Kerala High Court
Jihad vs Beeran on 12 November, 2024
2024:KER:84138
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 12TH DAY OF NOVEMBER 2024 / 21ST KARTHIKA, 1946
RSA NO. 387 OF 2021
AGAINST THE JUDGMENT AND DECREE DATED 03.01.2020 IN AS NO.127
OF 2018 OF ADDITIONAL DISTRICT COURT - IV, KOZHIKODE ARISING OUT
OF THE JUDGMENT AND DECREE DATED 03.09.2018 IN OS NO.764 OF 2016
OF PRINCIPAL MUNSIFF COURT-II ,KOZHIKODE.
APPELLANTS/APPELLANTS/DEFENDANTS:
1 JIHAD
AGED 44 YEARS
S/O MOHAMMED UNNI, VAKAYIL H., P.O.KOLATHARA,
CHERUVANNUR AMSOM AND DESOM, KOZHIKODE TALUK.
2 SIRAJ
AGED 44 YEARS
S/O.MUHAMMED UNNI, VAKAYIL H., P.O.KOLATHARA,
CHERUVANNUR AMSOM AND DESOM, KOZHIKODE TALUK.
3 SHEIKH SIHAB
AGED 37 YEARS
S/O.MOHAMMED UNNI, VAKAYIL H., P.O.KOLATHARA,
CHERUVANNUR AMSOM AND DESOM, KOZHIKODE TALUK.
4 ANFAL
AGED 30 YEARS
S/O.MOHAMMED UNNI, VAKAYIL H., P.O.KOLATHARA,
CHERUVANNUR AMSOM AND DESOM, KOZHIKODE TALUK.
5 RASIYA
AGED 64 YEARS
W/O.MUHAMMAD UNNI, VAKAYIL H., P.O.KOLATHARA,
CHERUVANNUR AMSOM AND DESOM, KOZHIKODE TALUK.
RSA NO. 387 OF 2021 2
2024:KER:84138
BY ADVS.
R.SUDHISH
M.MANJU(K/003562/1999)
RESPONDENTS/RESPONDENTS/PLAINTIFFS:
1 BEERAN
AGED 68 YEARS
S/O.MUHAMMAD, RESIDING AT ASMAR SPAN RESIDENCY,
NADUVATTOM AMSOM AND DESOM, THAMBURAN-NORTH BEYPORE,
KOZHIKODE TALUK - 683 574.
2 KOTTUMMAL ASHRAF
AGED 49 YEARS
S/O.ALI, FIRDOUZ, NEDUMPARAMBU PARAMBA, CHERUVANNUR
AMSOM AND DESOM, P.O.KOLATHARA, KOZHIKODE TALUK - 673
027.
3 MUHAMMED MUSTHAFA
AGED 42 YEARS
S/O.HASSAN KOYA, ELAYADATH, CHERUVANNUR AMSOM AND
DESOM, P.O.KOLATHARA, KOZHIKODE TALUK - 673 027.
4 FAIZAL
AGED 42 YEARS
S/O.HASSAN KOYA, ELAYADATH, CHERUVANNUR AMSOM AND
DESOM, P.O.KOLATHARA, KOZHIKODE TALUK - 673027.
5 SAUDABI
AGED 41 YEARS
W/O.SHAJAHAN, TOUFEEQUE, CHERUVANNUR AMSOM AND DESOM,
P.O.KOLATHARA, KOZHIKODE TALUK - 673 027.
BY ADV NIRMAL.S - R1 TO R5.
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
12.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA NO. 387 OF 2021 3
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JUDGMENT
1. Defendants in a suit for permanent prohibitory injunction are the
appellants. The plaintiffs filed the suit seeking injunction with
respect to right of way through Plaint B schedule property. Plaint B
Schedule way lies east-west which is situated on the northern side
of the defendants' property, starting from public road on the
western side and ending at Plaint A Schedule properties on the
eastern side. The defendants is not in disputing the existence of B
schedule pathway, as the same has been concluded in an earlier
suit O.S. No. 490/1987. The cause of action for the plaintiffs to file
the suit is that, though they have been walking through the Plaint B
schedule way to their properties, which have been scheduled as
Plaint A Schedule Items Nos. 1 to 5, the defendants have been
objecting taking two-wheelers through the plaint B schedule way.
