOM, T.C.25/1799,
SREEMOOLAM ROAD,, THAMPANOOR, THIRUVANANTHAPURAM.
ADDL.2 SRI.K.SUKUMARAN NAIR,
HUSBAND OF LATE SMT.RADHA BAI,T.C.25/1056,SUKUMARA
VILASOM,SREEMOOLAM ROAD,, THAMPANOOR,
THIRUVANANTHAPURAM-695 001.
ADDL.3 SRI.S.MOHANAN,
S/O.SUKUMARAN NAIR, KOWSTHUBHAM,CRA-107,CHERIYA
UDDESHWARAM,PALKULANGARA P.O.,THIRUVANANTHAPURAM.
ADDL.4 R.SREEDEVI,
W/O.SHAJI KRISHNAN,SWATHI, MPRA-98, KALA KAUMUDI ROAD,
KUMARAPURAM, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-
695 011.
(LEGAL REPRESENTATIVES OF THE DECEASED SOLE RESPONDENT ARE
IMPLEADED AS ADDL.R2 TO R4 AS PER ORDER DATED 02.11.2022 IN
IA.1836/2018.)
BY ADVS.
V.SURESH
G.SUDHEER
R.HARIKRISHNAN (H-308)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11.6.2024
ALONG WITH RSA.989/2006, THE COURT ON 20.6.2024, DELIVERED THE FOLLOWING:
RSA 989/2006 & 349/2007
4
C.PRATHEEP KUMAR, J.
--------------------------------------
R.S.A.Nos.989 of 2006 & 349 of 2007
---------------------------------------------
Dated : 20th June, 2024
JUDGMENT
1. Both these Second Appeals are filed by a brother against his sister. He
filed these appeals against the judgment and decree of the Principal Sub
Judge, Thiruvananthapuram allowing A.S.47/2003 and dismissing
A.S.13/2004. He is the defendant in O.S.1377/1999 on the file of the
Additional Munsiff's Court, Thiruvananthapuram, filed by his sister. For
the purpose of convenience, the parties are hereafter referred to as per
their rank before the trial Court.
2. Their father Kunjukrishna Pillai executed Ext.A1 Will in the year 1962
bequeathing some of his properties in favour of his children including the
plaintiff and the defendant. While allotting separate shares to his
children, Kunjukrishna Pillai was vigilant to make specific provision for
the ingress and egress of the sharers, with the solemn object of avoiding
dispute between his children, in future. Since, even before the execution
of Ext.A1 Will deed, there was a well defined pathway starting from the
western public road, leading up to the family house which situated on the
eastern side of the entire 29 cents of property covered by Ext.A1,the
RSA 989/2006 & 349/2007
exact width of the said pathway was not specified in the will. The
calculations of Kunjukrishna Pillai proved wrong, when the relationship
between the children got strained. The suit filed by the sister for
enforcing her right of easement by grant over a pathway having a length
of 65 feet and width of 6 feet (plaint C schedule way), against her
younger brother, is now in it's 25th year. The trial court as well as the
First Appellate court found that the plaintiff is entitled to get the way
provided in the will. The trial court found that the width of the grant is
only 3 feet, while the First Appellate court found that it's width is 6 feet.
Before the sister could get a final answer to the disputed question, she
left all of us to the heavenly abode, leaving behind her husband and
children to get impleaded in the appeal as additional appellants 2 to 4, to
continue the legal fight.
3. The plaint C schedule pathway is through the northern side of the
defendant's property (plaint B schedule property), starting from the
western public road towards east and ending at the western boundary of
the plaintiff's A schedule property. According to the defendant, the
pathway claimed is through the courtyard of his residence and that such a
pathway through the courtyard will affect his privacy. Further, according
to the defendant, while the father was alive, in the year 1972, he had
shifted the pathway provided along the norther side of plaint B schedule
RSA 989/2006 & 349/2007
towards it's southern side. Therefore, according to the defendant, the
pathway available for the plaintiff is along the southern side of the plaint
B schedule and no pathway as scheduled in the plaint is in existence.
4. The trial court found that the plaint C schedule pathway as claimed
in the plaint is not in existence. However, it granted relief to the plaintiff
limiting the width of plaint C schedule pathway to 3 feet. Dis-satisfied
with the above judgment and decree, the plaintiff preferred A.S.47/2003
and the defendant preferred AS 13/2004. The 1st Appellate Court found
that the width of the C schedule pathway is 6 feet, against which the
defendant preferred these Second Appeals.
