Kerala High Court
Krishnankutty @ Narayana Panicker vs Mani @ Damodara Panicker on 15 November, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
THURSDAY, THE 15TH DAY OF NOVEMBER 2012/24TH KARTHIKA 1934
RSA.No. 1364 of 2011 ( )
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AS.37/2009 OF SUB COURT, CHERTHALA
OS.639/2004 OF PRINCIPAL MUNSIFF COURT, CHERTHALA.
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APPELLANT/APPELLANT/1ST DEFENDANT:
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KRISHNANKUTTY @ NARAYANA PANICKER,
BHAGI BHAVAN, KUTHIYATHODE VILLAGE,
THURAVOOR. P.O., PIN-688 532.
BY ADVS. SRI.SHIJU VARGHESE (WAYANAD),
SRI.P.SAJEEV (PERUMPALAM),
SRI.J.ABHILASH.
RESPONDENTS/RESPONDENT/PLAINTIFF:
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MANI @ DAMODARA PANICKER,
PACHU BHAVAN, KUTHIYATHODE VILLAGE,
THURAVOOR. P.O., CHERTHALA. PIN-688 532.
R1 BY ADVS. SRI.T.SETHUMADHAVAN,
SRI.K.JAYESH MOHANKUMAR.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 15-11-2012, ALONG WITH RSA. NO. 17 OF 2012, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
rs.
THOMAS P. JOSEPH, J.
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R.S.A. No. 1364 of 2011
and
R.S.A. No. 17 of 2012
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Dated this the 15th day of November, 2012
COMMON JUDGMENT
The second appellant is wife of the first appellant, who is the brother of the respondent in R.S.A. No. 1364 of 2011 (Ist respondent in R.S.A. No. 17 of 2012). The first appellant and the respondent acquired the suit properties as per Ext.A1, partition deed No. 552 of 1984 of SRO, Kuthiathodu. As per that partition deed, the parties thereto including the first appellant and the respondent made division of the family properties. Item No. 1 of the plaint schedule in O.S. No. 639 of 2004 came to be allotted to the first respondent. While Ext. A1, partition deed was executed, it was agreed between the parties that along the northern side of item No.1 (allotted to the respondent as A schedule of Ext.A1, partition deed), a way shall be provided for access to the property allotted to the first appellant. However, the length and width of the way was not stated in Ext.A1. According to the respondent, the said pathway has a length of 50 feet and width R.S.A. .No.1364 of 2011 and R.S.A No. 17 of 2012 -: 2 :- of 3 feet (described as item No.2 in the plaint schedule). In the year, 2004 the respondent thought that the first appellant might trespass into the plaint schedule item No. 1 and cut open a new pathway along the northern side of the said item. The respondent filed O.S. No. 639 of 2004 in the Munsiff's Court, Cherthala for a decree for prohibitory injunction against his brother, the first appellant trespassing into the property or cutting opening a new pathway. The first appellant while resisting the suit, raised a counter claim.
2. According to the first appellant, the pathway has a width of 3 meters. Based on that allegation, he prayed for a relief against the respondent. Later, the plaint was amended to state that item No.2 pathway passes through the property of one Parameshwara panicker and Susheela (2nd appellant in R.S.A. No.17 of 2012). That amendment was replied by the first appellant. (Alleging that additional defendants 3 and 4 have, trespassing into a portion of item No.1 constructed boundary wall, respondent prayed for a decree for mandatory injunction against them also).
3. In answer to the counter claim, the respondent filed a R.S.A. .No.1364 of 2011 and R.S.A No. 17 of 2012 -: 3 :- replication denying the allegation therein concerning width of the pathway. During the pendency of the suit, the second appellant, (wife of the first appellant) was impleaded as additional second defendant. She also filed written statement taking up similar contentions as the first appellant. The trial court was of the view that if item No.2 pathway as claimed by the respondent passes through the property of Parameswara Panicker and Susheela (the second appellant), there is no reason why the respondent should feel apprehensive about the alleged attempted act of the appellant. The trial court dismissed the suit. The counter claim was also dismissed.
