Kerala High Court
Parameswaran Pillai Omanakumar vs Parameswaran Pillai Gopakumar And ... on 14 January, 2026
2026:KER:4443
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
WEDNESDAY, THE 14TH DAY OF JANUARY 2026 / 24TH POUSHA, 1947
RSA NO. 1400 OF 2011
AGAINST THE JUDGMENT AND DECREE DATED 17.09.2009 IN AS
NO.274 OF 2007 OF ADDITIONAL DISTRICT COURT-III, KOLLAM
ARISING OUT OF THE JUDGMENT AND DECREE DATED 21.07.2007 IN
OS NO.700 OF 2004 OF ADDITIONAL MUNSIFF COURT, KOLLAM
APPELLANT/APPELLANT/PLAINTIFF:
PARAMESWARAN PILLAI OMANAKUMAR
AGED 54, THACHANTAYYATHU VEEDU, KUREEPUZHA
CHERRY,, NOW RESIDING AT SREE GEETHAM VEEDU,
KUREEPUZHA CHERRY, SAKTHIKULANGARA VILLAGE,
KOLLAM.
BY ADVS.
SHRI.G.SREEKUMAR (CHELUR)
SRI.K.RAVI (PARIYARATH)
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 PARAMESWARAN PILLAI GOPAKUMAR AND ANOTHE
THACHANTAYYATHU VEEDU, KIZHAKE VEEDU,, KUREEPUZHA
CHERRY, SAKTHIKULANGARA VILLAGE,, KOLLAM-691 001.
2 PARAMESWARAN PILLAI MOHANKUMAR (DIED & LHRS
IMPLEADED)
THACHANTAYYATHU VEEDU, NOW RESIDING AT,
INDEEVARAM VEEDU, KUREEPUZHA CHERRY,,
SAKTHIKULANGARA VILLAGE, KOLLAM-691 001.
ADDL.R3. INDULEKHA,
AGED 52 YEARS
W/O. LATE. PARAMESWARAN PILLAI MOHANA KUMAR,
INDIEEVARAM, KURIYAPUZHA, KAVANADU, KOLLAM, PIN-
691003.
R.S.A.No.1400/2011
2
2026:KER:4443
ADDL.R4. ATHIRA MOHAN,
AGED 26 YEARS
D/O. LATE. PARAMESWARAN PILLAI MOHANA KUMAR,
INDIEEVARAM, KURIYAPUZHA, KAVANADU, KOLLAM, PIN-
691003.
ADDL. R5. MALAVIKA MOHAN,
AGED 20 YEARS
D/O. LATE. PARAMESWARAN PILLAI MOHANA KUMAR,
INDIEEVARAM, KURIYAPUZHA, KAVANADU, KOLLAM, PIN-
691003. LEGAL HEIRS OF DECEASED 2ND RESPONDENT
ARE IMPLEADED AS ADDITIONAL APPELLANTS 3 TO 5 AS
PER ORDER DATED 15.12.2025 I N IA 1/2020.
BY ADVS.
SHRI.S.RAMESH BABU (SR.)
SRI.C.UNNIKRISHNAN (KOLLAM)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
14.01.2026, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
R.S.A.No.1400/2011
3
2026:KER:4443
EASWARAN S., J.
---------------------------------------------------------
R.S.A No.1400 OF 2011
---------------------------------------------------------
Dated this the 14th day of January, 2026
JUDGMENT
This appeal is preferred by the plaintiff, aggrieved by the concurrent findings in O.S.No.700/2004, a suit for injunction, on the files of Additional Munsiff Court, Kollam, as affirmed in A.S.No.274/2007 by the Additional District Court-III, Kollam.
2. The brief facts necessary for the disposal of the appeal are as follows:
2.1. The plaint A schedule property belonged to the plaintiff vide Will No.109/90. The property of the 2 nd defendant lies to the north of plaint A schedule property. The property of the 1 st defendant lies further to the north of 2 nd defendant's property. A pathway having a width of 14 ft. is provided under the Will and is lying on the western side of the 1st defendant's property, which is scheduled as C schedule to the plaint. There is a public road leading to Vallikeezh Girl's High School on the west and that the C schedule pathway turns towards west from the north western corner of the 1st defendant's property and it leads toward the western public road. The plaintiff and defendants purchased the B R.S.A.No.1400/2011 4 2026:KER:4443 schedule pathway vide Sale Deed No.2092/2000 for ingress and egress to their properties. So the plaintiff claims right over C schedule pathway as per the terms of Will and also right over B schedule pathway as per Sale Deed No.2092/2000.
2.2. The defendants resisted the suit contending that, C schedule way described in the plaint is against the terms in Will No.109/90. It was also contended that the plaintiff destroyed the said pathway and tried to make a pathway as described in plaint C schedule. The pathway in question does not have a width of 14 feet and that it has only a width of 3 links. The 2nd defendant also resisted the suit by raising contentions in similar lines.
