Kerala High Court
K.P.Mujeeb vs Micheale Fathima on 28 May, 2025
2025:KER:39176
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 28TH DAY OF MAY 2025 / 7TH JYAISHTA, 1947
RSA NO. 639 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 07.10.2024 IN AS
NO.19 OF 2016 OF PRINCIPAL SUB COURT, ERNAKULAM ARISING OUT
OF THE JUDGMENT AND DECREE DATED 18.03.2016 IN OS NO.1158
OF 2007 OF II ADDITIONAL MUNSIFF COURT, ERNAKULAM
APPELLANT/APPELLANT/DEFENDANT:
K.P.MUJEEB
AGED 52 YEARS
S/O ALIPPA, ADVOCATE, RESIDING AT HOUSE NO.49/2984,
SOUTH JANATHA ROAD, PALARIVATTOM, KOCHI-682025
PRESENTLY RESIDING AT FLAT NO.7B, SILVER SQUARE
APRTMENTS, LISSY-PULLEPADY ROAD, ERNAKULAM NORTH P.O,
ERNAKULAM, PIN - 682018
BY ADVS.
SRI.SABU GEORGE
SHRI.P.B.KRISHNAN (SR.)
SRI.P.B.SUBRAMANYAN
SRI.MANU VYASAN PETER
SMT.B.ANUSREE
SMT.MEERA P.
SRI.S.V.BALAKRISHNA IYER (SR.)
RESPONDENT/RESPONDENT/PLAINTIFF:
MICHEALE FATHIMA
AGED 41 YEARS
W/O MOHAMMED NIYAS, ZEREENE, CHUTTUPADUKARA, EDAPPALLY
NORTH VILLAGE, KANAYANUR TALUK, ERNAKULAM, PIN -
682024
RSA Nos.639, 654 and
656 of 2024 &
OP(C)No.2859/24
2 2025:KER:39176
BY ADVS.
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.R.GITHESH
SHRI.AJAY BEN JOSE
SRI.MANJUNATH MENON
SHRI.SACHIN JACOB AMBAT
SMT.ANNA LINDA EDEN
SHRI.HARIKRISHNAN S.
SMT.ANJALI KRISHNA
SMT.ANAVADYA SANIL KUMAR
SRI.S.SREEKUMAR (SR.)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
28.05.2025, ALONG WITH OP(C).2859/2024, 654/2024 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
RSA Nos.639, 654 and
656 of 2024 &
OP(C)No.2859/24
3 2025:KER:39176
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 28TH DAY OF MAY 2025 / 7TH JYAISHTA, 1947
OP(C) NO. 2859 OF 2024
AGAINST THE ORDER DATED 12.04.2024 IN EP NO.16 OF
2024 OF PRINCIPAL MUNSIFF COURT, ERNAKULAM
PETITIONER/JUDGMENT DEBTOR:
K.P. MUJEEB
AGED 51 YEARS
, S/O KP ALIPPA, ALFA HOUSE, MANJERI P.O, MALAPURAM
DISTRICT, NOW RESIDING AT 7B, SILVER SQUARE
APARTMENTS, LISIE - PULLEPPADI ROAD, ERNAKULAM NORTH
P.O, COCHIN, PIN - 682018
BY ADVS.
SRI.E.NARAYANAN
SRI.S.V.BALAKRISHNA IYER (SR.)
RESPONDENTS/DECREE HOLDERS:
1 AMBREEN SADATH
D/O HARIS DAWOOD, AGE 46, 1D REGAL ROYAL NEAR JLN
STADIUM, KALOOR, PIN - 682017
2 DR ANSIYA ESHACK
AGED 44 YEARS
D/O A.M. ESHACK, REGAL ROYAL, NEAR JLN STADIUM,
KALOOR-, PIN - 682017
3 GEETHA KOSHY
D/O CHACKO, AGE 68, 4D. REGAL ROYAL, NEAR JLN STADIUM,
KALOOR, PIN - 682017
4 M. GOPALAKRISHNAN NAIR
AGED 81 YEARS
S/O LATE AVOOR CIK MADHAVAN NAIR 8C, REGAL ROYAL, NEAR
JLN STADIUM, KALOOR, PIN - 682017
5 REMYA CHACKO
D/O A. K. BHAGYAM PILLAI, AGE 39. 30. REGAL ROYAL,
RSA Nos.639, 654 and
656 of 2024 &
OP(C)No.2859/24
4 2025:KER:39176
NEAR JLN STADIUM, KALOOR, PIN - 682017
6 KATHRY DOMINIC
AGED 81 YEARS
D/O MATHAI, 4C, REGAL ROYAL, NEAR JLN STADIUM KALOOR,
PIN - 682017
7 FARIDHEEN RAHMAN
AGED 45 YEARS
S/O LATE PC. ABDUL RAHMAN. 8B REGAL ROYAL, NEAR JLN
STADIUM, KALOOR, PIN - 682017
8 BIJU VISWANATH
AGED 47 YEARS
S/O P VISWANATHAN NAIR 1C REGAL ROYAL. NEAR JLN
STADIUM, KALOOR, PIN - 682017
9 KP JAYAKUMAR
AGED 47 YEARS
S/O PADMANABHAN NAIR 3D, REGAL ROYAL. NEAR JLN
STADIUM, KALOOR, PIN - 682017
10 VIJI GOPALAKRISHNAN
AGED 54 YEARS
D/O GOPALAKRISHNAN 7C. REGAL ROYAL, NEAR JLN STADIUM,
KALOOR-, PIN - 682017
11 SEBASTIAN JOHN
AGED 60 YEARS
S/O LATE PD JOHN 7D. REGAL ROYAL. NEAR JLN STADIUM
KALOOR, PIN - 682017
BY ADVS.