5. At the time of admission, the following substantial questions of law were
formulated by this Court in RSA 989/2006:
i) When Ext.A1 will dated 25.10.1962 only mentions
about a pathway in between the properties bequeathed
thereunder as schedules E and F, was the plaintiff entitled
to claim a right of way over a 6 feet wide pathway
described as per plaint C schedule property and were the
courts below justified in granting a decree as claimed ?
ii) When Ext.C1 report and Ext.C1(a) plan prepared by
the Commissioner do not identify the plaint C schedule
property and also do not describe plot No.II as a
RSA 989/2006 & 349/2007
pathway, were the courts below justified in granting a
decree on the assumption that plaint C schedule property
is part of plot No.II in Ext.C2 plan ?
6. No separate questions of law were formulated in RSA 349/2007 as
both the Appeals originated from the same judgment and decree.
7. Both sides were heard in detail on the above substantial questions
of law. In Ext.A1 will dated 25.10.1962, the testator has specifically
stated that already a pathway was in existence, starting from the western
road, leading up to the family house situated on the eastern side of the
entire 29 cents bequeathed to the children. Admittedly, the above family
house was now allotted to the plaintiff as per Ext.A1 Will. The testator
specifically stated in the Will that all the sharers shall use the then
existing pathway for the ingress from and egress to their shares and also
that the width of the existing pathway shall not be reduced by any of
them.
8. Subsequently, in the year 1970, the father executed Ext.A2 gift
deed in favour of the plaintiff in respect of 8.25 cents of property covered
by Ext.A1. Thereafter, in the year 1976, he had executed Ext.A3
settlement deed also in favour of the plaintiff in respect of another 2.5
cents of property which is also part of the property covered by Ext.A1.
Thus, as per Ext.A2 and A3, father had assigned the plaint A schedule
RSA 989/2006 & 349/2007
property covered by Ext.A1 will, in favour of the plaintiff. In Ext.A2 also
there is mention about the pathway which is already in existence and
specified in the will.
9. One of the contentions in the written statement is that, though at
the time of execution of Exts.A1 and A2 there was a pathway having a
width of 3 feet along the northern side of his property leading to the
family house on the eastern side, in the year 1972 the father himself
shifted the above pathway towards the southern side of the defendant 's
property and thereafter, nobody used the pathway which was lying along
the northern side of his property. Therefore, According to him, a 3 feet
width pathway substituted along the southern side of his property is the
only pathway now available for the plaintiff as access to the plaint A
schedule property. Further according to the defendant, ever since 1972,
nobody used the pathway which was lying along the northern side of his
property and as such the right of easement by grant over the earlier
pathway has extinguished.
10. Both the trial court as well as the 1 st Appellate Court found that there
is absolutely no merit in the contention of the defendant that the pathway
lying along the northern side of this property is not in existence since
1972 and also that in its place a new pathway was created along the
southern side of his property by the father. Similarly, the contention of
RSA 989/2006 & 349/2007
the defendant that the plaintiff's right of easement by grant over the
pathway along the northern side of his property got extinguished was
also found against the defendant by the trial court as well as the 1 st
Appellate Court. At the same time, there is ample evidence to show that
at the time of filing the suit and thereafter, there is a pathway lying along
the northern side of the defendant's property through which the plaintiff
is claiming right of easement by grant.
11. In Exts.C1 and C1(a) commission report and sketch prepared by
the Advocate Commissioner deputed by the trial court, the Commissioner
specifically noted that along the northern side of the residential building
in the defendant's property, there is a strip of land having a width of 2.5
m. on the west and 2.7 m. on the east. The commissioner further reported
that, through the above strip of land there is a pathway, along the line of
C schedule, starting from the western public road and ending at the
western side of the plaint A schedule property. At the western extremity
as well as on the eastern extremity of the said pathway, there are two
gates. The width of the gate on the western extremity has a width of 1.5
metres and the gate on the eastern extremity has a width of 1.4 metres.
The Commissioner further noted that the gate put up on the western side
of the pathway has an age of 30 years and the gate on the eastern side has
an age of 15 years at the time of his visit. The Commissioner in Ext.C1
RSA 989/2006 & 349/2007
report further noted that about 70% of the above pathway was concreted.
However, even in Ext.C1 report, the exact width of the existing pathway
was not specified. In the above circumstance, the finding of the 1 st
Appellate Court that the plaint C schedule pathway has a width of 6 feet,
is not substantiated by any reliable evidence. At the same time, the
finding of the trial Court that the said pathway has a width of only 3 feet
is also not in tune with the evidence on record.
