Kerala High Court
Joseph Mathew @ Saji vs K.Haridas on 14 November, 2024
RSA NO. 516 & 529 OF 2021
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 14TH DAY OF NOVEMBER 2024 / 23RD KARTHIKA, 1946
RSA NO. 516 OF 2021
AGAINST THE JUDGMENT DATED 12.03.2021 IN AS NO.218 OF 2018 OF
ADDITIONAL DISTRICT COURT-I, KOTTAYAM
ARISING OUT OF THE JUDGMENT DATED 31.08.2018 IN OS NO.311 OF 2016
OF MUNSIFF COURT, CHANGANACHERRY
APPELLANT/APPELLANT/PLAINTIFF:
JOSEPH MATHEW @ SAJI
AGED 54 YEARS
S/O. MATHAI, NECHIKATTAYA CHARIVUPURAYIDATHIL, CHELACOMBU
P.O, NEDUMKUNNAM KARA, NEDUMKUNNAM VILLAGE, CHANGANACHERRY
TALUK, KOTTAYAM DISTRICT.
BY ADV MATHEW SEBASTIAN
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 K.HARIDAS
AGED 47 YEARS
S/O. KOCHUKUNJU, ALUNKAL HOUSE, CHELAKOMBU P.O, NEDUMKUNNAM
KARA, NEDUMKUNNAM VILLAGE, CHANGANACHERRY TALUK, KOTTAYAM
DISTRICT.686 542
2 ELSY JOHN,
AGED 79 YEARS, W/O. JOHN A.C, ALUNKAL HOUSE, CHELAKOMBU
KARA, CHELAKOMBU P.O, NEDUMKUNNAM VILLAGE, CHANGANACHERRY,
KOTTAYAM DISTRICT 686 542
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3 JOY JOSEPH
S/O. JOSEPH, ALUNKAL HOUSE, ADAKKATHODU P.O, KELAKAM
VILLAGE, THALASSERY TALUK, KANNUR DISTRICT 670 674
4. MATHEW JOSEPH, AGED 75, S/O JOSEPH, ALUNKAL HOUSE,
PADIMON.P.O., PADIMON VILLAGE, MALLAPPALLY TALUK,
PATHANAMTHITTA DISTRICT - 689587.
5. ALEYAMMA CHACKO @ THANKAMMA, AGED 73 YEARS, ATHAVAYALIL
HOUSE, MUKKOOTTUTHARA.P.O., KANAMALA, ERUMELY VILLAGE,
KANJIRAPPALLY TALUK, KOTTAYAM
6. BRIJITHAMMA MATHEW @ LEELAMMA, AGED 69 YEARS,
VATTAMATTATHIL HOUSE, THIDANADU.P.O., PAIKA MURI, THIDANADU
VILLAGE, MEENACHIL TALUK, KOTTAYAM
7. ANIYAMMA MATHEW, AGED 65 YEARS, THEEMPALANGADU HOUSE,
KARUKACHAL.P.O., PANAYAMPALA MURI, KARUKACHAL VILLAGE,
CHANGANACHERRY TALUK, KOTTAYAM - 686510.
8. THRESIAMMA JOSEPH @ AMMINI, AGED 77 YEARS, MALIYECKAL
HOUSE, PALA.P.O., MEENACHIL VILLAGE, MEENACHIL TALUK,
KOTTAYAM-686575.
