Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 31ST DAY OF OCTOBER 2019 / 9TH KARTHIKA, 1941 RSA.No.811 OF 2006 AGAINST THE JUDGMENT AND DECREE DATED 24-08-2006 IN AS 36/2003 OF III ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM AGAINST THE JUDGMENT AND DECREE DATED 20-11-2002 IN OS 2148/1999 OF I ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM APPELLANT/APPELLANT/PLAINTIFF:
JACOB VARGHESE, S/O.P.T.VARGHESE, T.C.11/772,, NALANDA JUNCTION, NANTHENCODE, KOWDIYAR VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.BECHU KURIAN THOMAS (SR.) RESPONDENT/RESPONDENT/DEFENDANT: * THOMAS VARGHESE, S/O.P.T.VARGHESE, T.C.11/771,, NALANDA JUNCTION, NANTHENCODE, KOWDIYAR VILLAGE, THIRUVANANTHAPURAM. (DIED) ADDL. R2 TO R8 ARE IMPLEADED R1 DIED ADDL.R2 TO R8 ARE IMPLEADED ADDL. ALICE THOMAS, W/O LATE THOMAS VARGHESE, R2 T.C.11/906, NALANDA JUNCTION, NANTHENCODE, KOWDIYAR VILLAGE, THIRUVANANTHAPURAM-695 004 ADDL. P.T.VARGHESE, S/O LATE THOMAS VARGHESE, R3 T.C.11/906, NALANDA JUNCTION, NANTHENCODE, KOWDIYAR VILLAGE, THIRUVANANTHAPURAM-695 004 ADDL. MARY THOMAS, W/O ABRAHAM SURESH THOMAS, R4 HOUSE NO.22, M.N.LANE, PLAMOODU, THIRUVANANTHAPURAM - 695 004 ADDL. ANNIE THOMAS, W/O ANIL P.JACOB, R5 KIZHAKKAYIL, PALATHINKAL, NEDUNGAD APPALLY PO, KOTTAYAM-686545 RSA.811/2006,RSA.667/2007 2
ADDL. SHAJI PAUL, ENNASSERIL, NR.SAIT GITTS COLLEGE OF R6 ENGINEERING, KOTTUKULAM HILLS, PATHAMUTTOM PO, KOTTAYAM - 685 532 ADDL. AKHIL (MINOR), S/O LATE ELIZEBETH PAUL,ENNASSERIL, R7 NR.SAIN GITTS COLLEGE OF ENGINEERING, KOTTUKULAM HILLS, PATHAMUTTOM PO, KOTTAYAM - 686 532, REPRESENTED BY SHAJI PAUL. ADDL.R NIDHIN (MINOR), S/O LATE ELIZEBETH PAUL,ENNASSERIL, 8 NR,SAINT GITTS COLLEGE OF ENGINEERING, KOTTUKULAM HILLS, PATHAMUTTOM P.O, KOTTAYAM - 686 532, REPRESENTED BY SHAJI PAUL. LEGAL REPRESENTATIVES OF DECEASED RESPONDENT ARE
IMPLEADED AS ADDL RESPONDENTS 2 TO 8, AS PER ORDER
DATED 31/07/12 IN I.A.1931/12 R1, ADDL.R2 TO R8 BY ADV. SRI.G.S.REGHUNATH THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31.10.2019, ALONG WITH RSA.667/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA.811/2006,RSA.667/2007 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 31ST DAY OF OCTOBER 2019 / 9TH KARTHIKA, 1941 RSA.No.667 OF 2007 AGAINST THE JUDGMENT AND DECREE DATED 24-08-2006 IN AS 37/2003 OF III ADDITIONAL DISTRICT COURT, THIRUVANANTHAPURAM AGAINST THE JUDGMENT AND DECREE DATED 20-11-2002 IN OS 2196/1999 OF I ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM APPELLANT/APPELLANT/DEFENDANT:
JACOB VARGHESE S/O. P.T.VARGHESE, T.C.11/772, NALANDA JUNCTION,NANTHENCODE, KOWDIYAR VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.BECHU KURIAN THOMAS (SR.) RESPONDENT/RESPONDENT/PLAINTIFF: *1 THOMAS VARGHESE, S/O. P.T.VARGHESE,, T.C.11/771,, NALANDA JUNCTION,NANTHENCODE,, KOWDIYAR VILLAGE,, THIRUVANANTHAPURAM. (DIED, LRS IMPLEADED) ADDITIAL R2 TO R8 IMPLEADED R2. ALICE THOMAS W/O. LATE THOMAS VARGHESE, T.C. 11/906, NALANDA JUNCTION, NANTHENCODE, KOWDIYAR VILLAGE, THIRUVANANTHAPURAM -695 004
