Kerala High Court
Maya vs K.Appukkuttan on 25 October, 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946
RSA NO. 640 OF 2023
AGAINST THE JUDGMENT & DECREE DATED 29.07.2022 IN AS
NO.35 OF 2021 OF DISTRICT & SESSIONS COURT, ALAPPUZHA
ARISING OUT OF THE JUDGMENT & DECREE DATED 08.09.2020 IN OS
NO.1034 OF 2016 OF ADDITIONAL MUNSIFF COURT, ALAPPUZHA
APPELLANT(S)/APPELLANTS/DEFENDANTS:
1 MAYA
AGED 38 YEARS
W/O JAYARAJ,
KALITHATTUNKAL HOUSE,
NOW RESIDING AT PUTHUPARAMBU,
SOUTH ARYADU MURI,
KOMALAPURAM VILLAGE,
AMBALAPPUZHA TALUK,
AVALUKKUNNU.P.O,
ALAPPUZHA.,
PIN - 688006
2 JAYARAJ
AGED 47 YEARS
S/O PURUSHAN,
KALITHATTUNKAL HOUSE,
NOW RESIDING AT PUTHUPARAMBU,
SOUTH ARYADU MURI,
KOMALAPURAM VILLAGE,
AMBALAPPUZHA TALUK,
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2
AVALUKKUNNU.P.O,
ALAPPUZHA.,
PIN - 688006
BY ADVS.
P.SHANES METHAR
N.KRISHNA PRASAD
RESPONDENT(S)/RESPONDENT/PLAINTIFF:
1 K.APPUKKUTTAN
AGED 71 YEARS
S/O KUTTAN,
SREEKRISHNA BHAVANAM,
SOUTH ARYAD MURI,
KOMALAPURAM VILLAGE,
AMBALAPPUZHA TALUK,
AVALUKKUNNU.P.O,
ALAPPUZHA.,
PIN - 688006
2 A.K.SOBHANA
AGED 64 YEARS
W/O APPUKKUTTAN,
SREEKRISHNA BHAVANAM,
SOUTH ARYAD MURI,
KOMALAPURAM VILLAGE,
AMBALAPPUZHA TALUK,
AVALUKKUNNU.P.O,
ALAPPUZHA.,
PIN - 688006
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 25.10.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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3
JUDGMENT
1. The defendants in a suit a for mandatory and prohibitory
injunction are appellants. The suit prayers are based on
the plaintiffs' claim of easement by prescription over plaint
schedule item No.2 pathway in which Plaint schedule Item
No.2A shed is constructed by the defendants. The
plaintiffs are husband and wife. According to them, the
Plaint Schedule Item No.1 property belongs to their
daughter which originally belonged to the 1 st plaintiff as
per purchase of the year 1994 and the same was settled
in favour of the 2nd plaintiff in the year 1996 and the 2 nd
plaintiff settled the same in favour of the daughter by
Ext.A1. Plaint Schedule item No.1A belongs to the 1 st
defendant. Plaint schedule item No.1A is situated on the
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western side of Plaint Schedule Item No.1. The property
of the brother of the 1st defendant Mr.Manoj, is situated on
the southern side of plaint schedule item No.1A.
2. The claim of the plaintiff is that the plaint schedule item
No.2 pathway is the pathway passing through item No.1A
and in continuation it is passing through the property of
the brother of the 1st defendant and it reaches the
Panchayath road on the southern side of the property of
the brother of the defendant. The defendant has
constructed Plaint Schedule Item No.2A shed in Item
No.2 and thus blocking passage through Item No.2 is
blocked. Hence mandatory injunction was sought to
remove Plaint Schedule Item No.2A Shed and prohibitory
injunction was sought to prevent disturbance of right of
way.
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3. The defendant filed written statement contending inter
alia that the way of the plaintiff is towards eastern side.
There is a gravel road through the eastern side of the
property which belonged to the plaintiffs earlier which was
situated on the east of Plaint Schedule Item No.1
property. The plaintiffs sold the said property and
thereafter purchased the Plaint Schedule Item No.1. The
plaintiffs did not raise any objection when compound wall
was constructed on the eastern side. The plaintiffs began
to walk through the first defendant's property without the
knowledge and consent of the defendants. The plaint
Schedule Item No.2 is non existing. There is a way
provided through the Plaint Schedule Item No.1A as per
the Partition Deed by which the 1st defendant derived the
property and it is meant for the passage of the parties to
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the said Partition Deed.
4. The Trial Court decreed the suit granting mandatory
injunction to dismantle and remove Plaint Schedule Item
No.2A shed and granting prohibitory injunction restraining
the defendants from constructing any structure in Plaint
Schedule Item No.2 and from causing obstruction and
nuisance to the plaintiff for their peaceful usage and
enjoyment of Plaint Schedule Item No.2.
5. Though the defendants filed Appeal before the First
Appellate Court, the same was dismissed confirming the
judgment and decree passed by the Trial Court.
6. I heard the learned counsel for the appellant.
7. The learned counsel for the appellant contended that
there is no evidence to prove that the plaintiffs have been
using the pathway for the statutory period of 20 years.
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The Plaint Schedule Item No.2 Pathway is not properly
identified. Their pathway is through the eastern side. The
document produced as Ext.A1 is of the year 2011 by
which the daughter of the plaintiffs derived the Plaint
Schedule Item No.1 property. The evidence of PW2 and
PW3 are not sufficient to prove that the usage of the
pathway for the last more than 20 years. The brother of
the 1st defendant through whose property the alleged
pathway is proceeding is not made a party to the suit.
8. It is seen from the Written Statement filed by the
defendants that they have disputed the very existence of
plaint schedule item No.2 pathway. The said pathway is
identified by the Advocate Commissioner. The Advocate
Commissioner also found that the said pathway proceeds
further through the property of Mr.Manoj, brother of the 1st
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defendant which is situated on the southern side of the
property of the defendant. It is seen that the plaintiffs do
not have a case that the brother of the defendant is
making any obstruction in the pathway and hence he is
not a necessary party in the suit but it is seen that the 1st
defendant had filed O.S. No.998/2016 earlier, seeking
injunction against the plaintiffs with respect to the
construction of the shed. The defendant constructed the
shed and thereafter the suit was not pressed. Thus the
recent construction of the shed in plaint schedule item
No.2 is proved. The plaintiffs examined PW2 and PW3
who deposed that the plaint schedule item No.2 pathway
is in existence for the last 25 years and the plaintiffs have
been using the same. The evidence would prove that the
1st plaintiff has been in possession of the Plaint A
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schedule property since the year 1995.
9. The Trial Court as well as the First Appellate Court relied
on the said evidence of PW1 to PW3 and decreed the suit
in favour of the plaintiffs. There is no perversity in the
appreciation of evidence with regard to the existence of
pathway on the eastern side, the Trial Court has
specifically found that the plaintiffs purchased the plaint
schedule item No.1 property after selling the property
situated on the eastern side of the plaint schedule item
No.1 property. There is a compound wall separating the
Plaint Schedule Item No.1 property and the eastern
property. The age of the compound wall is reported by the
Advocate Commissioner to be about 20 years. The
defendant could not point out any way through the
eastern side from the plaint schedule item No.1 property
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to the Advocate Commissioner.
10. In view of the aforesaid discussion, I do not find any
error of illegality in the judgment and decree passed by
the Trial Court as well as the First Appellate Court.
Accordingly, this Regular Second Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
sms
