Kerala High Court
Kunju vs Joby on 15 November, 2024
RSA NO. 416 OF 2024
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2024:KER:85693
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 15TH DAY OF NOVEMBER 2024 / 24TH KARTHIKA, 1946
RSA NO. 416 OF 2024
AGAINST THE JUDGMENT DATED 17.12.2022 IN AS NO.33 OF 2020 OF SUB
COURT, MUVATTUPUZHA
ARISING OUT OF THE JUDGMENT DATED 15.01.2020 IN OS NO.627 OF 2013
OF MUNSIFF COURT, MUVATTUPUZHA
APPELLANTS/RESPONDENTS/DEFENDANTS:
1 KUNJU
AGED 65 YEARS
S/O. KELAN, NEDUMATTATHILKARAYIL HOUSE, PALAKUZHA KARA,
PALAKUZHA VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.,
PIN - 686661
2 VILASINI
AGED 60 YEARS
W/O. KUNJU, NEDUMATTATHILKARAYIL HOUSE, PALAKUZHA KARA,
PALAKUZHA VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.,
PIN - 686661
BY ADVS.
T.O.XAVIER
V.SETHUKUTTY AMMA
RSA NO. 416 OF 2024
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2024:KER:85693
RESPONDENT/APPELLANT/PLAINTIFF:
JOBY
AGED 52 YEARS, S/O. VARGHESE, MUKTHIYARUVELIL HOUSE,
PALAKUZHA KARA, PALAKUZHA VILLAGE, MUVATTUPUZHA TALUK,
ERNAKULAM DISTRICT., PIN - 686661
BY ADVS.
C.DILIP
JIJO JOSEPH(K/2758/1999)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
15.11.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA NO. 416 OF 2024
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2024:KER:85693
JUDGMENT
1. The defendants in a suit for recovery of possession, mandatory injunction and permanent prohibitory injunction are the appellants herein. The suit was dismissed by the Trial Court. On appeal filed by the plaintiff, the suit was decreed in part.
2. The case of the plaintiff is that the plaintiff derived the plaint schedule property as per Ext.A1 Settlement Deed. On the south-eastern side of plaint schedule property, the property of the defendants is situated. There is a pathway having a width of 2 feet on the southern side of the plaint schedule property which has been used by the defendants. The defendants attempted to increase the width of the pathway by trespassing upon the southern side of the plaint schedule property by putting new slabs on the starting point of the pathway for crossing the canal. After the filing of the suit and before the execution of the commission, the defendants trespassed into the plaint schedule property and widened the pathway, taking RSA NO. 416 OF 2024 4 2024:KER:85693 6 feet of width from the plaint schedule property. The said property trespassed by the defendants is to be recovered from the defendants and the slabs illegally put across the canal are to be removed through a decree of mandatory injunction.
3. The suit was resisted by the defendants by filing a written statement contending, inter alia, that there is a pathway having 8 feet width through the southern side of the plaint schedule property. The said way is the only way to the property of the defendant. Originally, the width of the way was 3 - 3.5 feet. The plaintiff filed O.S.440/2005 against the first defendant and others and the said suit was dismissed. Thereafter, in mediation in the year 2007, the width of the way was increased from 3 - 3.35 to the width of 8 feet width and the defendants have been using the said pathway. The Trial Court dismissed the suit holding that the plaintiff did not schedule the property sought to be recovered; that the property sought to be recovered was not identified through survey measurement that; without identifying the 2 feet width way on the extreme south and the RSA NO. 416 OF 2024 5 2024:KER:85693 6 feet width portion on the further north of it, no decree could be passed; and that the 8 feet width pathway is not a newly constructed pathway as reported by the Advocate Commissioner.
4. On the appeal filed by the plaintiff, the First Appellate Court found that the defendants are claiming easement by prescription over the pathway and it is admitted in Ext.A7 written statement 24.11.2005 in the earlier suit that the first defendant is entitled to get the pathway having a width of 3.5 feet. The first defendant has not stated as to how the width of the pathway was increased thereafter. With respect to the relief of recovery of possession and mandatory injunction, the First Appellate Court did not interfere as the plaintiff did not identify the plaint schedule property. Accordingly, the First Appellate Court set aside the judgment and decree passed by the Trial Court and decreed the suit granting a permanent prohibitory injunction restraining the defendants and their men from making any alteration in the plaint schedule property or RSA NO. 416 OF 2024 6 2024:KER:85693 widening the 3.5 feet width way on the south of the plaint schedule property or destroying the boundaries of the plaint schedule property or committing any act of waste therein. It is further directed that the decree shall not restrict the right of the defendants to use the 3.5 feet width way on the south of the plaint schedule property.
5. I heard the learned counsel for the appellants and the learned counsel for the respondent.
6. The learned counsel for the appellants contended that the defendants are entitled to get an 8 feet width pathway on the southern side of the plaint schedule property as the same is found by the Advocate Commissioner.
7. On the other hand, the learned counsel for the respondent submitted that there is no evidence to prove the easement by prescription as claimed by the appellants.
8. On going through the pleadings and evidence, I find that in the earlier suit the defendant has specifically contended that the pathway in question is having a width of 3.5 feet width. The RSA NO. 416 OF 2024 7 2024:KER:85693 written statement filed in the earlier suit is dated 24.11.2005. The present suit is filed in the year 2013. The defendant has not stated as to when the width of the pathway is increased to 8 feet. In the absence of this evidence, the defendant could not claim easement by prescription over the pathway having a width of 8 feet. Even assuming that the width of the pathway was increased subsequent to 2005, the defendant will not be able to prove the enjoyment of the pathway for the statutory period since the suit was filed in the year 2013. The Advocate Commissioner has also prepared only a rough sketch, which would not reveal even the width of the pathway. There is nothing to prove before the court to prove the width of the pathway claimed by the defendant. In view of the circumstances, I do not find any reason to interfere with the judgment passed by the Trial court, and the Appellate Court.
9. Accordingly, the Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM
Shg/x JUDGE