R3 P.T.VARGHESE S/O. LATE THOMAS VARGHESE, T.C. 11/906, NALANDA JUNCTION, NANTHENCODE, KOWDIYAR VILLAGE, THIRUVANANTHAPURAM -695 004 R4 MARY THOMAS, W/O. ABRAHAM SURESH THOMAS, HOUSE NO. 22 M.N. LANE, PLAMOODU, THIRUVANANTHAPURAM -695 004. R5 ANNIE THOMAS, W/O. ANIL P.JACOB, KIZHAKKAYIL PALATHINKAL, RSA.811/2006,RSA.667/2007 4 NEDUNGADAPPALLY P.O., KOTTAYAM - 686 545 R6 SHAJI PAUL, ENNASSERIL, NR.SAINT GITTS COLLEGE OF ENGINEERING , KOTTUKULAM HILLS, PATHAMUTTOM P.O., KOTTAYAM-
R7 AKHIL (MINOR) S/O. LATE ELIZABETH PAUL, ENNASSERIL, NR.SAINT GITTS COLLEGE OF ENGINEERING KOTTUKULAM HILLS, PATHAMUTTOM P.O., KOTTAYAM - 686 532 REPRESENTED BY SHAJI PAUL R8 NIDHIN (MINOR) S/O. LATE ELIZABETH PAUL, ENNASSERIL, NR.SAINT GITTS COLLEGE OF ENGINEERING KOTTUKULAM HILLS, PATHAMUTTOM P.O., KOTTAYAM - 686 532 REPRESENTED BY SHAJI PAUL THE LEGAL HEIRS OF DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDITIONAL R2 TO R8 AS PER ORDER DATED ADDL.R2 TO R8 BY ADV. SRI.G.S.REGHUNATH THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31.10.2019, ALONG WITH RSA.811/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA.811/2006,RSA.667/2007 5
JUDGMENT
Two suits were tried together. The leading case in O.S.No.2148/1999 is for the grant of declaration of prescriptive right of easement over the C schedule way. That suit was dismissed by both the courts below. The connected suit instituted by the defendant in the leading case is for a perpetual injunction and for demarcation of boundary. That was decreed by both the courts below, against which the plaintiff in the leading case came up with these two appeals.
2. The plaintiff in the leading case obtained
the registered holding in the year 1972 under Ext.A2. The defendant claims title over the property under Ext.A1 sale deed of the year 1971. They are brothers. In both the sale deed 8 links width of land was provided as way to the property of plaintiff from the main road. Two plans were also annexed to the document showing the location of the way and its width. Now instead of 8 links RSA.811/2006,RSA.667/2007 6 way the plaintiff claims 14 links way. The C schedule is the property having a width of 14 links over which the plaintiff claims prescriptive right of easement. Out of the C schedule property, the property having a width of 8 links admittedly belonged to the plaintiff covered by Ext.A2 sale deed. As such, he cannot claim any prescriptive right over the same.
3. The learned counsel for the appellant fairly
conceded that the property wherein prescriptive right was claimed was not separately shown in the plaint. But, that portion of property and the property lying as a way covered under Ext.A2 was brought together and shown as a single schedule in the plaint and submitted that what actually claimed is with respect to the remaining part of the way excluding the 8 links way covered by Ext.A2. But the Commissioner who visited the property at the instance of the plaintiff could not see any such way having a width of 14 links. No boundary demarcation noted by the Commissioner. The distance noted in between the various structures situated in RSA.811/2006,RSA.667/2007 7 the property of defendant from the opposite boundary of the way in question cannot be construed as the width of way. No substantial question of law is involved in the appeal. Both the appeals are dismissed. No costs. Sd/- P.SOMARAJAN JUDGE msp //TRUE COPY// P.A. TO JUDGE