4. Challenging dismissal of the suit, the respondent filed A.S. No. 29 of 2009. Dismissal of the counter claim was challenged in A.S. No. 37 of 2009. While those appeals were pending, respondent again amended the plaint to state that item No.2, pathway passes through the northern portion of item No.1. The first appellate court allowed A.S. No. 29 of 2009 and dismissed A.S. No. 37 of 2009. The first appellate court accepted the plea of the appellants for right of easement by grant over item No.2 of the plaint schedule and accordingly R.S.A. .No.1364 of 2011 and R.S.A No. 17 of 2012 -: 4 :- granted a decree. The judgment and decree in A.S. Nos. 29 of 2009 and 37 of 2009 are under challenge in R.S.A Nos. 17 of 2012 and 1364 of 2011, respectively.
5. It is contended by the learned counsel for the appellants that the first appellate court was not right in confining the width of item No.2 to 3 feet. The learned counsel submits that from Ext.C1, it is clear that item No.2, pathway has width of 2.15 meters to 2.20 meters. It is also submitted by the learned counsel that the second appellant in R.S.A No. 17 of 2012 had a vehicle during the relevant time. To prove that contention, the appellants in R.S.A No. 17 of 2012 have filed I.A. No. 2839 of 2011 under Order XLI Rule 27 of the Code of Civil Procedure to receive additional evidence and produced copy of the registration particulars concerning vehicle No. KLE 7479. The learned counsel submits that the said vehicle stands in the name of the second appellant in RSA No. 17 of 2012 and that the evidence of the first appellant as DW.3 is that he married the second appellant in the year, 1975 and after the marriage, both of them came to the matrimonial home in a car through the disputed way. According to the learned counsel, that evidence R.S.A. .No.1364 of 2011 and R.S.A No. 17 of 2012 -: 5 :- would show that even during 1975, the way admitted a car. Reference is also made to the evidence of DW.6 that he had taken a lorry to the house of the first appellant sometime in the year, 1997 for renovation of the house. The learned counsel submits that at that time the respondent was also staying in the same house and later, he constructed his own house and shifted residence. The finding of the first appellate court regarding width of the way cannot be accepted.
6. The learned counsel for the respondent has contended that there is no contention raised by the appellants in their written statements about the second appellant (in RSA No. 17 of 2012) owning a car at any point of time. It is submitted that only in the cross examination of DW3 such evidence was attempted to be brought in. The further argument learned counsel has advanced is that the plea of the appellants over item No. 2 being one of easements by grant, it is controlled by the terms and conditions of the grant. Even the documents ought to be admitted in evidence vide I.A No. 2839 of 2011 shows that the vehicle was registered in the name of the second appellant (in RSA No. 17 of 2012) only w.e.f. 01.01.1985 while Ext. A1, R.S.A. .No.1364 of 2011 and R.S.A No. 17 of 2012 -: 6 :- partition deed providing the pathway was executed on 06.03.1984. Therefore, the grant as per Ext.A1 should be with reference to the situation existing on 06.03.1984 and not based on any subsequent development, if any.
7. In Ext.C1, report submitted by the Advocate Commissioner, true that the Commissioner has stated that the disputed pathway has width ranging from 2.15 meteres to 2.20 meters. But the Commissioner has reported in Ext.C1 that even with that width, it was difficult for a lorry or car to be taken through the disputed way on the north of the wall belonging to the respondent. However, the Commissioner found indications of an autorikshaw taken through that portion of the way.
8. Exts. C2 and C2(a) are the report and plan submitted by the Advocate Commissioner after measurement of the properties with the assistance of a Surveyor. There, the property belonging to the respondent is shown as situated towards south of the disputed way. The commissioner has reported that the disputed way (marked as MNQR in Ext.C2(a)) forms part of property of the respondent. Though, initially the respondent had attempted to show that the disputed way passes through the property of R.S.A. .No.1364 of 2011 and R.S.A No. 17 of 2012 -: 7 :- Parameswara Panicker and the second appellant (in RSA No. 17 of 2012), he came down to the fact that the pathway passes through the northern portion of item No.1. Accordingly, the plaint was amended while the appeals were pending in the first appellate court.
