Kerala High Court
Jose Sebastian vs J Manoj on 21 January, 2025
2025:KER:4753
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 21ST DAY OF JANUARY 2025 / 1ST MAGHA, 1946
RSA NO. 20 OF 2025
AGAINST THE JUDGMENT AND DECREE DATED 06.07.2024 IN AS NO.2
OF 2022 OF ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL
COURT, THIRUVALLA ARISING OUT OF THE JUDGMENT AND DECREE
DATED 29.11.2021 IN OS NO.402 OF 2014 OF MUNSIFF COURT,
THIRUVALLA
APPELLANT(S)/APPELLANT IN A.S.No.2 OF 2022/
1ST DEFENDANT IN O.S No.402/2014:
JOSE SEBASTIAN
AGED 44 YEARS
S/O SEBASTIAN JOSEPH,
OTTATHIL, PAIPPAD MURI,
PAIPPAD VILLAGE,
CHANGANASSERY TALUK.,
PIN - 686537
BY ADVS.
CHACKO MATHEWS K.
MATHEWS JOSEPH
AISWARIA DEVI R.
SREEKUMAR P.N.
RESPONDENT(S)/PLAINTIFFS:
1 J MANOJ
AGED 45 YEARS
S/O JAYADEVAN NAIR,
2025:KER:4753
RSA Nos.20 & 19 OF 2025
2
RETHNA VIHAR,
PUNNAKUNNAM MURI,
KUTTAPUZHA VILLAGE,
THIRUVALLA TALUK.,
PIN - 689103
2 AMBILI
AGED 46 YEARS
W/O RAMESH KUMAR,
RETHNA VIHAR,
PUNNAKUNNAM MURI,
KUTTAPUZHA VILLAGE,
THIRUVALLA TALUK,
REPRESENTED BY HER POWER OF ATTORNEY HOLDER,
J.MANOJ RETHNA VIHAR,
PUNNAKUNNAM MURI, KUTTAPUZHA VILLAGE,
THIRUVALLA TALUK., PIN - 689103
3 J.SREEJITH
AGED 45 YEARS
S/O JAYADEVAN NAIR,RETHNA VIHAR,
PUNNAKUNNAM MURI, KUTTAPUZHA VILLAGE,
THIRUVALLA TALUK,
REPRESENTED BY HER POWER OF ATTORNEY HOLDER
J.MANOJ, RETHNA VIHAR,
PUNNAKUNNAM MURI,
KUTTAPPUZHA VILLAGE,
THIRUVALLA TALUK, PIN - 689103
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 21.01.2025, ALONG WITH RSA.19/2025, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
2025:KER:4753
RSA Nos.20 & 19 OF 2025
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 21ST DAY OF JANUARY 2025 / 1ST MAGHA, 1946
RSA NO. 19 OF 2025
AGAINST THE JUDGMENT AND DECREE DATED 06.07.2024 IN AS
NO.5 OF 2022 OF ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL
COURT, THIRUVALLA ARISING OUT OF THE JUDGMENT AND DECREE
DATED 29.11.2021 IN OS NO.425 OF 2014 OF MUNSIFF COURT,
THIRUVALLA
APPELLANT(S)/APPELLANTS IN A.S. 5/2022
PLAINTIFFS IN O.S. 425/2014:
1 JOSEPH SEBASTIAN
AGED 44 YEARS
S/O SEBASTIAN JOSEPH,
OTTATHIL, PAIPPAD MURI,
PAIPPAD VILLAGE,
CHANGANASSERY TALUK,
PIN - 690514
2 THOMAS REJI
AGED 45 YEARS
S/O JOHN THOMAS,
KURUPPANPARAMBIL VEEDU,
CHATHAMALA BHAGOM,
PALIYEKKARA MURI,
THIRUVALLA VILLAGE,
PIN - 689101
2025:KER:4753
RSA Nos.20 & 19 OF 2025
4
BY ADVS.
CHACKO MATHEWS K.
MATHEWS JOSEPH
AISWARIA DEVI R.
SREEKUMAR P.N.
RESPONDENT(S)/RESPONDENT IN A.S 5/2022/
DEFENDANT IN O.S 425/2014:
J MANOJ
AGED 45 YEARS
S/O JAYADEVAN NAIR,
RETHNA VIHAR,
MUTHOOR MURI,
KUTTAPUZHA VILLAGE,
THIRUVALLA TALUK,
PIN - 689103
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 21.01.2025, ALONG WITH RSA.20/2025, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
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RSA Nos.20 & 19 OF 2025
5
JUDGMENT
1. These two appeals arise from two suits - O.S. No.402/2014
and O.S. No.425/2014, which are disposed of by a common
judgment by the Trial Court, and hence these appeals are
also disposed of by a common judgment.
