Kerala High Court
Komalam vs R1. Dr. P.M. Moothedath on 4 June, 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
MONDAY, THE 4TH DAY OF JUNE 2012/14TH JYAISHTA 1934
RSA.No. 1037 of 2011 (F)
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AS.120/2006 of III ADDL.SUB COURT, KOZHIKODE
OS.303/2002 of PRL.MUNSIFF COURT-I, KOZHIKODE
APPELLANTS/APPELLANTS 2 TO 5,7 & 8/DEFENDANTS 3 TO 6, 8 & 9:
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1. KOMALAM,
D/O. APPUTTY, RESIDING AT METHOTTU PARAMBA
NAGARAM AMSOM DESOM, KOZHIKODE TALUK.
2. PUSHPA,
D/O. APPUTTY, RESIDING AT METHOTTU PARAMBA
NAGARAM AMSOM DESOM, KOZHIKODE TALUK.
3. PREMA,
D/O. APPUTTY, RESIDING AT METHOTTU PARAMBA
NAGARAM AMSOM DESOM, KOZHIKODE TALUK.
4. UDAYAN
S/O. APPUTTY, RESIDING AT METHOTTU PARAMBA
NAGARAM AMSOM DESOM, KOZHIKODE TALUK.
5. SOBHANA,
D/O. APPUTTY, RESIDING AT METHOTTU PARAMBA
NAGARAM AMSOM DESOM, KOZHIKODE TALUK.
6. MOHAN,
S/O. APPUTTY, RESIDING AT METHOTTU PARAMBA
NAGARAM AMSOM DESOM, KOZHIKODE TALUK.
BY ADVS.SRI.V.V.SURENDRAN
SRI.P.A.HARISH
RESPONDENT/RESPONDENT/PLAINTIFF:
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R1. DR. P.M. MOOTHEDATH, S/O. M.P.MOOTHEDATH
RESIDING AT SREE NARAYANA NIVAS, SHORANNUR
MUNDAMUKKU AMSOM, NEDUNGOTTUR DESOM,OTTAPPALAM.P.O
PALAKKAD- 679121. NOW WORKING AT FATHIMA HOSPITAL
BANK ROAD, KOZHIKODE
*ADDL R2. SHYAMAPRASAD
S/o.ACHUTHAN, AGED 52 YEARS
CHULLIYIL, JALAJA NILAYAM, PANNIYANKARA AMSOM
DESOM, KALLAI, KOZHIKODE - 3
(*ADDL.R2 is IMPLEADED AS PER ORDER DTD 04.06.2012 IN I.A.NO.3080/11)
BY ADV. SRI.K.M.FIROZ, ADDL.R2
BY ADV. SMT.M.SHAJNA, ADDL.R2
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
04-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P. JOSEPH, J.
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R.S.A.No.1037 of 2011
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Dated this 04th day of June, 2012
JUDGMENT
Heard. Admit.
2. The following substantial questions of law are framed for a decision:
(i) Whether a kudikidappukaran is entitled to beneficially enjoy the appurtenant of kudikidappu property. If so, can the landlord deny this right of the defendant?
(ii) Whether the appellants have an easement right to draw water from the well situated in plaint A schedule and use the latrine and bathroom in plaint A schedule property, in view of their uninterrupted enjoyment of the same right from the day their predecessor came to the property?
3. Second respondent, pendente lite assignee from the first respondent is impleaded as per I.A.No.3080 of 2011. He appears through counsel. Since second respondent is the assignee from the first respondent, notice to the first respondent is dispensed with.
4. Defendants 3 to 6 and 8 and 9 in O.S.No.303 of 2002 of the Court of learned Principal Munsiff-I, Kozhikode are the R.S.A.No.1037 of 2011 -: 2 :- appellants before me, challenging the decree for prohibitory injunction granted in that suit as confirmed by the learned Additional Sub Judge-III, Kozhikode in A.S.No.120 of 2006. First respondent filed that suit for a decree for prohibitory injunction claiming that plaint A schedule belongs to him and that plaint B schedule is in the possession of the defendants as legal representatives of Sarojini who was a kudikidappukari in the said B schedule. Plaintiff alleged that defendants attempted to trespass into plaint A schedule.
5. Defendants contended that plaintiff has no possession of plaint A schedule and that the said property is not identifiable. They also claimed that description of plaint A and B schedules is not correct. A further claim made by them is a right to draw water from the well situated towards the south-western portion of plaint A schedule and use the latrine which according to the defendants is situated in the plaint A schedule. Trial court negatived the contentions and granted a decree for prohibitory injunction which the first appellate court has confirmed.
6. The contention raised by the appellant/defendants 3 to 6 and 8 and 9 in the second appeal is as regards their right to use the well situated towards the south-western portion of plaint A schedule and the latrine situated in the plaint A schedule. R.S.A.No.1037 of 2011 -: 3 :- Learned counsel for appellants/defendants 3 to 6 and 8 and 9 contended that in view of Sec.79A of the Kerala Land Reforms Act (for short, "the Act"), appellants being legal representatives of the deceased kudikidappukari is entitled to draw water from the well situated towards the south-western portion of plaint A schedule and use the latrine situated in that property.
7. Learned counsel for second respondent contends that there is no evidence of any such 'usage' as pleaded by the appellants, the judgment and decree in O.S.No.164 of 1970 would seal the fate of that contention and that at any rate, even as per Sec.79A of the Act relied on by the appellants, they are not entitled to any such right since there is no evidence of any "usage". Reliance is placed on the decisions in Paul @ Varkey Vs. Narayanan & Ors. (1974 KLT 29) and Ambrose Vs. Joseph (1980 KLT 507).