9. The dispute is concerning width of item No.2. According to the appellant, it is 3 meters. The Advocate Commissioner in Ext.C1, I stated to the width of the disputed way as ranging from 2.15 meters to 2.20 meters. But in Ext. C2(a), the survey plan width of the pathway shown does not tally with the description in Ext.C(1). I must notice that Ext.C2(a) is the plan prepared by the Surveyor after measurement. Therefore, preference cannot be given to Ext.C1.
10. The next argument is based on use of a car which the appellants allegedly owned at the relevant time. Assuming that after the marriage of the appellants they were taken to the matrimonial home in a car, that does not mean that there was a way admitting a car provided as per Ext.A1 even as on that day. Even as per the version of the appellant it would appear that the entire properties were lying as open space at that time. It is only R.S.A. .No.1364 of 2011 and R.S.A No. 17 of 2012 -: 8 :- natural that after the marriage the bride and bride groom were brought to the matrimonial home in a car. From that alone, no finding is possible in favour of the appellant regarding width of the way.
11. Other argument is based on the vehicle allegedly belonging to the second appellant in RSA No. 17 of 2012. I referred to the document produced along with I.A. No. 2839 of 2011. That document shows that the second appellant (in RSA No. 17 of 2012) acquired a car w.e.f. 01.01.1983.
12. Ext.A1, partition deed which provided the pathway is dated 06.03.1984. A right of easement by grant is controlled by the terms and conditions of the grant (C. Hirajee and another Vs. Suraj Bali - AIR 1929 Oudh 351). Ext.A1 does not states the width of the pathway. Instead, in clause 8 of Ext.A1, it is provided that the first appellant would have a right of access ( ) along northern portion of item No.1 (A schedule of Ext.A1). The expression " " means traffic, transportation, travelling etc. Therefore, merely from the use of the expression " " in Ext.A1, no inference is possible that the way was meant for vehicular traffic or that the appellants or R.S.A. .No.1364 of 2011 and R.S.A No. 17 of 2012 -: 9 :- any of them owned a vehicle at that time. On the other hand, I stated from the document sought to be admitted in evidence at the instance of the appellants that even as per their version, the second appellant in RSA No. 17 of 2012 became the owner of a car only on 01.01.1985.
13. In William Vs. James (Law report - 2, CP 577) it is held that right of easement by grant must be measured as a reasonable use for the purpose of land in the condition in which it was when the user took place. I am to bear in mind situation of the dominant tenement as on the date of Ext.A1 (06.03.1984). Gail on easements, 15th Edition at page 296 refers to Austin Vs. Scottish Widows' Fund Assurance Society, ((1881) 8 LR (Ireland) that a grant of right of way on foot does not authorise the grantee to have carried through the passage burdens not ordinarily carried by foot passengers in the use of a foot way.
14.The learned counsel for the appellants has invited my attention to the decision in Simon Vs. N. Jayanth (1986 KLT
457). There, it was held that an easement by grant is controlled by the terms and conditions. The right so granted will limit the extent of the user where the grant is silent about the extent of R.S.A. .No.1364 of 2011 and R.S.A No. 17 of 2012 -: 10 :- the user, the grant must be construed most strongly against the granter and a reasonable user in the circumstance of each case is to be interfered. The learned Judge has referred to Harlesberry's Law, 4th Edition (Vol. 14, paragraph 149 to 159 which is in paragraph 5)
12. Even the decision cited by the learned counsel would only show that in the absence of the grant specifying limit of the use, it is open to the court to construe the grant enabling a reasonable user in the circumstance of each case.