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.R.GITHESH
SHRI.AJAY BEN JOSE
SRI.MANJUNATH MENON
SHRI.SACHIN JACOB AMBAT
SHRI.HARIKRISHNAN S.
SMT.ANNA LINDA EDEN
SMT.ANAVADYA SANIL KUMAR
SMT.ANJALI KRISHNA
SRI.S.SREEKUMAR (SR.)
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28.05.2025,
ALONG WITH RSA.639/2024 AND CONNECTED CASES, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
RSA Nos.639, 654 and
656 of 2024 &
OP(C)No.2859/24
5 2025:KER:39176
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 28TH DAY OF MAY 2025 / 7TH JYAISHTA, 1947
RSA NO. 654 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 07.10.2024 IN AS
NO.20 OF 2016 OF PRINCIPAL SUB COURT, ERNAKULAM ARISING OUT
OF THE JUDGMENT AND DECREE DATED 18.03.2016 IN OS NO.1221
OF 2007 OF II ADDITIONAL MUNSIFF COURT, ERNAKULAM
APPELLANT/APPELLANT/DEFENDANT NO.1:
K.P.MUJEEB
AGED 52 YEARS
S/O ALIPPA, ADVOCATE, RESIDING AT HOUSE NO.49/2984,
SOUTH JANATHA ROAD, PALARIVATTOM, KOCHI-682025
PRESENTLY RESIDING AT FLAT NO.7B, SILVER SQUARE
APRTMENTS, LISSY-PULLEPADY ROAD, ERNAKULAM NORTH P.O,
ERNAKULAM, PIN - 682018
BY ADVS.
SRI.SABU GEORGE
SHRI.P.B.KRISHNAN (SR.)
SRI.P.B.SUBRAMANYAN
SRI.MANU VYASAN PETER
SRI.S.V.BALAKRISHNA IYER (SR.)
RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 2 AND 3:
1 MICHEALE FATHIMA
AGED 41 YEARS
W/O MOHAMMED NIYAS, ZEREENE, CHUTTUPADUKARA, EDAPPALLY
NORTH VILLAGE, KANAYANUR TALUK, ERNAKULAM, PIN -
682024
2 JOSEPH ALIAS J.J.KUTTIKKATTU
AGED 70 YEARS
RSA Nos.639, 654 and
656 of 2024 &
OP(C)No.2859/24
6 2025:KER:39176
S/O KUTTIKKATTU OUSEPH, KUTTIKKATTU HOUSE, KALOOR
DESOM, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM,
PIN - 682017
3 JESSY JOSEPH
AGED 70 YEARS
W/O JOSEPH ALIAS J.J. KUTTIKKATTU, KUTTIKKATTU HOUSE,
KALOOR DESOM, ELAMKULAM VILLAGE. KANAYANNUR TALUK
ERNAKULAM, PIN - 682017
BY ADVS.
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.R.GITHESH
SHRI.AJAY BEN JOSE
SRI.MANJUNATH MENON
SHRI.SACHIN JACOB AMBAT
SMT.ANNA LINDA EDEN
SMT.ANAVADYA SANIL KUMAR
SMT.ANJALI KRISHNA
SRI.S.SREEKUMAR (SR.)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
28.05.2025, ALONG WITH RSA.639/2024 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA Nos.639, 654 and
656 of 2024 &
OP(C)No.2859/24
7 2025:KER:39176
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 28TH DAY OF MAY 2025 / 7TH JYAISHTA, 1947
RSA NO. 656 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 07.10.2024 IN AS
NO.24 OF 2016 OF ASSISTANT PRINCIPAL SUB COURT, ERNAKULAM
ARISING OUT OF THE JUDGMENT AND DECREE DATED 18.03.2016 IN
OS NO.1271 OF 2007 OF II ADDITIONAL MUNSIFF COURT,
ERNAKULAM
APPELLANT/APPELLANT/PLAINTIFF:
K.P.MUJEEB
AGED 52 YEARS
S/O ALIPPA, ADVOCATE, RESIDING AT HOUSE NO.49/2984,
SOUTH JANATHA ROAD, PALARIVATTOM, KOCHI-682025
PRESENTLY RESIDING AT FLAT NO.7B, SILVER SQUARE
APRTMENTS, LISSY-PULLEPADY ROAD, ERNAKULAM NORTH P.O,
ERNAKULAM, PIN - 682018
BY ADVS.
SRI.SABU GEORGE
SHRI.P.B.KRISHNAN (SR.)
SRI.P.B.SUBRAMANYAN
SRI.MANU VYASAN PETER
SRI.S.V.BALAKRISHNA IYER (SR.)
RESPONDENTS/RESPONDENTS/DEFENDANTS 1 TO 3:
1 JOSEPH ALIAS J.J.KUTTIKKATTU
AGED 70 YEARS
S/O KUTTIKKATTU OUSEPH, KUTTIKKATTU HOUSE, KALOOR
DESOM, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM,
PIN - 682017
2 JESSY JOSEPH
AGED 70 YEARS
RSA Nos.639, 654 and
656 of 2024 &
OP(C)No.2859/24
8 2025:KER:39176
W/O JOSEPH ALIAS J.J. KUTTIKKATTU, KUTTIKKATTU HOUSE,
KALOOR DESOM, ELAMKULAM VILLAGE.