9. ROSAMMA RAJU, AGED 67 YEARS, CHITTEDATHU HOUSE,
MANIMALA.P.O., KANJIRAPPALLY TALUK, KOTTAYAM - 686543.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
14.11.2024, ALONG WITH RSA.529/2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
RSA NO. 516 & 529 OF 2021
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2024:KER:85118
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 14TH DAY OF NOVEMBER 2024 / 23RD KARTHIKA, 1946
RSA NO. 529 OF 2021
AGAINST THE JUDGMENT DATED 12.03.2021 IN AS NO.219 OF 2018 OF
ADDITIONAL DISTRICT COURT -I, KOTTAYAM
ARISING OUT OF THE JUDGMENT DATED 31.08.2018 IN OS NO.335 OF 2015
OF MUNSIFF COURT, CHANGANACHERRY
APPELLANT/APPELLANT/1ST DEFENDANT:
JOSEPH MATHEW @ SAJI
AGED 54 YEARS
S/O MATHAI, NECHIKATTAYA CHARIVUPURAYIDATHIL,
CHELACOMBU.P.O, NEDUMKUNNAM KARA, NEDUMKUNNAM VILLAGE,
CHANGANACHERRY TALUK, KOTTAYAM DISTRICT.
BY ADV MATHEW SEBASTIAN
RESPONDENTS/RESPONDENTS/PLAINTIFF & 2ND DEFENDANT:
1 K.HARIDAS, AGED 47 YEARS,
S/O KOCHUKUNJU, ALUNKAL HOUSE, CHELAKOMBU.P.O, NEDUMKUNNAM
KARA, NEDUMKUNNAM VILLAGE, CHANGANACHERRY, KOTTAYAM
DISTRICT-686542.
2 KUSUMOS @ JOSE,
AGED 59 YEARS
PURACKAL HOUSE, CHELAKOMBU.P.O, NEDUMKUNNAM KARA,
NEDUMKUNNAM VILLAGE, CHANGANACHERRY TALUK,
CHANGANACHERRY.P.O, KOTTAYAM DISTRICT-686542.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
14.11.2024, ALONG WITH RSA.516/2021, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
RSA NO. 516 & 529 OF 2021
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JUDGMENT
[RSA Nos.516/2021, 529/2021]
1. These appeals arise from two suits, O.S.Nos.335/2015 and
311/2016, which were tried jointly and disposed of by a
common judgment. Both suits were for a permanent
prohibitory injunction. O.S.No.335/2015 is filed seeking an
injunction against the usage of a pathway. O.S.No.311/2016
is filed seeking an injunction against disturbance of usage of
the pathway. The subject matter in both the suits is the claim
of an easement over a pathway from the plaintiff in
O.S.No.311/2016 who is the 1st defendant in
O.S.No.335/2015. He is the appellant in both these appeals.
He claimed easement by grant over the said pathway. The
said Pathway is item No.2 in O.S.No.335/2015 and Item No.3
in O.S.No.311/2016.
2. The Trial Court rejected the claim of the appellant and
accordingly dismissed O.S.No.311/2016 and decreed
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O.S.No.335/2016 granting a permanent prohibitory
injunction against the defendants therein from using Item
No.2 way therein for vehicular access and from committing
waste. Though the appellant filed appeals before the First
Appellate Court, the same were dismissed confirming the
judgments and decrees of the Trial Court. This Appeal is filed
challenging the judgments and decrees of the Trial Court
which are confirmed by the First Appellate Court.
3. I heard the learned Counsel for the appellant Sri.Mathew
Sebastian.
4. Admittedly, the appellant had earlier filed O.S.No.145/2012
against the defendants 1 & 2 in O.S.No.311/2016 and the
wife of the 1st defendant claiming easement by prescription
over the very same pathway. The said suit was withdrawn
with liberty to file afresh, and thereafter, the appellant filed
the present suit as O.S.No.311/2016, claiming an easement
by grant. The averment of the appellant in the present suit
is that easement by prescription was claimed in the earlier
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suit by oversight. If the appellant had an easement by grant
he would have definitely claimed the same in the earlier suit.
The Trial Court, as well as the First Appellate, concurrently
found that the appellant could not prove the easement by
grant claimed by him. The appellant could not point out any
evidence to prove the easement by grant claimed by him.
There is no error or illegality in the judgments and decrees
of the Trial Court and the First Appellate Court. No
substantial question of law arises in the matter. Accordingly,
both the Regular Second Appeals are dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Shg/-XX
