Kerala High Court
Varghese vs Alias on 14 November, 2024
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. 567 OF 2024
AS 2/2022 OF SUB COURT, MUVATTUPUZHA
OS 239/2015 OF MUNSIFF COURT,MUVATTUPUZHA
APPELLANTS/APPELLANTS/DEFENDANTS NO. 1 AND 2:
1. VARGHESE, AGED 70 YEARS, S/O. LATE VARGHESE, KOCHERIL HOUSE,
OORAMANA KARA, MEMMURY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM
DISTRICT., PIN - 686663
2. JANCY VARGHESE, AGED 60 YEARS, W/O. VARGHESE, KOCHERIL HOUSE,
OORAMANA KARA, MEMMURY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM
DISTRICT, PIN - 686663
BY ADVS.PAUL K.VARGHESE,A.A.GEETHA
RESPONDENT/RESPONDENT/PLAINTIFF:
ALIAS, AGED 69 YEARS, S/O. KURIAKOSE, KOCHERIL HOUSE, OORAMANA
KARA, MEMMURY VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT., PIN
- 686663
This Regular second appeal having come up for orders on 14.11.2024,
the court on the same day passed the following:
M.A.ABDUL HAKHIM, J.
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R.S.A. No. 567 & 568 of 2024
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Dated this the 14th of November, 2024
ORDER
1. Both these Appeals arise from O.S.No.239/2015. The
Defendants 1 & 2 are the appellants. The plaintiff filed the suit
for declaration and injunction with respect to Plaint B Schedule
Way and Plaint C Schedule Thodu. The plaintiff claimed
easement by prescription over plaint C schedule Thodu
alleging that the defendants are trying to destroy the Thodu.
The plaintiff claimed that Plaint B schedule way passing
through the eastern boundary of the property of the
defendants, is having a width of 10 feet and the defendants
joined about 3 feet width portion of Plaint B schedule way with
their property.
2. The Trial Court decreed the suit in part declaring that the
plaintiff has got right of easement by prescription for the flow of
water through the Plaint C schedule Thodu and granting
injunction restraining the defendants from destroying, blocking
and altering the lie and nature of plaint C schedule Thodu, and
from obstructing the flow of water through the plaint C
R.S.A. No. 567 & 568 of 2024
schedule Thodu. The injunction sought with respect to Plaint
B schedule way was denied.
3. The plaintiff filed Appeal as A.S. No. 4 of 2022 before the First
Appellate Court against the refusal to grant injunction with
respect to the plaint B schedule way. The defendants filed
A.S. No. 2 of 2022 before the First Appellate Court with
respect to the granting reliefs with respect to plaint C schedule
Thodu. The First Appellate Court allowed A.S. No. 4/2022
granting injunction with respect to Plaint B Schedule way and
dismissed A.S.No.2/2022.
4. R.S.A. No. 567/2024 is filed against the judgment and decree
in A.S. No. 2/2022. R.S.A. No.568/2024 is filed against the
judgment and decree in A.S. No. 4/2022.
5. I heard the learned Counsel for the appellants
Sri.Paul.K.varghese.
6. After hearing the arguments and after going through the
pleadings and evidence, I find that the judgments and Decrees
of the Trial Court as well as the First Appellate Court so far as
it relates to Plaint C Schedule Thodu are perfectly justified and
there is no ground to interfere in R.S.A No.567/2024.
R.S.A. No. 567 & 568 of 2024
7. With respect to the plaint B schedule way, the case of the
plaintiff is that the width of the way is 10 feet, whereas the
case of the defendants is that it is having a width of only 6 feet.
I find from the judgment of the First Appellate Court that the
First Appellate Court granted reliefs with respect to Plaint B
Schedule way without adjudicating its width. In view of this, the
question of granting reliefs with respect to the plaint B
schedule is a matter to be considered in R.S.A. No. 568/2024.
Hence R.S.A.No.568/2024 is admitted on the following
substantial question of law:
1. Whether the First Appellate Court is justified in
granting injunction with respect to Plaint B
schedule way in A.S. No.4 of 2022, in the
absence of adjudication of the dispute regarding
its width?
8. Issue notice to the respondents in R.S.A.No.568/2024.
9. Since both the appeals arise from a single suit, R.S.A. No.
567/2024 is posted along with R.S.A.No.568/2024 without
admitting the same.
R.S.A. No. 567 & 568 of 2024
I.A.No.1/2024 in R.S.A No.568/2024
10. Interim stay with respect to the decree of injunction in A.S.No.
4/2022 regarding to plaint B schedule for a period of two months.
11. Post on 07.01.2025.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
mus
14-11-2024 /True Copy/ Assistant Registrar
