Kerala High Court
Cleetus Clyson vs Annie Samuel
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
WEDNESDAY, THE 9TH DAY OF AUGUST 2017/18TH SRAVANA, 1939
RSA.No. 1346 of 2012 ()
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AGAINST JUDGMENT DATED 18-02-2012 IN AS 47/2009 of SUB COURT, KOCHI
AGAINST JUDGMENT DATED 30-01-2009 IN OS 200/2008 of ADDL.MUNSIFF
COURT, KOCHI
APPELLANT/APPELLANT/PLAINTIFF:
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CLEETUS CLYSON, AGED 32 YEARS,
S/O.CLEETUS PALIYATH HOUSE, MOOLAMKUZHI, RAMESWARAM
VILLAGE KOCHI TALUK, KOCHI-682002, REPRESENTED BY POWER
HOLDER CLEETUS, S/O.JOSEPH.
BY ADVS.SRI.T.SETHUMADHAVAN (SR.)
SRI.P.N.SASIDHARAN
SRI.C.A.ANUPAMAN
RESPONDENTS/RESPONDENTS/DEFENDANTS:
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1. ANNIE SAMUEL, AGED 75,
D/O.LATE SAMUEL RESIDING AT XV/841,VELIPARAMBIL HOUSE,
MOOLAMKUZHI, RAMESWARAM VILLAGE KOCHI TALUK,
KOCHI-682002 (DIED)
2. METTI SAMUEL, AGED 73 YEARS,
D/O.LATE SAMUEL, RESIDING AT XV/841,VELIPARAMBIL HOUSE,
MOOLAMKUZHI, RAMESWARAM VILLAGE, KOCHI TALUK,
KOCHI 682002 (DIED)
3. V.S.EAPPEN, AGED 71 YEARS,
S/O.LATE SAMUEL RESIDING AT XV/841,VELIPARAMBIL HOUSE,
MOOLAMKUZHI, RAMESWARAM VILLAGE, KOCHI TALUK,
KOCHI 682002.
ADDL. 4. YUVAMMA SAMUEL
D/O.LATE SAMUEL RESIDING AT XV/841,VELIPARAMBIL HOUSE,
MOOLAMKUZHI, RAMESWARAM VILLAGE, KOCHI TALUK,
KOCHI 682002.
ADDL. 5. V.S.CHERIYAN
S/O.LATE SAMUEL RESIDING AT XV/841, VELIPARAMBIL HOUSE,
MOOLAMKUZHI, RAMESWARAM VILLAGE KOCHI TALUK,
KOCHI 682002.
(ADDITIONAL RESPONDENT NOS.4 AND 5 ARE IMPLEADED IN THIS RSA
AS THE LEGAL HEIRS OF RESPONDENTS 1 & 2, WHO EXPIRED AT THE TIME OF
JUDGMENT OF THE APPEAL BEFORE THE LOWER APPELLATE COURT. THE THIRD
RESPONDENT IS THE OTHER LEGAL HEIR OF RESPONDENTS 1 & 2.)
R3 BY ADV. SRI.B.RAMACHANDRAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
09-08-2017, ALONG WITH RSA. 1383/2012, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
B. KEMAL PASHA, J.
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R.S.A. Nos. 1346 & 1383 of 2012
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Dated this the 9th day of August, 2017
J U D G M E N T
O.S.No.77 of 2008 and O.S.No.200 of 2008 of the Munsiff's Court, Kochi were jointly tried. O.S.No.77/2008 was filed by Annie Samuel and others against one Klyson and others as a suit for perpetual injunction restraining the defendants from reducing the width of plaint B schedule pathway etc. The said Klyson filed O.S.No.200/2008 against Annie Samuel and others for a decree of perpetual injunction restraining them from causing any obstructions to the construction of the eastern compound wall at the eastern boundary of the property of the plaintiff. Both the suits were decreed by the Munsiff's Court Kochi. At the R.S.A. Nos. 1346 & 1383 of 2012 -: 2 :- same time, O.S.No.200/2008 was decreed thereby granting a decree of perpetual injunction by restraining the defendants from causing obstruction to the construction of the eastern compound wall to the property of the plaintiff, with a rider that for constructing the compound wall at the eastern boundary, the plaintiff has to leave plaint B schedule property in O.S.No.77 of 2008.
2. Aggrieved by the said judgments and decrees, the said Klyson filed A.S.No.47/2009 before the Subordinate Judge's Court, Kochi, challenging the judgment and decree in O.S.No.200/2008. The said Klyson and others filed A.S.No.45/2009 before the Subordinate Judge's Court, Kochi by challenging the judgment and decree in O.S.No.77/2008 also.
3. The lower appellate court has chosen to hear both the said appeals separately even though both the suits were jointly tried, thereby the lower appellate court allowed A.S.No.45/2009 which was filed by the plaintiff in R.S.A. Nos. 1346 & 1383 of 2012 -: 3 :- O.S.No.200/2008 and dismissed the suit.
