Kerala High Court
C.L Jacob,(Transposed) vs Vijayamma K.G on 23 September, 2024
RSA NO. 429 OF 2023 1 2024:KER:70890
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
MONDAY, THE 23RD DAY OF SEPTEMBER 2024/1ST ASWINA, 1946
RSA NO. 429 OF 2023
JUDGMENT DATED 15.09.2017 IN OS NO.19 OF 2015 OF
MUNSIFF COURT, ETTUMANOOR ARISING OUT OF THE JUDGMENT
DATED IN AS NO.237 OF 2017 OF ADDITIONAL DISTRICT COURT
-V, KOTTAYAM
APPELLANTS/APPELLANTS 1 &2/DEFENDANTS 1 & 2:
1 C.L JACOB,(TRANSPOSED)
AGED 57 YEARS, S/O LATE LUKOSE, MARYVILASAM
(CHIRAYIL) HOUSE, ETTUMANOOR P.O,
KIZHAKKUMBHAGOM KARA, ETTUMANOOR VILLAGE,
KOTTAYAM, REPRESENTED BY HIS POWER OF ATTORNEY
HOLDER, VINI JACOB, AGED 49 YEARS, W/O C.L
JACOB, MARYVILASAM (CHIRAYIL) HOUSE,
ETTUMANOOR P.O, KIZHAKKUMBHAGOM KARA,
ETTUMANOOR VILLAGE. KOTTAYAM-683631.
(APPELLANT NO.1 IS TRANSPOSED AS RESPONDENT
NO.5 AS PER ORDER DATED 20.07.2023 IN
IA.4/2023), PIN - 683631
2 VINI JACOB, AGED 49 YEARS
W/O C.L JACOB, MARYVILASAM (CHIRAYIL) HOUSE,
ETTUMANOOR P.O, KIZHAKKUMBHAGOM KARA,
ETTUMANOOR VILLAGE. KOTTAYAM, PIN - 683631
[THE NAME OF APPELLANT NO.2 IS WRONGLY SHOWN
AS VIMI JACOB IN THE CAUSE TITLE IN THE
PLAINT]
BY ADV VINI JACOB(Party-In-Person)
RSA NO. 429 OF 2023 2 2024:KER:70890
RESPONDENTS/RESPONDENTS/PLAINTIFFS:
1 VIJAYAMMA K.G., AGED 70 YEARS
W/O LATE KRISHNANKUTTY NAIR, KRISHNA SADANAM
HOUSE, ETTUMANOOR P.O, KIZHAKKABALAM,
ETTUMANOOR VILLAGE, KOTTAYAM, PIN - 683631
2 LEELAMMA, AGED 66 YEARS, W/O LATE C.C JOSEPH,
ULLAPALLIL HOUSE, ETTUMANOOR P.O, ETTUMANOOR
VILLAGE, KOTTAYAM, PIN - 683631
3 LINCY, AGED 39 YEARS, W/O ROBERT ERTHUMALAYIL,
PANTHATHALA VIILAGE, MUTHOLI GRAMA PANCHAYATH,
MEENACHIL TALUK, KOTTAYAM,, PIN - 686573
4 JELMI, AGED 37 YEARS, W/O SABU, THANNLYIL,
VETTIMUKAL, ETTUMANOOR, VILLAGE, KOTTAYAM, PIN
- 686631
5 C.L JACOB, AGED 57 YEARS, S/O LATE LUKOSE,
MARYVILASAM (CHIRAYIL) HOUSE, ETTUMANOOR P.O,
KIZHAKKUMBHAGOM KARA, ETTUMANOOR VILLAGE,
KOTTAYAM
BY ADVS.
R.PARTHASARATHY
SEEMA(K/893/2000)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 23.09.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RSA NO. 429 OF 2023 3 2024:KER:70890
JUDGMENT
1. Defendants 1 and 2 in a suit for declaration and
permanent prohibitory injunction were the appellants.
After filing of the appeal, the 1 st appellant was transposed
as the 5th respondent as per Order dated 20.07.2023 in I.A
No.4/2023. Now the 2nd defendant alone is the appellant in
the appeal.