12. The contention of the defendant that in the year 1972, his father has
closed the then existing pathway lying along the northern side of his
property and substituted a new pathway along the southern side of his
property cannot be believed for the simple reason that even now a
pathway is in existence along the line of the C schedule pathway. The
defendant is also using the said pathway as access to his residence. The
gate existing at the eastern side leading towards the plaint A schedule
property is a clear indication that, the plaintiff also has been using the
very same pathway as access to A schedule property. The defendant
cannot give any satisfactory explanation for the presence of such a gate
at the end of the existing pathway at the eastern side and also for the
presence of such a pathway even after the suit. Therefore, the contention
of the defendant that the father closed down the pathway provided in
Exts.A1 and A2 in the year 1972 and that the above pathway was shifted
RSA 989/2006 & 349/2007
towards the south of the defendant's property is devoid of any merit and
liable to be rejected.
13. It is true that there is a narrow strip of land lying along the
southern side of the defendant's residential building having a width of 80
cm at the western end. It is along the backyard of the residence of the
defendant. At the time of evidence, it is also revealed that a drain is
passing through the above narrow strip of land. Therefore, the finding of
the trial Court as well as the 1 st Appellate Court that no such pathway is
in existence along the southern side of the defendant's property, as access
to plaint A schedule property, is perfectly justified.
14. After the trial court judgment, there was a further development. The
defendant started constructing a new compound wall along the northern
side of his property, after leaving a pathway having a width of 3 feet. The
above attempt of the defendant was resisted by the plaintiff by filing an
Interlocutory Application along with A.S.47/2003 in which the 1 st
Appellate Court ordered status quo. The plaintiff filed another
application complaining that, in violation of the order of status quo, the
defendant constructed the wall and praying for it's demolition and the
First Appellate Court allowed the said application. The matter was taken
up before the High Court by filing a writ petition. The contention taken
by the defendant was that he had constructed the above compound wall
RSA 989/2006 & 349/2007
in compliance of the decree of the trial Court. However, since the
plaintiff disputed the width of the pathway, this Court also directed the
parties to maintain status quo and directed the 1st Appellate Court to
dispose of the Appeals in a time bound manner. The 1 st Appellate Court
while disposing of the appeals found that the plaintiff is entitled to get a
pathway having a width of 6 feet and hence directed the defendant to
demolish the compound wall constructed by him during the pendency of
this suit, in violation of the order of status quo.
15. The learned counsel for the defendant would contend that since
Kunjukrishna Pillai executed Exts.A2 and A3 settlement deeds in respect
of plaint A schedule property, subsequent to Ext.A1, the Will stands
cancelled by the operation of Section 70 of the Indian Succession Act
and as such, Ext.A1 could not be relied upon for any purpose including
for the purpose of claiming easement by grant over plaint C schedule
pathway.
16. However, the learned counsel for the plaintiff would argue that the
testator had executed Exts.A2 and A3 settlement deeds only in respect of
part of the properties covered by Ext.A1 and as such, the relevant
provision of Indian Succession Act applicable is Section 152 relating to
ademption and not Section 70. Section 152 of the Indian Succession Act
reads as follows:
RSA 989/2006 & 349/2007
Ademption explained - If any thing which has been
specifically bequeathed does not belong to the testator at the
time of his death, or has been converted into property of a
different kind, the legacy is adeemed; that is, it cannot take
effect, by reason of the subject-matter having been withdrawn
from the operation of the Will.
17. As per Ext.A1, the father had bequeathed properties in favour of the
plaintiff and his other children. Even the defendant got plaint B schedule
property as per Ext.A1 Will. Subsequently, the property bequeathed as
per Ext.A1 was settled in favour of the plaintiff as per Ext.A2 and A3
documents. Therefore, it can be seen that, Ext.A1 as such was not
cancelled by the testator and only a portion of the properties covered by
Ext.A1 was conveyed as per Exts.A2 and A3. Therefore, there is no merit
in the argument advanced by the learned counsel for the defendant that
Ext.A1 as such stands cancelled on the execution of Ext.A2 and A3. In
the above circumstance, the contention of the defendant that Ext.A1
became inoperative and that it cannot be used for any purpose including
for the purpose of identifying the pathway created along the northern side
of the plaint B schedule property, is liable to be rejected.
18. The learned counsel for the defendant relying upon the decision of
a Division Bench of this Court in Sarada v. Radhamani, 2017 (2) KLT
RSA 989/2006 & 349/2007
327 would argue that examination of at least one attesting witness, as
required under Section 68 of the Indian Evidence Act is mandatory to
prove Ext.A1 Will and in the absence of the same, the will stands not
proved. In the above decision, the Division Bench held that even if the
execution of the Will is not specifically denied or expressly admitted, at
least one attesting witness is to be examined to prove the same.
