Kerala High Court
Jisha vs Jayasree on 24 September, 2024
RSA NO. 459 OF 2024 1 2024:KER:71090
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY,THE 24TH DAY OF SEPTEMBER 2024/2ND ASWINA, 1946
RSA NO. 459 OF 2024
AGAINST THE JUDGMENT DATED 14.12.2023 IN AS NO.81 OF
2019 OF ADDITIONAL DISTRICT COURT (ADHOC), KOLLAM
ARISING OUT OF THE JUDGMENT DATED 12.04.2019 IN OS
NO.1041 OF 2013 OF PRINCIPAL MUNSIFF COURT, KOLLAM
APPELLANT/APPELLANT/PLAINTIFF:
JISHA, AGED 29 YEARS, D/O VASUDEVAN
PILLAI,NISHA MANDIRAM,CHANDANATHOPE P.O,KOLLAM-
REPRESENTED BY POWER OF ATTORNEY HOLDER MOTHER
VALSALA AMMA, AGED 60 YEARS, W/O VASUDEVAN
PILLAI, NISHA MANDIRAM, CHANDANATHOPE.P.O,
KOLLAM, PIN - 691014
BY ADVS.
R.KISHORE (KALLUMTHAZHAM)
AMAR S.R.
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 JAYASREE, AGED 32 YEARS, W/O JAYACHANDRAN,
RAJAMMA NIVAS, CHANDANATHOPE.P.O, KOLLAM, PIN -
691014
2 JAYACHANDRAN
AGED 45 YEARS
RAJAMMA NIVAS, CHANDANATHOPE.P.O, KOLLAM, PIN -
691014
RSA NO. 459 OF 2024 2 2024:KER:71090
3 JYOTHISH
AGED 20 YEARS
S/O JAYACHANDRAN, RAJAMMA NIVAS, CHANDANTHOPE
P.O, KOLLAM, PIN - 691014
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 24.09.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
RSA NO. 459 OF 2024 3 2024:KER:71090
JUDGMENT
1. The plaintiff in a suit for declaration of easement by prescription and consequential injunction is the appellant.
2. As per Plaint averments, the plaintiff derived plaint A schedule property as per Ext.A2 document of the year 2007. A public road is situated on the southern side of the Plaint A Schedule property. The plaint B schedule pathway is having a width of two metres is used by the plaintiff for accessing the plaint A schedule property from the public road. Plaint B schedule pathway was kept apart from the date of execution of Ext.B1 Partition Deed of the year 1966. The plaint C schedule property belonged to the 1 st defendant. The defendants are attempting to obstruct plaint B schedule pathway. Hence the plaintiff sought for decree for declaration of easement by prescription over plaint B schedule pathway and also for permanent prohibitory injunction to restrain the defendants from reducing the width of plaint B schedule pathway, from encroaching into the RSA NO. 459 OF 2024 4 2024:KER:71090 pathway, from removing survey stones, from altering the present physical boundaries and from committing any act of waste in the plaint B schedule pathway.
3. The 1st defendant alone filed Written Statement. He raised a Counter Claim also. According to the 1 st defendant, the 1st defendant alone is having property on the side of plaint B schedule pathway which is having a width of 3 links only. The defendants 2 to 3 are unnecessary parties in the suit. The plaintiffs has got right only over a pathway having a width of 3 links. The plaintiff filed the suit after demolishing the survey stones and after enhancing the width of the pathway to 2 meters. The 1st defendant derived the Counter Claim Item No.1 property as per Ext.B4 document of the year 1992. The property of the 1 st defendant encroached by the plaintiff to widen the way is included as Counter Claim Item No.2. The 1 st defendant sought for declaring his title over Counter Claim Item No.1 and to recover the possession of Counter Claim Item No.2 RSA NO. 459 OF 2024 5 2024:KER:71090 property from the plaintiff and a decree for fixing the boundaries Counter Claim Item Nos.1 and 2 properties and for a decree of permanent prohibitory injunction with respect to the Counter Claim Item No.1 property.
4. The Trial Court dismissed the suit and decreed the Counter Claim finding that the width of the pathway is only 3 links, fixing the 'LM' line shown in Ext.C2(b) Plan as the western boundary of Counter Claim Item No.1 and allowing the 1 st defendant to recover possession of the Counter Claim Item No.2 property shown as 'LMHG' in Ext.C2(b) Plan. The plaintiff and the persons claiming under his title are restrained from trespassing into Counter Claim Item No.1 property and committing any sort of waste therein.
5. Though the plaintiff appeal before the First Appellate court, the First Appellate Court dismissed the appeal confirming the judgment and decree of the trial court.
6. I heard the learned counsel for the appellant Sri. R. Kishore.
7. The learned counsel for the appellant submitted that the RSA NO. 459 OF 2024 6 2024:KER:71090 Trial Court as well as the First Appellate Court committed mistake in relying on Ext.C2(b) plan. The properties ought to have been measured in accordance with the Survey Plan available with the Government. Plaint B schedule pathway having a width of 2 meters was kept apart from the date of execution of Ext.B1 Partition Deed. Even if it is not proved, Ext.C2(b) plan would show that the said 3 links width pathway is widened using the properties surrendered by the land owners on the western side. The 3 links pathway is shown in yellow colour, the widened portion on the western side is shown in green colour and the Counter Claim Item No.2 property is shown in violet colour in Ext.C2(b). The Trial Court entered a wrong finding that the plaint B schedule pathway is having only a width 3 links without taking onto account the widening on the western side.
8. On perusing the records, it is seen that the 1 st defendant produced Exts.B1 and B2 documents which are the prior title deeds of the plaint A schedule property belonged to the RSA NO. 459 OF 2024 7 2024:KER:71090 plaintiff. It shows that the width of pathway mentioned therein is having a width of 3 links. The width of pathway is not stated in Ext.A1 title deed of the plaintiff. Relying on Exts.B1 and B2 the Trial Court as well as the First Appellate Court rejected the oral evidence adduced by the plaintiff that the width of the pathway is 2 meters. I do not find any illegality in the said judgments of the Trial Court as well as the First Appellate Court.
9. As per the decree granted by the Trial Court in the Counter Claim, the portion which is allowed to be recovered by the 1st defendant is only 'LMHG' which is shown as counter claim item No.2 property in Ext.C2(b). It is situated on the eastern side of the 3 links pathway. The LM line shown in Ext.C2(b) is the line which is situated on the western side of LMHG plot. It does not take in the green shaded portion in Ext.C2(b) Plan which is the area surrendered by the land owners on the western side. The Trial Court as well as the First Appellate Court has not granted any relief with respect RSA NO. 459 OF 2024 8 2024:KER:71090 to the green shaded portion which is situated on the western side of the 3 links pathway which is the yellow shaded portion in Ext.C2(b). Hence there could not be any apprehension on the part of the appellant that the finding of the Trial court as well as the First Appellate Court that the width of the pathway is 3 links would create a wrong impression that including the green shaded portion the width of the pathway is only 3 links. The Trial Court as well as the First Appellate Court expressed that the width of the pathway is only 3 links with reference to the yellow shaded portion, which is found to be the pathway referred in Exts.B1 and B2.
10. I do not find any ground to interfere with the impugned judgments. Accordingly, the Regular Second Appeal is dismissed.
Sd/-
M.A.ABDUL HAKHIM JUDGE ncd