Kerala High Court
Pradeep Kumar vs Sarala on 23 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
FRIDAY, THE 23RD DAY OF NOVEMBER 2012/2ND AGRAHAYANA 1934
RSA.No. 772 of 2005 (A)
-----------------------
OS.1385/1996 of I ADDL.M.C.,ERNAKULAM
AS.294/03 OF V ADDL. DISTRICT COURT, ERNAKULAM
APPELLANT(S)/APPELLANTS 1 AND 2/DEFENDANTS 3 & 4:
--------------------------------------------------
1. PRADEEP KUMAR, S/O.LATE MADHAVAN,
AGED 45, PERMANENTLY RESIDING AT THARAYIL HOUSE
PERINJANAM EAST P.O., THRISSUR DIST., REP. BY HIS
POWER OF ATTORNEY HOLDER, ALSEENA PRADEEP
W/O.PRADEEP KUMAR, AGED 39, RESIDING AT 11/444,
K.B.JACOB ROAD, FORT KOCHI, VELI, KOCHI-682 001.
2. SMT.ALSEENA, AGED 45,
W/O.PRADEEP KUMAR, RESIDING AT 11/444, FORT KOCHI
VELI, KOCHI-682 001.
BY ADV. SRI.JOHN NUMPELI (JUNIOR)
RESPONDENT(S)/R 1 & 2/PLAINTIFFS & APPELLANTS 3-7/D-6 TO 10 & D-5:
------------------------------------------------------------------
1. SARALA, D/O.KRISHNAN, AGED 50,
THYKOOTTATHIL HOUSE, POONITHURA,
PONNURUNNI, VYTTILA.
2. VANAJA, AGED 47 YEARS, D/O.KRISHNAN,
THYKOOTTATHIL HOUSE, POONITHURA,
PONNURUNI, VYTTILA.
3. DR. SUDHEENDRAN, AGED 59,
S/O.LATE KOCHU KRISHNAN, LAKSHMI CLINIC,
ADIMALI, PERMANENTLY RESIDING AT
THIDUNNAYIL HOUSE, VYTTILA, KOCHI-19.
4. DR. JAYAN, AGED 56,
S/O.LATE KOCHU KRISHNAN, THIDUNNAYIL HOUSE
POONITHURA, PONNURUNNI, VYTTILA.
RSA.No. 772 of 2005
-2-
5. BABY, W/O.SARANGADHARAN,
THIDUNNAYIL HOUSE, POONITHURA,
PONNURUNNI, VYTTILA.
6. SREELATHA, D/O.SARANGADHARAN,
RESIDING AT DO.DO.
7. SREELAKSHMI, D/O.SARANGADHARAN,
RESIDING AT DO.DO.
8. ALEX MATHEW, S/O.JOSEPH MATHEW,
AGED ABOUT 33 YEARS, NOW RESIDING AT XXXI/1246,
PONNURUNNI, SAHAKARANA ROAD, VYTTILA P.O.,
KOCHI-18, KOONTHANAM, PONATTUKARA
LAYAM VILLAGE, MEENACHIL TALUK, PALA.
R1 & R2 BY ADVS.SRI.V.N.SWAMINATHAN
SRI.S.DILEEP
SRI.FELIX.K.J.
R4 TO R7 BY ADVS. SRI.V.DIPU
SRI.R.ANUP
R8 BY ADVS. SRI.JOHN K.GEORGE
SRI.K.C.SURESH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
23-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
VPV
THOMAS P. JOSEPH, J.
=====================
R.S.A. No. 772 of 2005
========================
Dated this the 23rd day of November, 2012
JUDGMENT
The defendants 3 and 4 in O.S. No. 1385 of 1996 of the Ist Additional Munsiff's Court, Ernakulam is aggrieved by the decree declaring the right of the respondents 1 and 2/plaintiffs for access to item No. 4 as an easement of necessity and the grant of mandatory injunction confirmed by the Vth Additional District court, Ernakulam in A.S. No.294 of 2003.
2. According to the respondents 1 and 2/plaintiffs, they got item No.2 by way of kudikidappu and obtained purchase certificate in the year, 1972. It is their case that item Nos. 1 to 4 originally belonged to a common owner and that they were using item No.4, pathway from item No.2 for access to Kachappilly road on the western side and for such access, they have no other way. The appellants and the respondents 3 to 8 caused obstruction to the user of the pathway and hence the suit.
3. The appellants and others contended that the respondents 1 and 2 have other means of access to item No.2 R.S.A. No. 772 of 2005 -: 2 :- from the northern side of item Nos. 3 and 4 and that respondents 1 and 2 were using that way. They also denied existence of any such way as item No.4.
4. The trial court found that item No.4 is the only means of access to the respondents 1 and 2 and since there was severance of tenements between item Nos. 1 to 3, the respondents 1 and 2 are entitled to get a decree for declaration and mandatory injunction since the respondents 1 and 2 have no other means of access to item No.2. The mandatory injunction directed the appellants and other defendants to open up a way along item No.4 at a width of 3 feet. That judgment and decree were confirmed by the first appellate court in A.S. No.294 of 2003.