KANAYANNUR TALUK ERNAKULAM, PIN - 682017
3 MICHEALE FATHIMA
AGED 41 YEARS
W/O MOHAMMED NIYAS, ZEREENE, CHUTTUPADUKARA,
EDAPPALLY NORTH VILLAGE, KANAYANUR TALUK,
ERNAKULAM, PIN - 682024
BY ADVS.
SRI.P.MARTIN JOSE
SRI.P.PRIJITH
SRI.THOMAS P.KURUVILLA
SRI.R.GITHESH
SHRI.AJAY BEN JOSE
SRI.MANJUNATH MENON
SHRI.SACHIN JACOB AMBAT
SMT.ANNA LINDA EDEN
SMT.ANAVADYA SANIL KUMAR
SMT.ANJALI KRISHNA
SRI.S.SREEKUMAR (SR.)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
28.05.2025, ALONG WITH RSA.639/2024 AND CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA Nos.639, 654 and
656 of 2024 &
OP(C)No.2859/24
9 2025:KER:39176
C.R.
EASWARAN S., J.
---------------------------------------------------------
R.S.A Nos.639, 654 and 656 of 2024
and OP(C)No.2859 of 2024
---------------------------------------------------------
Dated this the 28th day of May, 2025
JUDGMENT
These second appeals and the original petition arise out of a common cause and hence, being considered and disposed of together by a common judgment.
2. The appellant has come up in these appeals aggrieved by a concurrent finding regarding a right of pathway by Trial Court as well as by the First Appellate Court. Three suits i.e. O.S.Nos.1271/2007, 1158/2007 and 1221/2007 were tried together and by common judgment and decree dated 18.03.2016, the II Additional Munsiff Court, Ernakulam, decreed the suits filed by 1st respondent and dismissed the suit filed by the appellant. Aggrieved by the Judgment and decree of the trial court, the appellant preferred three appeals AS No 19/2016, AS No 20/2016 and AS No 24/2016. All the three appeals were dismissed.
3. The brief facts necessary for the disposal of the RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 10 2025:KER:39176 appeals are as follows:
O.S.Nos.1158/2007 and 1221/2007 were filed by the respondents herein seeking for a declaration that the appellant does not have any right over an extent 4 metre pathway, except right of use. On filing of these suits, the appellant instituted O.S.No.1271/2007 for a declaration that the respondents herein does not have any right over the pathway. In the suit filed by the appellant, defendants 4 to 44 were impleaded, being the subsequent purchasers of undivided share of property held by respondents 1 and 2.
3. With the above backdrop, the facts pleaded in the plaint in each of the suits will be narrated in brief in order to appreciate the rival submissions.
Plaint averments in O.S.Nos.1158/2007 and 1221/2007:
These two suits contain common averments. The plaintiff therein purchased 11.25 cents of land in Survey No.148/2 of Poonithura Village on the west of plaint A schedule pathway from Joseph Kuttikattu with a right of way through the plaint A schedule pathway as per Document No.1657/2003 of SRO, Maradu. By the said document, it is contended that the plaintiff was given an easement by grant of using plaint A schedule RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24
11 2025:KER:39176 pathway for ingress and egress into the plaint B schedule property. The plaintiff constructed a compound wall on the eastern boundaries of the plaint B schedule property, separating A schedule pathway and put up a gate for ingress and egress to plaint A schedule property. According to them, plaint A schedule pathway is separate and distinct. The defendant, i.e.plaintiff in O.S.No.1271/2007 purchased C schedule property from Greater Cochin Development Authority (GCDA) and other properties during May - June 2007. One of the items purchased by the defendant includes the property lying on the western side of the plaint A schedule pathway and southern side of a 7 metre wide road. On 29.09.2007, the defendant attempted to construct a compound wall on the northern side of the plain A schedule property, wherein it meets with the 7 metre road so as to enclose the entire 4 metre road along with his other properties and hence the suits.
The defendant appeared in the suit and contested the suit contending that he is in absolute possession and enjoyment of 12.620 cents of land purchased by virtue of Document No.2886/2007 SRO, Maradu. A schedule pathway in the plaint is part and parcel of the property purchased by the defendant and RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 12 2025:KER:39176 hence, neither the plaintiff nor anybody under him had occasion to use the portion of the pathway. The title of the defendant on the eastern side of the property extending to 11.525 cents of land cannot be disputed by the plaintiffs and hence prayed for dismissal of the suit.
Plaint averments in O.S.No.1271/2007:
Finding that the two other suits filed may cause detriment to the appellant, he filed O.S.No.1271/2007, stating that he purchased 12.620 cents equivalent to 5.11 Ares as per Sale Deed No.2886/2007 SRO, Maradu and the 3rd defendant purchased the property in the year 2003. The property lies on the western side of the property purchased by the plaintiff and that the 3 rd defendant had already constructed a flat namely 'Regal Retreat' in the said property. The plaintiff further stated that the 3 rd defendant is constructing another apartment complex in violation of the provisions of the Kerala Building Rules. Defendants 4 to 44 are the persons who purchased 1/36 undivided share in each of the aforesaid 11.525 cents of land purchased by the 3rd defendant. The purchase of the land came to the knowledge of the plaintiff only when O.S.Nos.1158/2003 was instituted. Therefore, it is contended that the vendors to Sale Deed No.1657/2003 of SRO, Maradu had no right to convey the A schedule to the plaintiff in O.S.No.1158/2007. It was further contended that the 3rd defendant was creating an artificial right in Sale Deed RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24
13 2025:KER:39176 No.1657/2003 and the same is only a fraudulent one.