2.3. On behalf of the plaintiffs, Exts.A1 to A3 documents were produced and PW1 was examined. On behalf of the defendants, Exts.B1 to B3 documents were produced and DW1 was examined. Ext.C1 is the report of the Advocate Commissioner, wherein he found the existence of a 12 feet pathway having a length of 64 feet. The trial court, on appreciation of oral and documentary evidence, came to the conclusion that there is no need for the plaintiff to access the pathway in question as scheduled in C schedule to the plaint, since he has an alternate way. Therefore, on the ground that the C schedule property is not identifiable in terms of the Will, the suit was dismissed. Aggrieved, the plaintiff preferred A.S.No.274/2007 before the Additional R.S.A.No.1400/2011 5 2026:KER:4443 District Court-III, Kollam, which was also dismissed by judgment dated 17.09.2008 and hence, the present appeal.
3. On 18.11.2014, this Court admitted the appeal on the following substantial questions of law framed in the memorandum of appeal:
i. Is it not the for the courts below to appreciate the fact that the right claimed by the plaintiff is traced to Exts Al and A2, and reading the same along with the existence of the pathway with a width of 12 feet as noted by the advocate commissioner, was not the plaintiff entitled for a relief of injunction? ii. Is it not wrong for the courts below to find that since there is an alternate pathway, the plaintiff is not entitled for the relief? iii. Was it not for the courts below to grant a lesser relief to the plaintiff than what was sought for?
iv. Is not the appreciation of the evidence and the pleadings done in a perverse manner by the courts below thus requiring interference by this Hon'ble court?
4. Heard, Adv.Sreekumar G (Chelur) - learned counsel appearing for the appellant. None appeared for the respondents.
5. Adv.Sreekumar G (Chelur) - learned counsel appearing for the appellant, contended that the findings rendered by the courts below are perverse, inasmuch as the dismissal of the suit was solely on the ground that plaint C schedule property was not R.S.A.No.1400/2011 6 2026:KER:4443 identifiable in terms of the description therein and that the Will does not describe the pathway in much terms. He further submitted that the availability of an alternate way is not a bar for the plaintiff to assert his right of easement by grant in a Will. If, as a matter of fact, the pathway as described under C schedule is not in existence, inasmuch as the Advocate Commissioner has found that the C schedule pathway has a width of 12 feet and a length of 64 feet, the trial court could have moulded the relief and granted a lesser relief to the plaintiff.
6. I have considered the rival submissions raised across the Bar and have perused the judgments rendered by the courts below and also the records of the case.
7. The question that falls for consideration of this Court, is as to whether the plaintiff is entitled to maintain a suit for injunction on the basis of a right of easement by grant under a Will. It is beyond doubt that an easement by grant can be created through a testamentary disposition like a Will. Even otherwise, the defendants also trace their title under the Will and also have the equal right to access the pathway. The only question to be considered is whether the pathway as described under C schedule is in existence.R.S.A.No.1400/2011
7
2026:KER:4443
8. When the description of the pathway is not mentioned in Will No.109/90 and that the Advocate Commissioner on local inspection has found the existence of a pathway having a length of 64 feet and width of 12 feet, necessarily the trial court ought to have decreed the suit in terms of the findings rendered by the Advocate Commissioner.
9. It is pertinent to mention that the objection of the defendants is as regards the existence of the 14 feet pathway and that they had specifically raised a plea that only a 3 links width pathway is in existence, which has been belied by the findings of the Advocate Commissioner in Ext.C1 report. That be so, this Court cannot fathom the reason as to why the courts below concluded that, because of the existence of an alternate way which the plaintiff has purchased, his right of easement by grant under a testamentary disposition should be declined.
10. Resultantly, the substantial questions of law raised in the memorandum of appeal are answered as follows:
a. The courts below failed to appreciate the fact that the right claimed by the plaintiff is traced to Ext.A1 and A2 and that an easement by grant is made out. Coupled with the fact that existence of a 12 feet width pathway having a 64 feet length as R.S.A.No.1400/2011 8 2026:KER:4443 evidenced from Ext.C1, would certainly entitle the plaintiff to claim a relief of injunction.
b. The presence of an alternate way is not a bar to assert a right of easement by grant.
c. The courts below ought to have granted a lesser relief to the plaintiff in the light of Ext.C1 report.
Accordingly, this appeal is allowed by reversing the judgment and decree dated 21.07.2007 in O.S.No.700/2004 on the files of Additional Munsiff Court, Kollam, as affirmed in A.S.No.274/2007 by the Additional District Court-III, Kollam. Resultantly, the suit will stand decreed and the appellant/plaintiff is granted a decree of permanent prohibitory injunction, restraining the defendants from obstructing the right of the plaintiff to access the C schedule pathway having an extent of 64 x 12 feet. Cost made easy.
Sd/-
EASWARAN S, JUDGE ACR