2. The dispute is with respect to a pathway, which is the Plaint
Schedule item No.2 in O.S. No.402/2014 and the Plaint
Schedule item No.3 in O.S. No.425/2014.
3. The plaintiffs in O.S. No.402/2014 are the legal heirs of one
Jayadevan Nair, who derived Plaint Schedule Item No.1
property as per Ext.A1 Partition Deed.
4. The plaintiffs in O.S. No.425/2014 are the assignees of the
western side property of Balasundaram, brother of
Jayadevan Nair, who derived it as per the very same Ext.A1
Partition Deed. The defendant is the 1st plaintiff in
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RSA Nos.20 & 19 OF 2025
O.S.No.402/2014. The plaintiffs are the defendants 1 and 3
in O.S.No.402/2014.
5. The aforesaid pathway is situated on the southern side of
the eastern property for providing access to the western
property from the road on the eastern side.
6. The plaintiffs in O.S.No.402/2014 sought a declaration of
title, right over the pathway, and a consequential injunction
to restrain the defendants, preventing them from entering
and using the pathway or committing any waste therein.
7. The plaintiffs in O.S. No.425/2014 sought a permanent
prohibitory injunction to restrain the defendant therein from
using the pathway.
8. The Trial Court and Appellate Court found the identity of the
pathway on the basis of Ext.C1(a) and Ext.C2(a) Plans.
9. The Trial Court found that the title of the pathway is with the
plaintiffs in O.S. No.402/2014, that they have the right to
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use the same, and the defendants have only the right of
way. On account of the said findings, the Trial Court
decreed O.S. No.402/2014 and dismissed O.S.
No.425/2014. On filing appeals by the 1st defendant in O.S.
No.402/2014 and the plaintiffs in O.S. No.425/2014, the
First Appellate Court confirmed the judgment and decree
passed by the Trial Court.
10. These Regular Second Appeals are filed by the 1 st
defendant in O.S. No.402/2014 and the plaintiffs in O.S.
No.425/2014.
11. I heard the learned counsel for the appellants.
12. The parties are referred to according to their status in
O.S.No.402/2014.
13. The learned counsel for the appellants contended that
defendants 1 and 3 derived title over the pathway as per
Exts.B2 and B3 title deeds. The pathway exclusively
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belonged to them for their property on the western side. It is
in evidence that the eastern property of the plaintiffs is
having road frontage on its eastern side and there is no
need for them to use the pathway. It is reported in the
Commission Report that the pathway has been remaining in
the possession of the defendants under lock and key.
14. I have considered the contentions. It is seen that the
western and eastern properties were partitioned as per
Ext.A1 Partition deed of the year 1970 between two
brothers - Balasundaram, who is the predecessor of the
defendants, and Jayadevan Nair, who is the predecessor of
the plaintiffs. Balasundaram obtained the property on the
western side and Jayadevan Nair obtained the property on
the eastern side. A pathway was formed on the southern
side of the eastern property of Jayadevan Nair to access
the western property of Balasundaram from the road on the
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eastern side. As per Ext.A1 Partition Deed, Balasundaram
was given only a right of way through the said pathway. The
title of the said pathway remained with Jayadevan Nair. It is
true that defendants 1 and 3 obtained the property
belonging to the Balasundaram, which is situated on the
western side. It is seen from the recitals in Exts.B2 and B3
that defendants 1 and 3 are given only the right of way
through the pathway. Even if they are given any title as per
Ext.B2 and B3, they could not derive any title over the said
pathway as their predecessor Balasundaram had only the
right of way through the pathway. The identity of the
pathway is in evidence as per Exts. C1, C1(a), C2 and
C2(a). The parties are not in dispute with respect to the
identity of the pathway. In view of the Ext.A1 partition deed,
the title of the pathway is with Jayadevan Nair, and the
same is devolved on the plaintiffs. They are entitled to use
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the pathway on account of their title over the same.
15. Since the title of the pathway remained with the plaintiff,
even if the plaintiffs have road frontage on the eastern side,
that will not in any way take away their right over the
pathway. The Balasundaram was given only a right of way
and the same was derived by the defendants. Hence, the
defendants have no right to prevent the plaintiffs from using
the pathway. The Advocate Commissioner has found that a
wicket gate is opened to the pathway from the eastern
property. Hence, the plaintiffs are entitled to get a
declaration of title and permanent prohibitory injunction
against the defendants from preventing them from entering
and enjoying the pathway. There is no illegality on the part
of the Trial Court in declaring the title of the plaintiffs over
the pathway granting an injunction and dismissing the suit
filed by the defendants for an injunction and on the part of
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the First Appellate Court to confirm the same.
16. In view of the aforesaid discussion, I do not find any
ground or reason to interfere with the impugned judgments
and decrees. There is no substantial question of law in the
matter. Accordingly, these Regular Second Appeals are
dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
sms