2. The plaintiffs, who are two in numbers, filed the suit for
declaration of easement by prescription over the plaint
schedule item No.4 way to their properties which are
respectively in the plaint. The 1 st plaintiff derived plaint
schedule item No.1 as per Ext.A1. The 2nd plaintiff derived
plaint schedule item No.2 as per Ext.A3. The plaint
schedule item No.3 is the property belonged to the
defendants who run a Theatre by name 'Lotus Theatre'
therein.
3. As per the plaint allegations, the plaint schedule item No.2
RSA NO. 429 OF 2023 4 2024:KER:70890
is situated on the south eastern side of the plaint schedule
item No.1. The defendants 1 and 2 have been conducting
a theatre by name Lotus in plaint schedule item No.3
property. The property belonging to one Geetha Benjamin
situated on the eastern side of the plaint schedule Item
No.3 The property of one Philip situated on the eastern
side of the property of Geetha Benjamin. The Panchayat
road lying north-south is situated on eastern side of the
property of Philip. Plaint schedule item No.4 way starts
from the western side of the panchayat road goes towards
the west along with the southern boundary of the
properties of Geetha Benjamin and Philip and it continues
towards the west through the northern boundary of plaint
schedule item No.2 and goes through the eastern
boundary of the plaint schedule item No.1 and ends on the
boundary plaint schedule item No.3 property. The way is
having 8 feet width at its entrance and it has a width of 10
feet on the sides of the plaint schedule item Nos.1 and 2
RSA NO. 429 OF 2023 5 2024:KER:70890
properties. In the bend portion the way has a width of 18
feet. The plaint schedule item No.4 belonged to the
defendants. The 3rd defendant is the prior owner of the
property of Geetha Vijayan. The predecessors and the
plaintiffs do use the plaint schedule item No.4 property for
the last more than 30 years continuously, openly,
peacefully and uninterruptedly as of right and as an
easement. Thus they acquired the right of easement by
prescription over plaint schedule item No.4 way. Plaint
schedule item No.4 way is the sole way towards the plaint
schedule item Nos.1 and 2 properties.
4. The cause of action alleged in the plaint is that defendants
1 and 2 attempted to install a gate across the plaint
schedule item No.4 in order to obstruct the way towards
the plaint schedule item Nos.1 and 2 properties. The suit
was filed seeking decree declaring the plaintiff's right of
easement by prescription over the plaint schedule item
No.1 way and restraining the defendants from reducing
RSA NO. 429 OF 2023 6 2024:KER:70890
the width of the way making any obstruction therein or
installing gate or other construction obstructing the
plaintiffs from enjoying the way.
5. The defendants resisted the suit prayers filing joint Written
Statement contending inter alia that plaint schedule item
No.3 belongs to the defendants. Plaint schedule item
No.4 is a part and parcel of the defendants property. The
plaint schedule item No.4 is a private way of the
defendants. The properties of the plaintiffs do not situate
adjoining the plaint schedule item No.4 way. The
description of way is not correct. The lie and boundaries
of the way were wrongly stated in the plaint. Plaint
schedule item No.4 way has a width of 8 feet. The
defendants for their convenience widened their entrance in
the plaint schedule item No.3 property. It is true that
Geetha Benjamin has right of easement over plaint
schedule item No.4. Plaint schedule item No.2 property
has no direct access from plaint schedule item No.4 way.
RSA NO. 429 OF 2023 7 2024:KER:70890
No person other than Geetha Benjamin and the 1 st
defendant has any right over this way. The way actually
belonged to the 3rd defendant. It is not correct to say that
the predecessors and plaintiffs do use the plaint schedule
item No.4 for more than 30 years. The plaintiffs have
convenient alternate way to their properties and they need
not depend on the plaint schedule item No.4 way. The
plaintiffs and the defendants do not have any intention to
install the gate at present.
6. After obtaining the Commission Report, the plaint was
amended by the plaintiffs amending the schedule showing
that the width of plaint schedule item No.4 in between the
properties of Philip and Narayanan as having a width of 8
to 10 feet and the width of the way at the bend portion at
the entry of plaint schedule item No.1 as 18 feet. The
defendants filed additional written statement stating that
the plaint schedule item No.4 does not have any bend at
any point and it does not have width of 18 feet at any
RSA NO. 429 OF 2023 8 2024:KER:70890
portion. The plaint was amended with an intention to
utilise the mistake committed by the Commissioner in his
Report.