The defendants contested the suit by stating that the property was lying contiguously as a single block. While the GCDA constructed the Jawaharlal Nehru International Stadium at Kaloor in the north western side of 54.5 cents of land, the GCDA put forth a proposal for development of stadium road, which includes the formation of 7 metre wide road to the northern side of 59.500 cents commencing from the stadium and ending at north janatha junction. The GCDA had agreed to provide right of way to the 1st defendant provided the 7 metre wide pathway was formed by the 1st defendant out of 59.500 land. An agreement was entered between the GCDA and the 1st defendant and a consent deed dated 22.12.2000 was executed by the 1 st defendant agreeing to form a tar road having a width of 7 metre on the northern side of his property at his own expense. Thereafter, the 1st defendant surrendered his property on the northern side to a width of 7 metres and constructed a road. Along with the formation of the road, he also constructed another 4 metre width road on the eastern side of his property, thereby 11 cents were separated from the rest of the property. The said 4 metre width pathway divided the property into two with 11 cents of land on the eastern side and the balance on the western side. According to the 1 st defendant, the 4 metre road RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 14 2025:KER:39176 commences from 7 metre road on the north and proceeds to the south and ends in the balance property of the 1st defendant, having a length of 50 metres. There was a proposal by the Corporation of Cochin to construct a drainage in the eastern side of the 4 metre pathway. The 1st defendant as per Gift Deed no.2930/2003 gifted 11 cents of land to the GCDA, which was purchased by the plaintiff/appellant herein. On 29.09.2007, the plaintiff/appellant herein attempted to construct a compound wall on the north end of the pathway, where it meets 7 metre road so as to enclose the entire 4 metre road along with his other properties. Since the defendant obstructed and lodged a complaint before the police on 30.09.2007, the plaintiff was summoned and warned not to construct the compound wall.
4. Since all the three suits were tried together, the exhibits were also marked in common and O.S.No.1271/2007 was taken as the lead case. The plaintiff/appellant produced Ext.A1 to A18 documents, whereas the defendants produced Exts.B1 to B6. Exts.C1 to C3(a) are the Advocate Commissioner's reports and sketches. PW1 to PW4 were examined on behalf of the plaintiff and DW1 and DW2 were examined on behalf of defendants. Ext.X1 series to X4 series were the files produced from the side of GCDA and were marked RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 15 2025:KER:39176 as court exhibits. The Trial Court framed the following issues for consideration:
OS No 1271 of 2007
1. Whether plaintiff is entitled to get a decree for declaration as prayed for?
2. Whether plaintiff is entitled to get a decree for rectification of document as prayed for?
3. Whether plaintiff is entitled to get a decree for injunction as prayed for?
4. Reliefs and costs.
O.S.No.1158/2007:-
1. What is the correct identity of the plaint A and B schedule properties?
2. Whether the alleged cause of action is true?
3. Whether the plaintiff is entitled for declaration sought for?
4. Whether the plaintiff is entitled for permanent prohibitory injunction sought for?
5.Reliefs and costs.
O.S.No.1221/2007:-
1. Is the suit maintainable?
2. Whether the plaintiff is entitled for declaration sought for?
3. Whether the plaintiff is entitled for permanent prohibitory injunction sought for?
4. Reliefs and costs.
5. On appreciation of the oral and documentary evidence and also the report and plan of the Advocate Commissioner, the Trial Court concluded that the plaintiff/appellant is not entitled RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24
16 2025:KER:39176 for a declaratory decree holding that the defendants does not have any right over the 4 metre pathway therefore, O.S.No.1271/2007 was dismissed. Consequent to the aforesaid finding, O.S.Nos.1158/2007 and 1221/2007 was decreed, declaring that the appellant herein has not obtained right and title to plaint A schedule property, except a right of way and therefore, restrained him from creating any documents or encumbrances in respect of the property.
6. Aggrieved by the common judgment, the appellant preferred three appeals before the Principal Sub Court, Ernakulam. Curiously, when the appellant preferred the appeal against judgment and decree in O.S.No.1271/2007, he did not care to make defendants 4 to 44 in the party array. Therefore, the judgment and decree as against the plaintiff qua defendants 4 to 44 became final. Before the First Appellate Court, the respondents raised a contention regarding the maintainability of the appeal inasmuch as the plaintiff had given up the case against defendants 4 to 44 and therefore, the appeal preferred by the appellant herein was stated to be not maintainable.
7. The First Appellate Court, placing reliance on the decision of the Full Bench of this Court in Ammukutty Amma RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 17 2025:KER:39176 and Another v. Madhavi Amma [1971 KHC 8], held that the appeal against judgment and decree in O.S.No.1271/2007 is not maintainable. In so far as the other appeals are concerned, the First Appellate Court concurred with the findings on facts as regards the entitlement of the defendant over the plaint A schedule property (O.S.No.1271/2007) and held that the document of title in favour of the respondents herein clearly conferred an easement by grant and hence, dismissed the appeal. Against these judgments, the appellant has come before this Court.
8. Since the plaintiffs in O.S.Nos.1158/2007 and 1221/2007 were on caveat, this Court did not admit the appeal and proceeded to consider the appeal for admission on various occasions. After listing the appeal for consideration, the same was adjourned from time to time from 18.12.2024 to various dates and finally listed on 20-5-2025. On 20-5-2025, this court listed the case for consideration as agreed by both sides to 27.05.2025, and 28-5-2025 for consideration as to whether any substantial question of law arises for consideration warranting admission of appeal and further hearing.
9. Heard, Sri.S.V.Balakrishna Iyer - learned Senior RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 18 2025:KER:39176 Counsel assisted by Smt.Anusree B. appearing on behalf of the appellant and Sri.S.Sreekumar - learned Senior Counsel, assisted by P. Martin Jose, appearing on behalf of respondents. Submissions of Appellant.