19. In the instant case, the defendant as well as his other siblings
obtained properties as per Ext.A1 Will. The defendant claims absolute
right and title over plaint B schedule property, by virtue of Ext.A1. In the
written statement he has not raised any challenge against Ext.A1 Will.
Subsequent to Ext.A1 will, the father executed Exts.A2 and A3
settlements in favour of the plaintiff and as such, with regard to the plaint
A schedule property, the plaintiff's title deeds are Exts.A2 and A3 and not
Ext.A1 Will. In the above circumstance, the contention of the defendant
that Ext.A1 Will is not proved, does not make any difference in the facts
and circumstances of this case.
20. At the same time, if Ext.A1 is considered as not proved, the
condition of the defendant would be worse. In that case, it is to be
presumed that the father died intestate, in respect of the properties
covered by Exts.A1, excluding those covered by Ext.A2 and A3. If so,
the plaintiff will be the absolute owner in possession of plaint A schedule
RSA 989/2006 & 349/2007
property, while the defendant as well as the plaintiff would be the co-
owners with respect to the plaint B schedule property now claimed by the
defendant. Moreover, before the trial court as well as the 1 st Appellate
court, no such contention was raised and as such a new contention in that
respect cannot be raised in the 2nd appeal.
21. Similarly at the time of evidence, the learned counsel for the
defendant raised another contention that the suit is bad for non-joinder of
necessary parties. It was contended that, by virtue of Exts.A1 and A2, the
property allotted to the plaintiff enures to her children also and as such,
the children of the plaintiff are also necessary parties to the suit. To
substantiate the said contention he has relied upon Section 22(1) of the
Travancore Nair Act, 1100, which reads as follows:
22 (1) Property acquired by gift or bequest by the wife or
widow or child or children from the husband or father, as the
case may be, after Regulation I of 1088 came into force,
shall unless a contrary intention is expressed in the
instrument of gift or bequest, if any, belong to the wife or
widow and each of the children in equal shares."
22. On the other hand, the learned counsel for the plaintiff relying upon
the decision of a Single Bench of this Court in Parameswaran Pillai
Gopinathan Pillai v. Stella Phenes, 1967 KLT 364 would argue that by
RSA 989/2006 & 349/2007
the operation of Section 22 of the Travancore Nair Act, the children born
subsequent to the conveyance cannot claim any interest under it. The
learned counsel would argue that in this case, the defendant has not taken
a contention that any such children who were living at the time of
execution of Exts.A1 and A2 were not impleaded and as such, the
contention that the suit is bad for non-joinder of necessary parties is not
maintainable. He would further contend that during the pendency of
these appeals, the plaintiff/respondent died and her LRs were impleaded
as additional respondents 2 to 4, and in spite of that, none of them have
raised any claim that they have any right over the plaint A schedule
property. Therefore, according to him, on that ground also, the contention
regarding non-joinder of necessary parties is unsustainable.
23. During the pendency of these Second Appeals, the plaintiff/respondent
died and her LRs were impleaded as additional respondents 2 to 4. None
of them have raised any contention that they have obtained any right over
the plaint A schedule property by virtue of Exts.A1 and A2. More over, it
is interesting to note that neither before the trial court nor before the 1 st
Appellate Court the defendant had raised such a contention. Therefore,
the trial Court has not framed any issues in that respect and no such issue
was considered or decided by the trial court as well as the 1 st Appellate
Court. It is interesting to note that even in the Second Appeal, the
RSA 989/2006 & 349/2007
defendant has not raised such a contention. In the above circumstances,
such a contention raised for the first time before this court in Second
Appeal cannot be entertained.
24. Relying upon the decision of the Hon'ble Supreme Court in
Vidhyadhar v. Manikrao and Another, 1999 (3) SCC 573, the learned
counsel for the defendant would argue that in the instant case the original
plaintiff has not entered the witness box to swear her case on oath and as
such, an adverse inference is liable to be drawn against her. On the other
hand, the learned counsel for the plaintiff relying upon Section 120 of the
Indian Evidence Act would argue that examination of the husband, who
is a competent witness is sufficient compliance of the above requirement.
25. It is true that in this case the original plaintiff was not examined as
a witness. Instead, her husband was examined as PW1 on her side.
