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2025 Supreme(Online)(Ker) 65139
CR IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM MONDAY, THE 27 TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946 RSA NO. 549 OF 2011 AGAINST THE JUDGMENT & DECREE DATED 21.12.2010 IN AS NO.31 OF 2009 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR ARISING OUT OF THE JUDGMENT & DECREE DATED 29.10.2008 IN OS NO.201 OF 2006 OF MUNSIFF COURT, NORTH PARAVUR APPELLANTS/RESPONDENTS/PLAINTIFFS:
1 THANKAPPAN, (DIED)
AGED 59 YEARS, NIKATHIL,KUTTAPLACKAL HOUSE, EZHIKKARA, THEKKUMBHAGAM KARA,EZHIKKARA VILLAGE, PARVOOR TALUK.
2 OMANA AGED 46 YEARS W/O.THANKAPPAN, KUTTAPLAKKAL HOUSE,, EZHIKKARA, THEKKUMBHAGAHOM KARA, EZHIKKARA VILLAGE, PARAVOOR VILLAGE.
ADDL.A3 RAMAKRISHNAN, AGED 32 YEARS, S/O.LATE THANKAPPAN, ,KUTTAPPAKKAL HOUSE, NOW RESIDING AT NIKATHIL HOUSE, EZHIKKARA, PARVOOR TALUK, ERNAKULAM DISTRICT.
ADDL.A4 RIJITHA, AGED 30 YEARS, D/O.LATE THANKAPPAN AND W/O.ANEESH, VARIYATH HOUSE, ADUVASSERY P.O., PARVOOR TALUK.
ADDL.A5 UNNIKRISHNAN, AGED 26 YEARS, S/O.LATE THANKAPPAN, ,KUTTAPPAKKAL HOUSE, NOW RESIDING AT NIKATHIL HOUSE, EZHIKKARA, PARVOOR TALUK, ERNAKULAM DISTRICT.
(THE LEGAL HEIRS OF DECEASED APPELLANT NO.1 ARE IMPLEADED AS ADDL.APPELLANTS 3 TO 5 AS PER THE ORDER DATED 11.07.2019 IN IA.4/2019.)
BY ADV SRI.K.P.MAJEED SRI. T.H ABDUL AZEEZ RESPONDENTS/APPELLANTS/DEFENDANTS:
1 RAJAN,(DIED) LEGAL HEIRS IMPLEADED AGED 50 YEARS, S/O.ANDREWS, ERALIL HOUSE, THEKKUMBHAGAM KARA, EZHIKKARA VILLAGE, PARAVOOR TALUK-683 513, P.O.EZHIKKARA.
2 VANITHA, AGED 40 YEARS, W/O.RAJAN ERALIL HOUSE, THEKKUMBHAGAM KARA, EZHIKKARA VILLAGE, PARAVOOR TALUK-683 513,P.O.EZHIKKARA.
ADDL.R3 RAMEES, AGED 23 YEARS S/O.RAJAN, ERALIL HOUSE, THEKKUMBHAGAM KARA, EZHIKKARA VILLAGE, PARAVOOR TALUK.
ADDL.R4 ALEENA, AGED 11 YEARS (MINOR),D/O.RAJAN, ERALIL HOUSE, THEKKUMBHAGAM KARA,, EZHIKKARA VILLAGE, PARAVOOR TALUK.(REPRESENTED BY HER MOTHER VANITHA-2ND RESPONDENT)
LEGAL HEIRS OF DECEASED RESPONDENT NO.1 ARE IMPLEADED AS ADDL.RESPONDENTS 3 AND 4 AS PER ORDER DATED 18.11.2019 IN IA.1/2019)
R2 BY ADVS.
JOHN VIPIN S.REKHA KUMARI SHAIJAN C.GEORGE SAJITHA GEORGE THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24.01.2025, ALONG WITH RSA.569/2011, THE COURT ON 27.01.2025 DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM MONDAY, THE 27 TH DAY OF JANUARY 2025 / 7TH MAGHA, 1946 RSA NO. 569 OF 2011 AGAINST THE JUDGMENT&DECREE DATED 21.12.2010 IN AS NO.30 OF 2009 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR ARISING OUT OF THE JUDGMENT & DECREE DATED 29.10.2008 IN OS NO.252 OF 2006 OF MUNSIFF COURT, NORTH PARAVUR APPELLANTS/RESPONDENTS/DEFENDANTS:
1 OMANA THANKAPPAN AGED 46 YEARS, W/O.THANKAPPAN, KUTTAPLAKKAL HOUSE,, EZHIKKARA, THEKKUMBHAGOM KARA,, EZHIKKARA VILLAGE, PARAVOOR VILLAGE.
2 THANKAPPAN,(DIED)
AGED 59 YEARS, NIKATHIL, KUTTAPLACKAL HOUSE,, EZHIKKARA, THEKKUMBHAGAM KARA,, EZHIKKARA VILLAGE, PARAVOOR TALUK. (
LEGAL HEIRS IMPLEADED) ADDL.A3. RAMAKRISHNAN AGED 32 YEARS, S/O.LATE THANKAPPAN, KULLAPPAKKAL HOUSE, NOW RESIDING AT NIKATHIL HOUSE EZHIKKARA, PARAVOOR TALUK, ERNAKULAM DISTRICT.
ADDL.A4. RIJITHA AGED 30 YEARS, D/O.LATE THANKAPPAN, W/O.ANEESH, VARIYATH HOUSE, ADUVASSERY P.O., PARAVOOR TALUK.