10. Sri.S.V.Balakrishna Iyer - learned Senior Counsel appearing for the appellant, vehemently contended that despite the infirmities attached to the appeal preferred by the appellant against O.S.No.1271/2007, his client is entitled to canvas for the proposition that the plaintiffs in O.S.Nos.1158/2007 and 1221/2007 have to independently stand for themselves and establish the entitlement for a declaration that the appellant is not the owner of the 4 metre pathway. It is the specific case of the learned Senior Counsel that the Commissioner has not identified the property with reference to Document No.2886/2007. He took strong exceptions to Ext.C3 report and would contend that though the Commissioner was alerted about Document No.5031/2000, he did not verify the document and identify the property in terms of the measurement contained therein.
11. It is further contended by the learned Senior Counsel for the appellant that in the light of the findings of this Court in RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 19 2025:KER:39176 O.P.(C)No.1/2010 dated 22.09.2010 and also the judgment dated 14.08.2012 in O.P.(C)No.1143/2011, the Commissioner ought to have marked the entire property as such for the purpose of identifying in whose property the 4 metre pathway lies. In the light of the fact that the Commissioner has not examined the two documents, the reports cannot have any sanctity. Even the documents marked as Exts.X1 to X4 series, which are the files pertaining to the surrender of the land by the vendor of the appellant, it will be clear that the vendor never surrendered the 4 metre pathway in favour of GCDA and therefore, the appellant is the rightful owner of the property and that the 4 metre pathway comprises in Survey No.2886/2007. By referring to the provisions of Section 25(b) of the Kerala Court Fees and Suit Valuation Act, 1959, the learned Senior Counsel would contend that even in a suit preferred by the respondents for declaration, since the market value of the property has been paid, it was up to them to have established the right over the property. Thus it is prayed that the suits may be remanded back to the trial court for fresh consideration since, the commissioner has not undertaken the exercise of identifying the properties with reference to the title deeds of the RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 20 2025:KER:39176 appellant.
Submissions of Respondents.
12. Per contra, the learned Senior Counsel - Sri.S.Sreekumar appearing on behalf of the respondents assisted by P.Martin Jose would strenuously counter the argument raised on behalf of the appellant by Sri.S.V.Balakrishna Iyer and would contend that these appeals are not only vexatious, but also frivolous. The conscious act of the appellant in not impleading defendants 4 to 44 in his appeal before the First Appellate Court, and in the present appeal cannot be maintained inasmuch as R.S.A.No.656/2024 preferred against O.S.No.1271/2007 and A.S.No.24/2016 has to fail for the simple reason of non- impleadment of the necessary parties. According to the learned Senior Counsel - Sri.S.Sreekumar, once R.S.A.No.656/2024 fails, then the two other appeals will have to consequently fail, since all the judgments arise from a joint trial of the three suits.
13. The learned Senior Counsel appearing for the respondents would also further take to the agreement executed by the 3rd respondent with the GCDA, wherein he had consented to surrender his property for the purpose of creating a 7 metre pathway. Later on, 19.03.2003, the road was formed in the RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 21 2025:KER:39176 plaint schedule property. Ext.A6 deed dated 23.01.2003 would specifically show that the eastern boundary in the aforesaid deed is the 4 metre pathway. It is subsequent to Ext.A6, that the plaintiff in O.S.No1158/2007 derived the right, title and interest over 11 cents by virtue of Ext.A2 deed which was executed in the year 2003. Therefore, it is pointed out that a reading of Ext.A2 would clearly show that an easement of grant has been made in favour of the respondents.
14. Lastly, it is pointed out that with reference to Ext.C3(a) sketch, the Commissioner had identified the entire extent of property held by the original vendor as per the Partition Deed No.381/1975. After measuring the entire property with reference to the subsequent documents, it was found that there is no other property left out. Therefore, the irresistible conclusion is that the right, title and interest claimed by the appellant as per Ext.A1 is over a non-existent land, thereby indicating that the said document is fraudulently created. Hence the learned Senior Counsel asserted that no substantial question of law arises for consideration in these appeals.
15. I have considered the rival submissions raised across the Bar.
RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 22 2025:KER:39176
16. Since the respondent appeared on caveat, the appeal was heard on the question of admission. Though the Learned Senior Counsel would point out that the substantial question of laws as framed in the appeal arises for consideration, the Learned Senior Counsel for respondents would contend that no such substantial question arises for consideration. Since the parties are at variance, as regards the question as to whether any substantial question of law arises for consideration in the appeal, the prime consideration which this court is bestowed is as to whether any substantial question of law arises for consideration. On a close analysis of the arguments raised by both sides, if it is found that there arises a substantial question of law, then this court is bound to frame such questions and grant opportunity to the parties to address further argument on the same. primary concern of this court, while considering these appeals, to decide whether any substantial question of law arises for consideration or not.
17. According to the Learned Senior Counsel, the following question of law as raised in the memorandum of appeal arises for consideration. The same is extracted hereunder:
"A. When it is established from the documents produced that after the transfers made by Defendant No.1 till 2003 there RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 23 2025:KER:39176 existed no property left with him in Sy.No.148/2 to set apart 4 meter wide pathway having 50 meter length (2 Ares =4.942 Cents) as claimed by the Plaintiff, have not the Courts below erred in decreeing the suit, O.S. 1158/2007 filed by the Respondent?