16. Apply that principle to the facts of this case. There is no reliable evidence to show that as on the date of Ext.A1, any of the appellants owned a vehicle. On the other hand, even the documents ought to be introduced in evidence in the second appeals by way of additional evidence would show that the second appellant in RSA No. 17 of 2012 became the owner of a car only subsequent to Ext.A1. Therefore, the limit of user of the grant provided as per Ext.A1 should be decided based on the circumstances which existed on the date of Ext.A1. Hence the document sought to be introduced in the second appeal is of no use. Moreover, there is no reason why the document was not R.S.A. .No.1364 of 2011 and R.S.A No. 17 of 2012 -: 11 :- produced in the trial court. I.A. No. 2839 of 2011 is dismissed.
17. The first appellate court found that the width of the pathway is only 3 feet. In the light of the above, I do not find any substantial question of law involved in these second appeals.
18. The first appellate court found that right of appellants for access should be limited to the way as described in item No.2 of the plaint schedule - a way having width of 3 feet. The learned counsel for the appellants has told me about the difficulties the appellants would experience if the width of the way is confined to 3 feet. The learned counsel submits that the first appellant is aged about 68 years and that the way as allowed by the first appellate court would not even admit an autorikshaw to take the appellants to the hospital in case such situation arises. The learned counsel submits that having regard to the oldness of the appellants such a possibility cannot be ruled out.
19. I have heard the learned counsel for the respondents also as to what width could be provided for the way notwithstanding that the appellants have not succeeded in their contentions.
R.S.A. .No.1364 of 2011 and R.S.A No. 17 of 2012 -: 12 :-
20. Though I found against the contention of the appellants that the way as provided in Ext.A1admitted vehicles like cars and lorries, I am inclined to think that providing a way so that an autorikshaw could be taken to the residence of the appellants is not a luxury but a minimum need having regard to the age of the appellants. Taking these aspects and that the first appellant and the respondent are direct brothers, are in the battle filed fighting for a way from the year, 2004 onwards and with the hope of putting an end to this litigation, I am inclined to direct the respondent to provide a way having width of five (5) feet for the use of the appellants. That would be sufficient for the appellants to take an autorikshaw to their residence. But, the appellants cannot aspire for more. For, they have no legal right
21. The second appeals in the circumstances are disposed of as under:
1) Title and possession claimed by the respondent over item No. 1 of the plaint schedule in O.S. No. 639 of 2004 of the Munsiff's Court, Cherthala on the strength of Ext.A1 is declared.
2) The respondent/plaintiff is directed to provide R.S.A. .No.1364 of 2011 and R.S.A No. 17 of 2012 -: 13 :- a 5 (five) feet wide way along the northern portion of item No.1 for access to the appellants.
3) The way shall be measured and provided towards south from the northern boundary of item No. 1 shown in Ext.C2 (a) (i.e. towards south from QN line in Ext.C2(a))
4) The length of the way shall be 50 (fifty) feet as found by the Advocate Commissioner and reported in Ext.C2
(a).
6) The respondent/plaintiff shall, with the assistance of Advocate Commissioner and the Surveyor locate the way as aforesaid and make it cartable within two months from this day failing which it will be open to the appellants to demarcate the way and make it cartable through the executing court.
6) The appellant in RSA No. 1364 of 2011 (1st appellant in RSA No. 17 of 2012/1st defendant), his men and agents are restrained by a decree for prohibitory injunction from widening the pathway provided as above, trespassing into the rest of item No.1 or commit waste therein.
R.S.A. .No.1364 of 2011 and R.S.A No. 17 of 2012 -: 14 :-
7) The decree granted by the first appellate court directing the defendants 3 and 4 to dismantle and remove the unauthorised construction in item No.2 will remain in force. They shall do so within a month from this day failing which it will be open to the respondent/plaintiff to do so through the executing court and realise its expenses from the defendants 3 and 4.
Judgment and decree of the first appellate court are modified to the above extent.
9. Parties shall suffer their costs throughout.
Sd/-
THOMAS P.JOSEPH, JUDGE smv //True copy// P.A. To Judge