Section 120 of the Evidence Act states that, in all civil proceedings, the
parties to the suit, and the husband or wife of any party to the suit, shall
be competent witnesses. In the instant case, the dispute is with respect to
C schedule pathway as provided in Exts.A1 and A2 documents. Since the
plaintiff is only claiming right of easement by grant over the pathway
provided in Exts.A1 and A2 documents, the oral evidence of the parties
have little reliance in the facts of this case. In spite of that, on behalf of
the plaintiff, her husband was examined as a witness, who is a competent
RSA 989/2006 & 349/2007
witness in this case, in view of S.120 of the Evidence Act. Therefore, no
adverse inference is liable to be drawn against the plaintiff for the mere
reason that she was not examined as a witness.
26. From the available evidence including Ext.C1 report it can be seen
that the pathway provided by the father along the northern side of the
defendant's property starting from the western public road leading upto
the plaint A schedule property on the eastern side is still in existence.
However, the exact width of the said pathway is not 3 feet as found by
the trial Court and not 6 feet as modified by the 1st Appellate Court.
27. Relying upon the decision of a learned Single Bench of this Court
in Simon v. N.Jayanth, 1986 KLT 457 the learned counsel for the
plaintiff would argue that even if Exts.A1 and A2 are silent about the
width of the C schedule pathway, the provision therein is to be construed
in favour of the beneficiaries of the grant and not in a manner restricting
the user of the pathway provided therein. In paragraph 10 of the above
decision, the learned Single Judge held that :
"..........Where, the grant however is silent about the extent of the
user, the grant "must be construed most strongly against the
grantor" and a reasonable user in the circumstances of each
case is to be inferred. A right of way cannot be enlarged in such
cases to extend the area of the right of easement; it cannot also
RSA 989/2006 & 349/2007
be unduly restricted within that area either. If, therefore, the right
of way admits the use of vehicles, that right cannot normally be
refused and a right of way in such cases cannot be reduced to a
mere footpath."
28. Therefore, while considering the width of the grant, paramount
consideration should be given to the intention of the grantor. For
ascertaining his intention, the will as a whole is to be looked into. When
Ext.A1 is taken into consideration as a whole, it can be seen that by
virtue of the will, the testator has not created any new pathway. On the
other hand, in the will, the testator had acknowledged the existence of a
well defined pathway in his property. In the will, he unequivocally
expressed his intention to retain the existing pathway, as such, without
any modification. Therefore, now what remains is to ascertain the width
of the pathway, which was in existence at the time when Ext.A1 was
executed in 1962.
29. On a perusal of Ext.C1 commission report it can be seen that there
are some indications which are useful and sufficient enough to resolve
the issue. The indications leading to the exact width of the C schedule
pathway are the gates provided at the western entrance and at the eastern
end of the said pathway. Both those gates are opening towards the
existing pathway. According to the Commissioner, the gate situated on
RSA 989/2006 & 349/2007
the western entrance has an age of 30 years and the gate on the eastern
end has an age of 15 years at the time of his visit. The said pathway
which was in existence even before the execution of Ext.A1 Will in the
year 1962 was used by the testator and all the family members as access
to the family house which situated on the eastern side of the entire 29
cents of property. The said pathway is specifically mentioned in Ext.A1
as well as in Ext.A2 and the father stipulated that the said pathway is to
be maintained as such by all the sharers and nobody shall reduce its
width or raise any dispute over the same.
30. The parties have no dispute that those gates were put up by the
testator himself. Since the above gate on the western side has a width of
1.5 metre and that at the eastern side has a width of 1.4 metre, it is only
just and proper to conclude that the width of plaint C schedule pathway is
the width of the gates on it's western and eastern ends. Therefore, it is to
be held that the plaintiff is entitled to right of easement by grant over a
pathway having a width of 1.5 metre on the western end and 1.5 metre on
the eastern end, and nothing more than that, along the line of plaint C
schedule.
31. In the above circumstance, the relief granted to the plaintiff by the 1 st
Appellate court is liable to be modified by limiting the width of the C
schedule pathway to 1.5 metre on the western end and 1.4 metre on the
RSA 989/2006 & 349/2007
eastern end. I do not find any irregularity or illegality in the finding of
the 1st Appellate Court with regard to all other matters except to the
limited extent of the width of the plaint C schedule pathway, as noted
above. In the above circumstances, the questions of law formulated by
this Court are liable to be answered accordingly. Accordingly, these
Appeals are liable to be disposed of limiting the width of the C schedule
pathway as noted above.
32. In the result, RSA 989 of 2006 is disposed of as follows :
The impugned judgment and decree of the 1 st Appellate Court is
sustained, subject to a modification that the width of the plaint C
schedule pathway is limited to 1.5 metre on the western end and 1.4
metre on the eastern end. All other findings of the 1st Appellate Court are
sustained.
In the result, RSA 349 of 2007 is dismissed. Considering the close
relationship between the parties, I order no costs.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/12.6.
