Kerala High Court
Eugene Varuth vs The Sree Valleeswara Temple on 28 January, 2020
Author: P.Somarajan
Bench: P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 28TH DAY OF JANUARY 2020 / 8TH MAGHA, 1941
RSA.No.807 OF 2007
AGAINST THE JUDGMENT AND DECREE DATED 23-01-2007 IN AS 97/2004 OF
PRINCIPAL SUB COURT,KOCHI
AGAINST THE JUDGMENT AND DECREE DATED 11-04-2003 IN OS 462/2001 OF
ADDITIONAL MUNSIFF COURT, KOCHI
APPELLANT(APPELLANTS/PLAINTIFFS):
1 EUGENE VARUTH, AGED 36, S/O LATE M.T.VARUTH,
MUTTUNGAL, CHELLANAM, COCHIN-8.
2 ELIZABETH VARUTH, AGED 65,
W/O.LATE VARUTH, -DO- -DO-.
BY ADVS.
SRI.DINESH R.SHENOY
SRI.V.V.UNNIKRISHNAN
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 THE SREE VALLEESWARA TEMPLE, CHELLANAM,
COCHIN- 8 REPRESENTED BY THE DEVASWOM PRESIDENT, SREE
VALLEESWARA DEVASWOM, CHELLANAM, COCHIN-8.
2 THE DEVASWOM SECRETARY,
SREE VALLESWARA DEVASWOM, CHELLANAM, COCHIN-8.
R1 BY ADV. SRI.N.N.SUGUNAPALAN SR.
R1 BY ADV. SRI.S.SUJIN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
28.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RSA.No.807 OF 2007 2
JUDGMENT
The plaintiffs are the wife and children of one Kudikidappukaran over the A schedule property. The B schedule is the registered holding of the defendants, originally belonged to the family who had given A schedule property in kudikidappu. The certified copy of the kudikidappu certificate though produced, it was not marked. C schedule is the pathway leading to the A schedule property, wherein the plaintiffs claim a width of 10 to 12 feet and length of 150 feet. The case of plaintiffs is that they are entitled to use the B schedule both under the provisions of the Kerala Land Reforms Act (for short 'the KLR Act), the Section 79 and also by way of easement. The commissioner who visited the property had reported the existence of way having a width ranging from 7.5 feet to 11.5 feet. It is submitted by the learned counsel that the width of the way was reduced to 7.5 feet due to the RSA.No.807 OF 2007 3 intervention of a growing tree. Both the courts below found that the plaintiffs are entitled to only 3 feet way. A 3 feet way was provided to the plaintiffs after the decree. Aggrieved by the said decree and judgment, the plaintiffs came up with this appeal.
2. Several questions came up for consideration as to the legality of deciding a right which was conferred under the provisions of the KLR Act, namely, Section 79 by the Civil Court without the intervention of Land Tribunal under Section 125 (3) of KLR Act and also the sustainability of granting a decree based on easement, apart from the claim under Section 79 of the KLR Act. The issue can only be resolved after ascertaining the consistency of the case advanced by the plaintiff. The plaintiff can either stick on the benefit under Section 79 of the KLR Act or claim easement over the property. When the plaintiff opted to stick on the benefit under Section 79 of the KLR Act, necessarily, the said issue should be referred to the concerned Land Tribunal under Section 125 (3) of the KLR Act. The RSA.No.807 OF 2007 4 issuance of purchase certificate on an earlier occasion will have its own impact. Normally, while granting purchase certificate, a plan will be drawn showing the means of access to the property of Kudikidappu along with the boundaries and measurement of Kudikidappu. It is upto the plaintiff to show that no way was provided at the time of grant of Kudikidappu. Then only the question of a reference under Section 125(3) would arise. In the case of easement right claimed, there is no necessity to refer the issue under Section 125(3) of the KLR Act, but the pleading should disclose the nature of easement enjoyed with its ingredients. But unfortunately, the plaint is silent with respect to the ingredient which would constitute any particular easement and the nature of easement claimed. It is the duty of the Trial Court to ascertain the claim of plaintiffs so as to rule out inconsistency in the pleading. Necessarily, the same should be considered at first before proceeding with the trial of the suit. Inconsistent plea by the plaintiff is destructive and shall not be permitted and the same RSA.No.807 OF 2007 5 would constitute a substantial question. Hence a remand of the matter to the Trial Court cannot be avoided. The decree and judgment of both the courts below hence cannot be sustained and the same is set aside. The matter is remanded back to the Trial Court. The parties shall appear before the Trial Court on 26/02/2020.
The appeal is allowed in part accordingly. No costs.
Sd/-
P.SOMARAJAN
JUDGE
MSP //TRUE COPY//
P.A. TO JUDGE