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A. BADHARUDEEN
Pavizhamma, W/o Sasidharan – Appellant
Versus
Mangalamma, W/o Subramanyan – Respondent
JUDGMENT
This regular second appeal has been filed under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’ for short), challenging dismissal of AS No.33/2016 on the files of the Additional District Court-II, Kollam, dated 15.11.2022, arose out of the decree and judgment in OS No.501/2011 on the files of the Additional Munsiff’s Court, Kollam, dated 30.11.2015. The appellants herein are the defendants in the above suit. The respondent herein is the plaintiff.
2. Heard the learned counsel for the appellants/defendants on admission.
3. I shall refer the parties in this regular second appeal as ‘plaintiff’ and ‘defendants’ for convenience.
4. A suit for declaration, mandatory injunction and permanent prohibitory injunction was filed by the plaintiff. Originally, the plaint ‘A’ and ‘B’ schedule properties were purchased jointly by the plaintiff and the first defendant. as per a sale deed. According to the plaintiff, while the plaintiff and the first defendant jointly possessing and enjoying the plaint ‘A’ and ‘B’ schedule properties, both of them executed partition deed No.3357/1987 and as per the partition deed, plaint ‘A’ schedule
(1) Second Appeal – Second appeal cannot be decided on equitable grounds and conditions mentioned in Section 100 read with Order XLII Rule 2 of C.P.C. must be complied to admit and maintain a second ....
The duty of the appellate court to decide on applications filed under relevant CPC rules and the requirement for proper assessment of evidence in property disputes.
The central legal point established in the judgment is the interpretation of the evidence and the application of the legal principles, including the provisions of the Easement Act, 1882, to determine....
Establishment of easement rights requires explicit documentation, and mere permissive rights do not confer legal easements; plaintiffs failed to prove their claim.
The High Court cannot interfere with concurrent findings of fact unless they are perverse; a substantial question of law must be established for a second appeal under CPC.
Easementary rights must be explicitly claimed in pleadings; claims of title and easement cannot coexist without admitting the adversary's title.
The court clarified the extent of easement rights under a partition deed and emphasized that courts cannot expand these rights beyond explicit definitions in such deeds.
A plaintiff claiming a right of easement must demonstrate continuous, uninterrupted use for the statutory period to establish the claim, as per the Easements Act, 1882.
The court affirmed the Plaintiffs' easementary rights based on historical use and legal documentation, emphasizing the significance of such rights in property law.
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