The prayer in the suit was to restrain the defendants and their men
by a perpetual injunction from obstructing the usage of plaint B
schedule way to access A schedule properties using two-wheeler
or motor cycles and from obliterating its boundaries and annexing
any part thereof as part of their property or causing any obstruction
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there.
2. The suit was resisted by the defendants filing Written Statement,
contending inter alia that the plaint B schedule way is in existence,
but it is not the only way to the plaint A schedule property, though it
would enable the plaintiff to enter their respective properties. The
pathway is not fit for vehicular passage as a well having a depth of
80 feet belonging to the defendants is situated on the immediate
southern side of the plaint B schedule pathway, and the
defendants have no objection to using the B schedule way as the
footpath.
3. The Trial Court decreed the suit with costs, granting injunction in
favour of the plaintiffs and further directing that the use of plaint B
schedule way for plying two wheelers shall be subject to a
condition that the plaintiff shall construct a concrete slab with PCC
1:2:4 (using 20 mm metal) with thickness of 30-45 cm over plaint B
schedule way for 3 meters length into the available width without
causing any damage to the well, at the plaintiff's costs and risks.
The defendants filed Appeal before the First Appellate Court. The
plaintiffs also filed a Cross-objection in the said Appeal. The First
Appellate Court dismissed both the Appeal and the Cross-
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objection. Hence, the defendants have filed the present Regular
Second Appeal.
4. I heard Sri. R. Sudhish, the learned counsel for the appellant and
Sri. Nirmal S, the learned Counsel for the respondents.
5. The learned counsel for the appellant submitted that what is
granted in the earlier decree in O.S. No. 490/1987 is an easement
by prescription, and hence the plaintiffs can use the plaint B
schedule pathway only for walking. They cannot take a two-
wheeler through the plaint B schedule pathway. The relief granted
by the Trial court is beyond the prayers in the suit. The well is
situated on the immediate southern side plaint B schedule pathway
and the Advocate Commissioner has noted that the width of the
pathway is only 85 cm at the point where the well is situated, if the
direction given by the Trial Court is sustained it would cover a
portion of the well.
6. The learned counsel for the respondent contented that, the
defendants has no claim that they are the owners of the plaint B
schedule pathway. In such a case, they cannot dictate as to the
usage of plaint B schedule pathway. Even though the prayer in the
plaint was only seeking injunction against the defendants from
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obstructing two wheeler passage through plaint B schedule
pathway, the Trial Court decreed the suit, directing the plaintiff to
construct concrete slab in order to protect the well and there by
protect the interest of the defendants as well.
7. I have considered the rival contentions. It is clear from the
pleadings that the defendants admit the existence of the plaint B
schedule pathway. They do not dispute the usage of the same as
the pathway for walking. Their objection only with respect to the
taking of two wheeler through plaint B schedule pathway. As
rightly pointed out by the learned counsel for the respondents, the
defendants do not claim any ownership over plaint B schedule
pathway. Since, the defendants are not the owners of Plaint B
schedule pathway , they cannot interfere with the usage of plaint B
schedule pathway and can not object taking of two-wheelers
through the said pathway. The Advocate Commissioner has found
that, the width of the plaint B schedule pathway at the point where
the well is situated is only 85 cm. It is specifically directed by the
Trial Court that, the construction of concrete slab in the available
width of the pathway. The available width means 85 cm, which
has been found by the Advocate Commissioner. It cannot exceed
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the said width. Hence, the apprehension of the appellants that if
the concrete slab is fixed as per the Trial Court Decree, it would
cover a part of the well is unfounded. I find that the Trial Court
has found substance in the grievance raised by the defendants
and hence sufficient safeguards are made to redress their
grievance. I do not find any error or illegality in the judgments and
decrees passed by the Trial Court as well as the First Appellate
Court. The Regular Second Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
mus