7. The Trial Court decreed the suit declaring that the plaintiffs
have right of easement by prescription over the plaint
schedule item No.4 way and the defendants are restrained
from reducing the width of plaint schedule item No.4 way
and doing any act in the way obstructing the plaintiffs from
enjoying the way.
8. The defendants 1 to 3 filed an appeal before the First
Appellate Court and the same was dismissed confirming
the judgment and decree of the Trial Court.
9. The Appellant Smt.Vini Jacob appeared in person before
this Court and vehemently advanced arguments in support
of the appeal.
10. According to her, the plaint schedule item No.4 is
having only a width of 8 feet and the balance width of the
way is the property of the defendants situated on the
RSA NO. 429 OF 2023 9 2024:KER:70890
southern side of the said way. On the western side of the
plaint schedule item No.4 also the defendants are having
property. On account of the existence of the said
properties belonging to the defendants on the southern
and western sides of plaint schedule item No.4 property,
the plaint schedule item Nos.1 and 2 properties do not
have any access to plaint schedule item No.4 way. She
pointed out that the property purchased by the 1 st plaintiff
as per Ext.A6 is not situated on the southern side of the
plaint schedule item No.3 belonging to the defendants. It
is situated on the southern side of plaint schedule item
No.1.
11. The defendants do not dispute the existence of
the way starting from main road on the eastern side road
going to the west and ending at Plaint schedule Item No.3
property belonging to them. According to them, it has only
8 feet width. It is intended for the exclusive use of the
defendants and Geetha Benjamin. The plaint schedule
RSA NO. 429 OF 2023 10 2024:KER:70890
item Nos.1 and 2 properties do not have access to plaint
schedule item No.4 way. Two commission Reports and
Rough Sketches are marked in evidence as Exts. C1,
C1(a) were marked as C2 and C2(a). In C1(a) and C2(a)
Rough Sketches, Plaint Schedule Item No.4 way is
identified and the plaint schedule item Nos.1 and 2
properties are shown to have access to plaint schedule
item No.4. The defendants have not made any attempt to
point out their properties which are claimed to have
situated on the southern and western sides of the plaint
schedule Item No.4. The evidence of the defendants
would show that they have purchased the Plaint schedule
Item No.4 property in the year 1980 and at that time
theatre was in existence in the said property. The 1 st
plaintiff obtained the plaint schedule Item No.1 as per
Ext.A1 of the year 1979. The 2 nd plaintiff obtained the
plaint schedule Item No.2 as per Ext.A3 of the year 2012.
The Trial Court as well as the First appellate Court found
RSA NO. 429 OF 2023 11 2024:KER:70890
that case pleaded by the Plaintiffs is more probable. There
is nothing wrong in the judgments of the Trial court as well
as the First appellate Court.
12. It is seen from the impugned judgments that no
contention was advanced by the defendants with
reference to Ext.A6 either before the Trial court or before
the First Appellate Court. Ext.A6 would show that the 1 st
plaintiff purchased 22 square meters equivalent to 560
square links as per the said document. The said 560
square links is bounded by way on the east, Lotus theatre
on the north,the property of the buyer on the west and
property of the seller on the south. Going by the recitals in
Ext.A6, it could not be said that the said property is
situated on the southern side of the plaint schedule item
No.1 property. It is stated in the said document that the
said property has been used by the buyers even before
the date of the said document as way.
13. The Trial Court as well as the First Appellate Court found
RSA NO. 429 OF 2023 12 2024:KER:70890
that the plaintiffs have proved the usage of plaint schedule
item No.4 way for the statutory period and hence they are
entitled to get easement by description over plaint
schedule item No.4 way. I do not find any reason to
interfere into the impugned judgments passed by the Trial
Court as well as the First Appellate Court. The Substantial
questions of law framed in the Memorandum of appeal do
not arise in the matter.
14. The Regular Second Appeal is accordingly
dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
ncd