B. While the contention of the defendant that there exists no such pathway as claimed by the Plaintiff as the same was not established by the vendor, whether the Courts below were right in not adjudicating the same after framing an issue with respect to the very existence of the pathway as claimed by the plaintiff?
C. In view of the fact that even if the right of pathway is allotted to a person by the title holder the title of the land remains with him and he is entitled to transfer the same, has not the First Appellate Court erred in holding that the Appellant has no title over the disputed pathway, but only a right of way? D. Has not the First Appellate Court erred in considering all the 12 issues framed by it together?
E. Has not the First Appellate Court erred in not considering the title deeds of the properties transferred by Defendant No.1 to Defendant No.2 along with another document produced by the Appellant along with I.A No.8 of 2024, which was unopposed, to prove the non existence of the alleged pathway?
F. Even though the Appellant had challenged Ext-C3 and C3(a), the Commissioner's report and Plan, whether the First Appellate Court was right in not considering whether the Trial Court has committed any error in not considering the objections of the Appellant?
G. Whether the First Appellate Court is justified in confirming the decree and judgment rendered by the Trial Court ? H. Has not the First Appellate Court failed to exercise the jurisdiction vested in it under Section 96 and Order 41 Rule 31 of the Code in a legal and proper manner?
I. Has not the First Appellate Court made an essentially wrong approach to the whole case? "
18. Before proceeding further, it must be remembered that this court need not always accept the question of law as framed in the memorandum of appeal. The court can suo motu frame RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 24 2025:KER:39176 the question of law, if it feels that the Substantial question of law as such framed does not arise for consideration, but on the face of arguments advanced, a different question of law ought to be framed. In such circumstances, going by the provisions contained under sub section (4) of Section 100, the court can by itself frame the questions of law. Therefore while undertaking the exercise aforesaid, this court needs to address the said issue as well.
19. Thus it is clear that, for an appeal to be admitted under Section 100 of the Code of Civil Procedure 1908, there must be a substantial question of law. But, what is a substantial question of law? The code does not define the same. The word 'substantial' being prefixed to the word 'question of law' does not refer to the magnitude of the issues involved in the case, but would depend on the question of law of general importance or impact or the effect of question of law on the lis between the parties. However, it must be remembered that the point of law already decided by the Supreme Court or the High Court which forms the basis of the decision of the lower courts cannot be construed as one falling within the definition of 'Substantial question of law', since there is nothing more to be decided by the High Court RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 25 2025:KER:39176 inasmuch as the question already stood decided by the High Court in an earlier case. But, this statement of law is often misunderstood. To put it in correct perspective, once the lower court applies the law laid down by the Supreme Court or the High court as the case may be correctly to the facts, no substantial question of law arises. However, there may be cases, where the lower courts tend to apply the law enunciated by the Supreme Court or the High court incorrectly based on a wrong comprehension of the issue involved. In such cases, it has to be held that there arises 'Substantial question of law' for consideration. In certain cases, the appreciation of evidence will be perverse. In those cases also it can be said that 'substantial question of law' arises for consideration in the appeal.
20. In the above backdrop, this court proceeds to test the submissions of the Learned Senior Counsel for the appellant. The crux of the argument of Sri.S.V.Balakrishna Iyer - learned Senior Counsel appearing on behalf of the appellant is that despite the inherent defects, if any, as regards the maintainability of A.S.No.24/2016, still it is for the plaintiffs in O.S.Nos.1158 and 1221/2007 to independently establish that they were entitled for the declaration as sought for. Therefore, in RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 26 2025:KER:39176 the light of specific submissions of the Learned Senior Counsel it must be taken as if the appellant concedes to the defect in sustaining the A.S.No 24 of 2016 because of non impleadment of defendants 4 to 44 as shown in the suit OS No 1271 of 2007. That be so, this court has to hold that the judgment and decree dismissing the suit OS No 1271 of 2007 has become final. In the light of the findings in OS No 1271 of 2007, can the appellants sustain his challenge to the Judgment and decree in OS No 1158 of 2007 and OS No 1221 of 2007 forms the crux of the issue to be considered by this court.
21. Though, it may appear that the argument of the Learned Senior Counsel for appellant ,may prima facie appear worthy of consideration, on a deeper consideration, it shows that there are inherent defects. When the prayer sought for in O.S.No.1271/2007 is closely scrutinised, it reveals that the Appellant never sought for a declaration of his title. The reading of the relief portion in O.S.No.1271/2007 shows that the following reliefs are sought for:
"(a) Pass a decree declaring that the defendants have no right to use the plaint schedule property as a pathway;
(b) Pass a decree rectifying Sale Deed No.1657/2003 of the S.R.O., Maradu by deleting the recital "with the right of way over the 4 meter width private mud road on the eastern side up to the public road with the right to take RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 27 2025:KER:39176 vehicles, electric, water and telephone connection through the said road and all rights thereof " and the eastern boundary description may be rectified as remaining property of the vendors" instead of "4 meter width private mud road " and communicate the same to the S.R.O., Maradu;
c) Pass a decree for mandatory injunction, commanding defendants 3 to 44 to remove the gate fixed on the eastern boundary of their property within such time as may be fixed by this Honourable Court, failing which the plaintiff may be allowed to remove the same through the process of this Honourable Court and recover the expenses thereof from defendants 3 to 44;
(d) Pass a decree for permanent prohibitory injunction, restraining defendants 3 to 44, their men and agents from trespassing into the plaintiff's property, from cutting open any pathway through the said property, from creating any document showing the plaint schedule property as a pathway and from doing any act which is detrimental to the plaintiff's right, title, interest and possession over this property;
(e) Order the defendants to pay the entire costs of the suit to the plaintiff;
(f) Grant such other reliefs as may be prayed for by the plaintiff and which the court deems fit and proper during the course of the trial of the suit."