ADDL.A5. UNNIKRISHNAN AGED 26 YEARS, S/O.LATE THANKAPPAN, KULLAPPAKKAL HOUSE, NOW RESIDING AT NIKATHIL HOUSE EZHIKKARA, PARAVOOR TALUK, ERNAKULAM DISTRICT. LEGAL HEIRS OF DECEASED 2ND APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 3 TO 5 AS PER ORDER DATED
14/06/2019 IN IA.NO.1/2019.
BY ADV SRI.K.P.MAJEED SRI.T.H. ABDUL AZEEZ RESPONDENTS/APPELLANTS/PLAINTIFF:
1 ANTONY @ RAJAN,(DIED)
AGED 46 YEARS, S/O.ANDREWS, ERALIL HOUSE,, THEKKUMBHAGAM KARA, EZHIKKARA VILLAGE,, PARAVOOR TALUK.
ADDL.R2 VANITHA, AGED 40 YEARS, W/O.RAJAN, ERALIL HOUSE, THEKKUMBHAGAM KARA, EZHIKKARA VILLAGE,, PARAVOOR TALUK.
ADDL.R3 RAMEES, AGED 23 YEARS, S/O.RAJAN, ERALIL HOUSE,, THEKKUMBHAGAM KARA, EZHIKKARA VILLAGE,, PARAVOOR TALUK.
ADDL.R4 ALEENA, AGED 11 YEARS, (MINOR),D/O.RAJAN, ERALIL HOUSE,, THEKKUMBHAGAM KARA, EZHIKKARA VILLAGE,, PARAVOOR TALUK.
.(REPRESENTED BY HER MOTHER VANITHA-2ND RESPONDENT)
(ADDITIONAL RESPONDENTS 2 TO 4 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED SOLE RESPONDENT AS PER ORDER DATED 18.11.2019 IN IA.2/2019)
BY ADVS.
R2&R4 BY ADV.SRI.N.RAJESH R3 BY ADV.SRI.U.P.EASANAN NAMBOODIRIPAD THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24.01.2025, ALONG WITH RSA.549/2011, THE COURT ON 27.01.2025 DELIVERED THE FOLLOWING:
CR
JUDGMENT
[RSA Nos.549/2011, 569/2011]
1. These two appeals arise from two suits - O.S.No.201/2006 & O.S.No. 252/2006 on the files of the Munsiff’s Court, North Paravoor. Both suits are disposed of by a common judgment by the Trial Court, and hence, both appeals are considered together.
2. The appellants in R.S.A No. 549 and 569 of 2011 are the same persons. They are the plaintiffs in O.S.No.201/2006 and the defendants in O.S.No. 252/2006. They are husband and wife.
3.The defendants in O.S.No.201/2006 are also husband and wife. The 1st defendant in O.S.No. 201/2006 is the plaintiff in O.S.No. 252/2006.
4. The parties are referred to according to their status in O.S.No.201/2006.
5.Plaint A Schedule property having an extent of 13.913 cents belonged to the 2nd plaintiff. The 1st defendant has Plaint B Schedule Property, which has an approximate extent of 47 cents, on the western side of Plaint A Schedule Property. Plaint B Schedule Property. O.S.No. 201/2006 is filed for declaration of right of way by easement by prescription and necessity over plaint C schedule pathway and consequential prohibitory injunction. Plaint C Schedule pathway is shown as having a width of 8 links and a length of 40 meters, which starts from the northwestern portion of Plaint A Schedule Property, proceeding west through the north of Plaint B Schedule Property, and proceeding to the south through the western side of Plaint B schedule property and reaches on a way which starts from the western main road and proceeding towards east.
6. O.S.No.252/2006 is filed by the first defendant in O.S.No. 201/2006 seeking a permanent prohibitory injunction on the allegation that the defendants therein, who are the plaintiffs in O.S.No. 201/2006 are attempting to cut open a pathway through Plaint A Schedule property therein. The Plaint B Schedule property in O.S.No.201/2006 is the Plaint A Schedule property in O.S.No.252/2006.
7.The material pleadings of the plaintiffs are that the 2nd plaintiff obtained Plaint A Schedule property as per Ext. A1 Sale Deed dated 08.02.1985; that the Plaint A and B Schedule properties along with other properties originally belonged to one Meenakshi Kunjamma; that by virtue of Power of Attorney executed by Meenakshi Kunjamma in favour of the father of the 1st defendant - Andrews, the property was in possession and management of the father of the 1st defendant; that on 07.01.1983, the 1st plaintiff entered into an Agreement with the father of the 1st defendant for purchase of Plaint A Schedule property and entire sale consideration was paid on 31.12.1983 as per Ext. A2 and the Plaint A Schedule property were put in possession of the plaintiffs on the very same date that the plaintiffs started residing in the Plaint A Schedule property from the said date, and from the date of residence in the Plaint A Schedule property, they have been using the Plaint C Schedule pathway for accessing the main road.
8.The defendants filed a Written Statement opposing the suit prayers contending, inter alia, that Plaint C Schedule pathway is not in existence, that the plaintiffs are attempting to cut open a pathway through Plaint B schedule property, that the plaintiffs are having alternate ways to reach the main road through property purchased by the 1st plaintiff on the northern side and through another property purchased by the 2nd plaintiff on the southern side.
9. On the basis of Exts. C1 and C1 (a) Commission Report in O.S.No.201/2006 and Exts. C2 and C2 (a) Commission Report in O.S.No.252/2006, the Trial Court found the existence of Plaint C Schedule pathway through Plaint B Schedule property. The Trial Court found that the use of the pathway for the statutory period is proved by the plaintiffs on the strength of Ext. A2 document, which is admitted by the defendants, and the evidence of PW2. The claim of easement by necessity was rejected. Accordingly, the Trial Court decreed O.S.No.201/2006, grating declaration of easement by prescription over Plaint C schedul