4. Heard the learned Senior Counsel for the appellants and the learned counsel for the respondents.
5. This is a case wherein a decree of perpetual injunction has been granted in favour of the plaintiffs in O.S.No.77/08 in respect of plaint B schedule pathway. Plaint B schedule pathway is admittedly passing through the eastern side of the property of the appellants. The plaintiff in O.S.No.77/2008 had forwarded a claim of easement by necessity over the plaint B schedule pathway. At the same time, there was no supporting pleadings for bringing out a claim of easement of necessity. The pleadings in the plaint show that what was intended to be claimed by the plaintiffs was easement by prescription.
6. Even though the trial court has passed a decree in favour of the plaintiffs in respect of the plaint B schedule pathway, it is a fact that any plan has not been appended with the decree for making the decree an executable one. R.S.A. Nos. 1346 & 1383 of 2012 -: 4 :- In order to carve out plaint B schedule pathway, the same has to be properly located and identified. There is absolutely nothing to show in Ext.C1(a) sketch to locate and identify the property. Ext.C1(a) is a rough sketch, which do not show any measurements in order to locate and identify plaint B schedule pathway.
7. This Court had occasion to consider such a situation in the decision in Raveendran v. Lohithakshan [2017(2) KLT 865] wherein it was held that in order to grant the reliefs claimed in the plaint in the said suit, there should be a plan having sufficient measurements, showing the actual lie of the properties and the existing pathway. Such a plan has to be prepared by a competent Surveyor, and in the absence of any such plan, an executable decree cannot be passed. A civil court is not supposed to pass a decree which is not executable.
8. According to the learned Senior Counsel, the property of Klyson and others has an extent of four cents R.S.A. Nos. 1346 & 1383 of 2012 -: 5 :- only. When they attempted to construct their compound wall at the eastern side separating the pathway from their property, the plaintiffs in O.S.No.77/2008 obstructed the same, which necessitated the filing of O.S.No.200 of 2008. Ultimately, the trial court granted a decree in O.S.No.200/2008 with a rider that the plaintiff should leave plaint B schedule property in O.S.No.77/2008 at the time of construction of the eastern compound wall of their property. When the said plaintiff was clamouring before the lower appellate court with regard to the said rider incorporated by the trial court in the judgment and decree, the lower appellate court has simply allowed the appeal by dismissing the said suit. A strange course of action has been resorted to by the lower appellate court.
9. From the matters in controversy in both the suits, it has come out that plaint B schedule property in O.S.No.77/2008 has to be properly located and identified. For identifying the said plaint B schedule property, the R.S.A. Nos. 1346 & 1383 of 2012 -: 6 :- property of the plaintiff in O.S.No.200/2008 has to be identified. Definitely the eastern boundary of the said property, which is the western boundary of the plaint B schedule pathway in O.S.No.77/2008, can be identified and located. The controversy in both the suits can be settled only through a proper survey and measurement of the property of the plaintiffs in O.S.No.200/2008. Admittedly, there is a pathway leading to the property of the plaintiffs in O.S.No.77/2008. Even though the said pathway is described as plaint B schedule item in the plaint, its measurements have to be noted in the survey plan in order to pass an executable decree. Therefore, the entire exercise made by both the courts below in these suits have become futile, and the judgments and decrees are liable to be set aside.
In the result, this Second Appeal is allowed and the judgments and decrees passed by the lower appellate court as well as the Munsiff's Court are set aside. Both the suits are remitted to the trial court for fresh disposal in R.S.A. Nos. 1346 & 1383 of 2012 -: 7 :- accordance with law, after giving an opportunity to the parties to take out a Commission, with the assistance of a competent Surveyor and to prepare a survey plan, which has to be appended with the Commissioner's report, showing the measurements of the property of the appellants as well as the plaint B schedule item in O.S.No.77/2008. It has to be noted that even though the respondent have claimed a width of 6 feet for plaint B schedule item in O.S.No.77/2008, the appellants have contended that the width is around 3.5 feet only. Therefore, the property of the appellants has to be located, in order to locate and identify the actual width of plaint B schedule property in O.S.No.77/2008.
The Commissioner's batta and expenses shall be borne by both the parties equally. A joint trial has to be conducted and, the said survey plan, which will be prepared by the Surveyor, who assist the Commissioner shall be appended with the judgments and decrees. The plaintiffs in R.S.A. Nos. 1346 & 1383 of 2012 -: 8 :- O.S.No.77/2008 shall be permitted, if so advised, to amend their plaint. In the nature of these appeals, there is no order as to costs. Parties shall appear before the trial court on 29.08.2017. All the interlocutory applications in this appeal are closed.
Sd/- B. KEMAL PASHA, JUDGE.
ul/-
// true copy // P.S. to Judge.