5. The learned counsel for the appellants contends that the respondents 1 and 2 have an alternate access to the FAC road on the northern side along the pathway on the east of item No.2 belonging to them. According to the learned counsel, that is the way which the respondents 1 and 2 could use as of right and that would extinguish the claim of easement by way of necessity. A further argument the learned counsel has advanced is that under Sec. 79(A) (ii) of the Kerala Land Reforms Act (for short "the KLR Act"), right from the time the hut or homestead came into R.S.A. No. 772 of 2005 -: 3 :- existence in item No.2, the respondents 1 and 2 could enjoy a right of easement as against the original owner for use of the alternate way suggested by the appellants and other defendants.
6. The learned counsel for the respondents 1 and 2 contended that there is no reliable evidence to show that there is any alternate access to the respondents 1 and 2 for gaining access to item No. 1 and 2. The learned counsel points out that the alternate way suggested by the appellants passes through the property of one Lalitha and that the respondents 1 and 2 have no access through that way as of right.
7. Though according to the appellants, item Nos. 1 to 5 and the property of Lalitha (situated towards east of item No.2) originally belonged to a common owner, the respondents 1 and 2 would say that only item Nos. 1 to 4 originally belonged to the common owner. The Advocate Commissioner in Ext.C1(a), sketch has shown the respective item. The portion towards north of item Nos. 2 and east of item No.3 is the rest of item No. 1, according to the respondents 1 and 2. It is seen that the pathway claimed by the respondents 1 and 2 (item No.4) originates from the north-western portion of item No.2 belonging to respondents 1 and 2, goes towards the west along item No.4 R.S.A. No. 772 of 2005 -: 4 :- belonging to the appellants/defendants 3 and 4 and reaches the Kachappilly road on the further west.
8. The alternate way, pointed out by the appellants is situated towards east of item No. 2 and the west of item No.1 situated on the north of item No.2. That way it is not very much in dispute, passes through the property of Lalitha and reaches the FAC road on the further north. If the said way was one which the respondents 1 and 2 could use as of right, question of easement by necessity over item No.4 would not have arisen. Unfortunately, no evidence is let in by the appellants to show that portion of the alternate pathway passing through the property of Lalitha is one which the respondents 1 and 2 could use as of right.
9. The learned counsel would submit that the said Lalitha is prepared to execute any document enabling the respondents 1 and 2 to use that portion of the pathway passing through her property. Lalitha is not a party to the suit and hence I cannot anticipate any such possibility and leave the matter there. As matters now stand, it is shown that respondents 1 and 2 have no access through the way passing through the property of Lalitha. As of right. As it now stand, the alternate way suggested by the R.S.A. No. 772 of 2005 -: 5 :- appellants cannot extinguish the right of easement of necessity in favour of the respondents 1 and 2.
10. The other argument is based on Sec.79 (A) (ii) of the KLR Act. The said provision says that notwithstanding anything contained in any law, judgment, decree or order, the kudikidappukaran is entitled to the rights and privileges conferred on the owner of the land under the Easements Act - 1882 as if the kudikidappukaran was the owner of the kudikidappu from the date on which the hut or homestead occupied or erected. That provision only says that whatever right of easement the owner of the land had for the beneficial enjoyment of that property, would pass on to kudikidappukaran by virtue of Sec.79(A) (ii) from the time the hut or homestead comes into existence.
11. No evidence is let in by the appellants to show that during the time the dominant and servient tenements were with the common owner, he was enjoying any right of access through the alternate way pointed out by the appellants. I stated that what is conferred on the kudikidappukaran under Sec.79(A)(ii) is that right which the owner of the land had under Easements Act and not an independent right on the kudikidappukaran. There is R.S.A. No. 772 of 2005 -: 6 :- no evidence to show that the alternate way suggested by the appellants was one which the owner of the land could use as of right and that at that time the FAC road on the northern side was also in existence. Hence contention of the appellants based on Sec.79(A) (ii) of the KLR Act cannot stand.
12. Even going by the version of the appellants, it would appear that item No.5 (shown in Ext.C1(a)) came into the ownership of the second respondent in the year, 1955. As per version of the respondents 1 and 2, they were originally staying in the hut in item No.3, later shifted to item No.2 and the purchase certificate was obtained in the year, 1970. True that the purchase certificate is not produced but right of the respondents 1 and 2 over item No.2 is not very much in dispute. Therefore, non-production of the purchase certificate is not of any consequence. The evidence as concurrently found by the courts below show that except item No.4., there is no other way which the respondents 1 and 2 could use as of right. Therefore, the alternate way suggested by the appellants could not extinguish the right of easement claimed by respondents 1 and 2 through item No.4 which admittedly passes through item No.3. In that view of the matter, the courts below are correct in R.S.A. No. 772 of 2005 -: 7 :- declaring the right of easement by necessity over item No.4 in favour of the respondents 1 and 2.
13. So far as width of item No.4 is concerned, the first appellate court observed that it is only 3 feet and that is necessary for the beneficial enjoyment of the respondents 1 and
2. I am not inclined to think that a width of 3 feet for access to item No.2 is at any rate, a luxury for the respondents 1 and 2 . Hence in that regard also I am not inclined to think that any substantial question of law is involved.
14. On hearing the learned counsel on both sides, I am satisfied that no substantial question of law is involved for a decision by this court.
The second appeal is dismissed.
Sd/-
THOMAS P.JOSEPH, JUDGE smv //True copy// P.A. To Judge