22. The first prayer sought for is for a declaration that the defendants have no right over the 4 metre pathway and other consequential reliefs that flows out of the first relief. It is pertinent to mention that at no point of time, the appellant had claimed a decree for fixation of boundary and declaration of his title. The essence of the contention in the plaint RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 28 2025:KER:39176 O.S.No.1271/2007 is that the appellant is the owner of 4 metre pathway, for which no declaration was sought for. The first relief, which is framed in a negative manner, cannot help the cause projected by the appellant especially when defendants were successful in establishing an easement by grant. In the absence of any declaratory relief sought for, much less fixation of boundary by identifying the property with reference to Sale Deed no.2886/2007, this Court is firm in its view that the suit as such framed by the appellant was completely misconceived and erroneous.
23. Added to that, the conscious act of the appellant in giving up the challenge in respect of the judgment and decree against defendants 4 to 44 is fatal to the entire case. A Division Bench of this Court in Gopala Pillai v. Chellappan Pillai [1966 KHC 282], held that in the absence of necessary parties to the appeal, the appeal has to fail. Following this decision, a Full Bench of this Court in Ammukutty Amma (supra) held that, in an appeal against a decree dismissing the suit against all defendants, when an appeal is made only against one of the defendants as party, it will give to conflicting that the appeal is not properly constituted.
RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 29 2025:KER:39176
24. In Rameshwar Prasad and Others v. Shambehari Lal Jagannath and Another [AIR 1963 SC 1901], the Supreme Court summarized the principle governing Order XVl Rule 4 of the Code of Civil Procedure, 1908 and held that in the absence of all parties to the suit in the appeal, it will be against the scheme of the code to hold that order 41 rule 4 empowers a court to pass decree in favour of the appellant with the surviving parties in the appeal. Though the Hon'ble Supreme Court was concerned about the abatement of the appeal for non- impleadment of one of the appellants in the appeal, this Court is of the considered view that the principles laid down by the Hon'ble Supreme Court squarely applies to the facts of the case.
25. Viewed in the above perspective, this Court cannot but hold the appeal preferred by the appellant as A.S.No.24/2016 was clearly not maintainable and the First Appellate Court rightly declined to entertain the aforesaid appeal. Resultantly, once the judgment and decree in O.S.No.1271/2007 becomes final, the challenge against the judgment and decree in O.S.Nos.1158/2007 and 1221/2007 has to fail in the light of the decision of the Hon'ble Supreme Court in Premier Tyres Ltd. v Kerala State Road Transport Corporation [1993 Supp (2) RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 30 2025:KER:39176 SCC 146]. Therefore, it is held that the appeal preferred by the appellant against O.S.No.1271/2007 was not maintainable and this Court finds no error in the judgment of the First Appellate Court.
26. In the light of the decision in Premier Tyres (supra), it is held that the appeal against the other two suits, namely O.S.Nos.1158/2007 and 1221/2007 also has to fail. In the light of the compelling facts as disclosed from a reading of the plaint in O.S.No.1271/2007, which discloses that the plaintiff - appellant has not sought for any declaration of his title, nor has he chosen to get his property identified and demarcated with reference to Ext.A1 Sale Deed.No.2886/2007, the irresistible conclusion is that the entire claim of the appellant that 4 metre pathway falls within the property conveyed to him as per Ext.A1 document has to fail. This Court cannot but notice the fact that the plaintiff did not summon his vendor in order to prove that what was conveyed by his vendor was right, title and interest over the 4 metre pathway.
27. There is yet another reason why this Court should hold against the appellant. From the materials produced before the Trial Court, it is evident that the vendor had decided to RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 31 2025:KER:39176 dedicate his property for the purpose of creating or carving out the 4 metre pathway for the purpose of the easementary rights of the parties. That be so, after expressing a clear indication and giving an easementary right to the respondents by way of grant while transferring the property to by virtue of document no 1657 of 2003, there cannot be a conveyance of the right, title and interest over the aforesaid extent of land to a third person. It is in this context, the failure of the appellant as plaintiff in OS No 1271 of 2007 to sue for declaration of his rights qua document no 2886 of 2007 and fixation of boundary and the failure to examine his vendor should be held against him. Viewed in the above perspective, this Court cannot, but hold that the plaintiff miserably failed to establish his case.
28. Lastly, it is contended by learned Senior Counsel for the appellant - Sri.S.V.Balakrishna Iyer, that the Advocate Commissioner has not demarcated the property in accordance with the directions of this Court in OP(C)No.1143/2011, this Court needs to consider a crucial aspect, as to whether there was a direction from this Court to demarcate the property based on the title deed of the appellant - plaintiff in O.S.No.1271/2007 also. Read as may, this Court could not find any such direction RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 32 2025:KER:39176 being issued by this Court in the judgment dated 14.08.2012 in O.P.(C)No.1143/2011. What was required by this Court to be done by the Advocate Commissioner was to demarcate the property with reference to three documents: Partition Deed No.381/1975, Sale deed No.1657/2003 and Gift Deed No.2930/2003. At any rate, the appellant, was admittedly present when the Advocate Commissioner visited the property and proceeded to demarcate the same. If the appellant had any grievance that his property should also be demarcated and identified, he could have very well sought assistance of the Advocate Commissioner by filing a suitable work memo. Even otherwise, it is an admissible fact that no such work memo was filed inasmuch the Advocate commissioner had identified the property and prepared a sketch in terms of the directions contained in Judgment 14.08.2012 in O.P.(C)No.1143/2011 with reference to Document No.381 of 1975, the appellant cannot have further grievance.
