Kerala High Court
Rajan vs Meladath Sareena on 5 September, 2024
2024:KER:67978
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946
RSA NO. 239 OF 2024
AGAINST THE JUDGMENT DATED 20.01.2024 IN AS NO.35 OF 2022 OF
ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL COURT, VADAKARA
ARISING OUT OF THE JUDGMENT DATED IN OS NO.5 OF 2020 OF MUNSIFF
COURT, VADAKARA
APPELLANTS/APPELLANTS IN A.S/PLAINTIFFS IN O.S:
1 RAJAN
AGED 61 YEARS
S/O ONAKKAN, RESIDING AT PARAYANTE THAZHA KUNI,
AYANCHERI VILLAGE, PARAMBIL DESOM, PONMERI PARAMBIL
P.O., VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673542
2 KRISHNAN E.M
AGED 61 YEARS
S/O KORAN, EANGATH MEETHAK HOUSE, AYANCHERI VILLAGE,
PARAMBIL DESOM, PONMERI PARAMBIL P.O., VATAKARA TALUK,
KOZHIKODE DISTRICT, PIN - 673542
BY ADVS.
MANU VYASAN PETER
P.B.SUBRAMANYAN
SABU GEORGE
B.ANUSREE
MEERA P.
M.K.SADANANDAN (VATAKARA)
S.V.BALAKRISHNA IYER (SR.)
P.B.KRISHNAN (SR.)
RSA NO. 239 OF 2024 & 240 OF 2024
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RESPONDENTS/RESPONDENTS IN A.S/DEFENDANTS IN O.S:
1 MELADATH SAREENA
AGED 43 YEARS
D/O POCKER, MELEDATH HOUSE, AYANCHERI VILLAGE,
PARAMBIL DESOM, PONMERI PARAMBIL P.O., VATAKARA
TALUK, KOZHIKODE DISTRICT, PIN - 673542
2 RIYAS ALI
AGED 47 YEARS
S/O IBRAHIM, KUNIYIL HOUSE, AYANCHERI VILLAGE,
PARAMBIL DESOM, PONMERI PARAMBIL P.O., VATAKARA
TALUK, KOZHIKODE DISTRICT, PIN - 673542
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 05.09.2024, ALONG WITH RSA.240/2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
RSA NO. 239 OF 2024 & 240 OF 2024
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2024:KER:67978
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946
RSA NO. 240 OF 2024
AGAINST THE JUDGMENT DATED 20.01.2024 IN AS NO.34 OF
2022 OF ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL
COURT, VADAKARA ARISING OUT OF THE JUDGMENT DATED IN OS
NO.228 OF 2019 OF MUNSIFF COURT, VADAKARA
APPELLANTS/APPELLANTS IN A.S./DEFENDANTS IN O.S:
1 RAJAN
AGED 61 YEARS
S/O ONAKKAN, RESIDING AT PARAYANTE THAZHA KUNI,
AYANCHERI VILLAGE, PARAMBIL DESOM, PONMERI
PARAMBIL P.O., VATAKARA TALUK, KOZHIKODE
DISTRICT, PIN - 673542
2 RABEESH K
AGED 54 YEARS
S/O BALAN, AYANATH THAZHAKUNIYIL, AYANCHERI
VILLAGE, PARAMBIL DESOM, PONMERI PARAMBIL P.O.,
VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673542
BY ADVS.
MANU VYASAN PETER
P.B.SUBRAMANYAN
SABU GEORGE
B.ANUSREE
MEERA P.
M.K.SADANANDAN (VATAKARA)
RSA NO. 239 OF 2024 & 240 OF 2024
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RESPONDENT/RESPONDENT IN A.S./PLAINTIFF IN O.S.:
MELADATH SAREENA
AGED 43 YEARS
MELEDATH HOUSE, AYANCHERI VILLAGE, PARAMBIL
DESOM, PONMERI PARAMBIL P.O., VATAKARA TALUK,
KOZHIKODE DISTRICT, PIN - 673542
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 05.09.2024, ALONG WITH RSA.239/2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
RSA NO. 239 OF 2024 & 240 OF 2024
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JUDGMENT
1 Both these appeals arise from two suits that were
disposed of by a common judgment. The defendants in
O.S. No.228/2019 and the plaintiffs in O.S. No.5/2020 are
the appellants.
2 The plaintiff in O.S. No. 228/2019, filed a suit for
permanent prohibitory injunction restraining the
defendants from widening a ridge situated on the southern
side of plaint A schedule property belonging to her and her
brother-in-law, who is the second defendant in O.S.
No.5/2020.
3 According to her, she is in management of the property
belonging to her brother-in-law also. They obtained Ext.A3
building permit for increasing the height of the compound
wall on the southern side of plaint A schedule property.
When they started increasing the height of the compound
wall, the defendants threatened to demolish the
RSA NO. 239 OF 2024 & 240 OF 2024
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compound wall if two feet of land was not given for
widening the ridge.
4 O.S. No. 5/2020 is filed by the 1 st defendant in O.S. No.
228/2019 along with another person against the plaintiff in
O.S. No.228/2019 and her brother-in-law, Mr.Riyas Ali,
seeking permanent prohibitory injunction. The claim is that
there is a customary easement through the plaint B
schedule property lying in the east-west direction, which
forms part of the southern side of the plaint A schedule
property, and the defendants therein are attempting to
block the same.
5 The plaint A and B schedule properties in O.S. No.
228/2019 are the plaint A schedule Item No.1 and 2
properties in O.S. No. 5/2020. The pathway claimed by
the plaintiffs in O.S No.5/2020 is plaint B Schedule
property (hereinafter referred to as 'the Plaint B schedule
pathway'). The length and width of Plaint B schedule is not
specifically stated.
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6 In order to prove customary right over Plaint B schedule
pathway through the southern side of Plaint A Schedule
property, the plaintiffs in O.S No.5/2020 examined DWs 1
to 3. The Trial Court, as well as the First Appellate Court,
found that their evidence was not at all sufficient to prove
that there is the customary right of easement through the
alleged plaint B Schedule pathway.
7 The Advocate Commissioner, who measured the
properties found that the plaint B Schedule property
claimed by the plaintiffs in O.S No.5/2020 comes within
plaint A schedule property belonging to the defendants in
O.S No.5/2020. The plaintiffs in O.S No.5/2020 are not
claiming any right of easement. They have no case that
the defendants possess more land than covered by
Exts.A1 and A2. Though the Advocate Commissioner
found that there is a beaten track through the southern
side of plaint A schedule property, it is reported that
coconut trees, aged 25-30 years are also situated in the
said beaten track. He has also reported that the western
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side of B schedule is blocked with granite stones. It is
seen from the pleadings and evidence that the essential
complaint of the plaintiffs in O.S No.5/2020 is against the
construction of compound wall in the plaint schedule
property. PW4, who is the Secretary of the Panchayat,
has deposed that a Permit is issued after site verification.
Ext.A3 is not challenged by the plaintiffs in O.S No.
5/2020. The Trial Court, as well as the First Appellate
Court, has found that the evidence of DWs 1 to 3, with
respect to the existence of the way, is not reliable. In a
Second Appeal, this Court cannot re-appreciate evidence
with respect to the said finding.
8 Accordingly, I do not find any merit in the Regular Second
Appeals. Accordingly, both these appeals are dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
mus