8. I have given a copy of Ext.A3 which is Ext.C13, plan marked in O.S.No.164 of 1970. As agreed by counsel on both sides and in the light of Ext.A3, since the appeal could be disposed of even without calling for records, I have not called for the records.
9. It is admitted that first respondent had filed O.S.No.258 of 1971 for a decree for prohibitory injunction to R.S.A.No.1037 of 2011 -: 4 :- direct the predecessor-in-interest of appellants, Sarojini and for mandatory injunction to remove the unauthorised constructions in the area beyond her kudikidappu as allowed by the Land Tribunal. Sarojini in turn, filed O.S.No.164 of 1970 for a declaration of her right of kudikidappu. Ext.A1 is the copy of decree in the said suit. The appeal arising therefrom was dismissed. Ext.A2 is the copy of the appellate decree. It is not disputed that the right of Sarojini was found to be confined to ABCD plot in Ext.A3 (Ext.C13 in the suits referred to above) and she was directed to remove the structures shown as QRST and UVWX in Ext.A3 extending beyond ABCD plot. That decree and the decree in O.S.No.164 of 1970 were confirmed by this Court as per Ext.A4, judgment. That was followed by the first respondent filing E.P.No.161 of 2000. CW1, the Amin came to the spot and demolished some of the unauthorised constructions (but not the latrine). Ext.A5 is the copy of report he submitted. These facts are not disputed before me by the learned counsel on both sides.
10. So far as the user of latrine situated in plaint A schedule and drawing of water from the well situated towards the south-western portion of plaint A schedule is concerned, it is relevant to note that either no such plea was raised or found R.S.A.No.1037 of 2011 -: 5 :- against in O.S.Nos.258 of 1971 and 164 of 1970 or it has been found by the courts below. Learned counsel for appellants has a contention that the said claim could be raised only after the claim of kudikidappu was established and the right got crystalised. But, it is seen that in O.S.No.164 of 1970, Sarojini prayed for a declaration of her right of kudikidappu. At that stage, Sarojini ought to have raised the claim for user of the well and the latrine. That was not done. Hence, in this proceeding appellants cannot contend that they are entitled to draw water from the well situated towards the south-western portion of plaint A schedule or use the latrine situated in the said portion.
11. So far as Sec.79A of the Act is concerned, subsec (1) says that notwithstanding anything contained in any law or in any contract, or in any judgment, decree or order of Court, the kudikidappukaran shall be entitled to all rights accrued to him by "custom, usage or agreement" and which he was enjoying immediately before the commencement of this Act. The contention now raised is that Sarojini was using the well situated towards south-western portion of plaint A schedule and the latrine situated in that item. This Court referred to the expression 'usage' occurring in Sec.79A(1) of the Act in Paul @ Varkey Vs. Narayanan & Ors. (supra) and Ambrose Vs. R.S.A.No.1037 of 2011 -: 6 :- Joseph (supra) and distinguished the expression from mere "user".
12. Though it is contended by the learned counsel for appellants that trial court has not even referred to the above contentions. It is seen from the judgment of the first appellate court that it has referred to the claim and referring to the earlier decrees and judgment (Exts.A1, A2 and A4) concluded that the claim based on the alleged usage cannot be accepted. As regards the alleged user, I must also notice that what is available is only the evidence of DW1. In the circumstance, the contention that appellants are entitled to use the well and latrine situated in plaint A schedule by virtue of Sec.79A(1) of the Act cannot be accepted.
13. The substantial questions of law framed are answered accordingly.
14. It is pointed out by the learned counsel for appellants that if the trial court decree as confirmed by the first appellate court is to stand as such, appellants will not even be able to get out of plaint B schedule which was allowed to their predecessor- in-interest by way of kudikidappu.
15. I have gone through a copy of Ext.A3 given to me and heard learned counsel for second respondent as well in that R.S.A.No.1037 of 2011 -: 7 :- regard. There is merit in the said contention of appellants. It is seen that a portion of plaint A schedule regarding which the courts below have granted injunction against the appellants comes in front of plaint B schedule as well thereby preventing appellants from gaining access to the public road on the east of plaint B schedule. Access to the public road on the east of plaint B schedule can be had only through that portion of plaint A schedule on the front (eastern side) of plaint B schedule.
16. When the above difficulty was pointed out to the learned counsel for second respondent, in fairness he has conceded that the second respondent would not claim any right or possession of that portion of plaint A schedule abutting the public road on the eastern side of plaint B schedule and lying in front of BC line in Ext.A3 at the same width from point B to C. It is also submitted by the learned counsel on behalf of second respondent that appellants can make free use of that portion of plaint A schedule coming in front of BC line in Ext.A3. The submission of learned counsel for second respondent is recorded. It follows that the decree for prohibitory injunction has to be modified accordingly.
The second appeal is allowed in part modifying the judgment and decree of learned third Additional Sub Judge, R.S.A.No.1037 of 2011 -: 8 :- Kozhikode in A.S.No.20 of 2006 and of the learned Principal Munsiff-I, Kozhikode in O.S.No.303 of 2002 as under:
(i) Defendants or their men are restrained from trespassing into the plaint A schedule property, except that portion of plaint A schedule abutting the public road on the east of plaint B schedule and coming in front of BC line (from point B to C) in Ext.A3 or obstructing the plaintiff in having the usufructs from plaint A schedule or their effecting peaceful possession and enjoyment (except the portion above stated) by a decree for perpectual injunction.
(ii). Parties are directed to suffer their costs throughout.
(THOMAS P. JOSEPH, JUDGE) Sbna/-