29. Once the Commissioner undertook the aforesaid exercise, it became clear that the vendor of the appellant as well as the respondents herein had only 59 cents of land out of 79 cents. Admittedly, 20 cents of land was given as 'kudikiddapu'. RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 33 2025:KER:39176 Therefore, a cursory glance of Ext.C3(a) plan shows that the entire 59 cents has been identified by the Commissioner. If that be so, it becomes evident that the vendor of the appellant had no other property left for transfer to the appellant. Admittedly, appellant obtained the property by virtue of document No.2886/2007, which is the last document executed by the vendor. The irresistible conclusion is that the vendor had no other property left for the same to be alienated by him. This finding of fact has been concurrently found by the Trial Court as well as by the First Appellate Court. There is nothing on record to even remotely suggest that the findings are perverse and are against the material evidence. Therefore, it is held that the finding rendered by the Trial Court as well as by the First Appellate Court with reference to Exts.C(3) and C3(a) plan is proper and therefore, this court is of the considered view that none of questions sought to raised on behalf of the appellant will fall with the category of substantial question of law. On contrary, what is attempted before this court is for an entire reappreciation of concurrent finding of fact which is impermissible under Section 100 of the Code of Civil procedure 1908.
RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 34 2025:KER:39176
30. The Supreme Court in Madamanchi Ramappa and another Vs Muthaluru Bojappa and others [AIR 1963 SC 1633] held that admissibility of evidence is no doubt a point of law. But once it is shown that the evidence relied on by the courts below are admissible and relevant, it is not open for the party feeling aggrieved by the findings recorded by the court to contend in a second appeal that the evidence recorded is not sufficient to justify the findings recorded.
31. On an overall appreciation of the arguments of the learned Senior Counsel for the appellant, it is seen that the arguments basically hinges on the sufficiency of evidence, namely Ext.C3 report and Ext.C3(a) plan prepared by the advocate commissioner, based on which the trial court decreed the suit against the appellant and further the substantial questions of law sought to be raised are based on the said insufficiency of the evidence.
32. As an upshot of these discussions, this Court finds that there arises no substantial question of law for consideration and thus the appeal lacks merit and accordingly, the regular second appeals are dismissed. Consequently, the respondents are entitled to costs.
RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 35 2025:KER:39176 O.P.(C)No.2859/2024
33. The relief sought for in the original petition is to set aside Ext.P6 order.
34. After the decree was passed by the trial court, it is alleged that the appellant violated the same. Hence execution petition was filed. In the execution petition, the executing court appointed an advocate commissioner to verify the extent of violation. The advocate commissioner reported that the petitioner herein violated the decree. By Ext.P6 order, the executing court permitted the decree holders with aid of the advocate commissioner, to have the plaint schedule property restored by filling the pits and leveling the same by paving the tiles. The petitioner challenges the aforesaid order on the ground that no order of delivery was passed in the execution petition. The order passed by the executing court amounts to disposal of the execution petition itself.
35. On an overall consideration of the submissions, this Court is not persuaded to interfere with the order passed in Ext.P6. The rights of the appellant over the pathway has been categorically found against by two courts concurrently and this court has found that no substantial question of law arises for RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 36 2025:KER:39176 consideration in the appeal and accordingly has dismissed the appeals. Consequently, it becomes imperative for this Court to hold that Ext.P6 order does not suffer from any material irregularity or jurisdictional infirmities, which require this Court to interfere with the same in exercise of its powers conferred under Article 227 of the Constitution of India.
Accordingly, the original petition fails and the same is dismissed. No costs.
Sd/-
EASWARAN S. JUDGE ACR RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 37 2025:KER:39176 APPENDIX OF OP(C) 2859/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 18-03-2016 IN O.S.NO. 1158/2007 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, ERNAKULAM Exhibit P2 TRUE COPY OF THE EP NO. 16/24 IN O.S. NO.
1158/2007 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, ERNAKULAM Exhibit P3 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 11-04-2024 IN EP NO. 16/24 IN O. S. NO.
1158/2007 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, ERNAKULAM Exhibit P4 TRUE COPY OF THE EA NO.264/24 IN EP NO.
16/24 IN O. S. NO. 1158/2007 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, ERNAKULAM Exhibit P5 TRUE COPY OF THE STAY ORDER DATED 12-04-24 IN AS 19/16 IN OS 1158/2007 ON THE FILE OF THE SUB COURT, ERNAKULAM Exhibit P6 . TRUE COPY OF THE ORDER DATED 12-04-24 IN EA NO.264/24 IN EP NO. 16/24 IN O. S. NO.
1158/2007 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, ERNAKULAM Exhibit P7 TRUE COPY OF THE SCREENSHOT OF THE ORDER DATED 21-11-2024 IN EP NO.16/24 IN O. S. NO. 1158/2007 ON THE FILE OF THE PRINCIPAL MUNSIFF COURT, ERNAKULAM RSA Nos.639, 654 and 656 of 2024 & OP(C)No.2859/24 38 2025:KER:39176 APPENDIX OF RSA 656/2024 PETITIONER ANNEXURES Annexure A ORIGINAL COPY OF THE ORDER OF THE KOCHI CORPORATION BEARING NO.EYPI-00071/2023 DATED 26-12-2023, OBTAINED UNDER THE RTI ACT, 2005 Annexure B THE SKETCH OBTAINED UNDER THE RTI ACT, 2005 FROM THE CORPORATION OF KOCHI