Aboobacker Siddique v. Ashokkumar and Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Bhavadasan
Judgment Date: 2014-11-21
Court Decision / Holding: The court declined to interfere with the lower appellate court’s order; the original petition was dismissed. It directed the trial court to dispose of the suit based on the evidence adduced, untrammeled by observations in the appellate or High Court judgments, and to endeavor for expeditious disposal if the matter is ripe for trial.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

ABOOBACKER SIDDIQUE

Respondents

ASHOKKUMAR
SANTHI. K
MUSTHAFA
RAMAKRISHNAN

Legal Representation & Advocates

Counsels for Petitioners

• Sri.K.Ravi (Pariyarath)

Case Synopsis & Summary

This Original Petition (Civil) No.2737/2014 challenges Ext.P4, the order in CMA 9/2014 in I.A.2736/13 in O.S.374/2013 on the file of the Sub Court, Ottapalam. The suit concerns a claim for prescriptive right of easement over a western pathway adjacent to plaint item Nos. 1 and 2. The 2nd plaintiff, who purchased from the 1st plaintiff in 2005, asserts that the road has existed and been used since 1993, enabling access to and from the properties; the plaintiffs sought an injunction to restrain the defendants from obstructing the pathway. The trial court, after marking exhibits (Exts. A1–A4, B1–B3, C1 and C1(a)), granted relief to the 2nd plaintiff on the basis of an electric post along the path and an electric connection to the 2nd plaintiff’s house drawn from that post. The lower appellate court (CMA 9/2014) reversed, finding that the 2nd plaintiff failed to establish a prima facie easement; it noted that plaint A schedule property abuts a public road, the 1st plaintiff’s property is adjacent to a government Ayurveda hospital, and the 2nd plaintiff’s house is relatively new (constructed about 5–6 years before suit). The High Court, while acknowledging the appellate court’s evaluation, found no ground to interfere with the lower court’s analysis, emphasized the recent construction and the lack of demonstrable long-continued use, and directed the trial court to dispose of the suit on evidence without predeterminations of this Court, expediting the process if ripe for trial.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner-contends that the lower appellate court erred in reversing the trial court’s interim relief by recognizing the defendants’ claim that the pathway is private and that prescription had not been proven. The 2nd plaintiff’s case rests on a long-standing use of the western pathway since 1993, the purchase of the property from the 1st plaintiff in 2005, and the presence of an electric post along the route that connected to the 2nd plaintiff’s house; reliance on the cited decision (John Varghese Pazhampallil) is urged to show that a common boundary with a pathway may support easement unless the adjacent property proves private ownership. The petitioner asked the court to sustain the trial court’s findings and prevent dismissal of the suit without a full trial on evidence.

Contentions of Respondents

The respondents submit that the pathway in question is a private way serving the 1st defendant’s property, with a public road on the southern boundary; they argue that the 2nd plaintiff obtained the property recently and built the house only 5–6 years prior to suit, making prescriptive use unlikely. They contend that mere presence of an electric post and connection to the house do not establish a prescriptive easement, and the lower appellate court’s reversal is warranted by the evidence on record.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
John Varghese (Pazhampallil) v. Sweena Anna Thomas	2013 (4) KHC 612	Mentioned Only	Cited by the petitioner to support the proposition that a common boundary with a pathway may permit prescriptive use, but the High Court did not adopt or base its decision on this authority; it discusses the case in context without endorsing its principle.

Extracted Judgment Text

Exact text extracted from official judgment records.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN FRIDAY, THE 21ST DAY OF NOVEMBER 2014/30TH KARTHIKA, 1936 OP(C).No. 2737 of 2014 (O) -------------------------------AGAINST THE ORDER IN CMA 9/2014 IN I.A.2736/13 IN O.S.374/13 of SUB COURT, OTTAPPALAM DTD. 22.08.2014 PETITIONERS: ---------------- ABOOBACKER SIDDIQUE, AGED 35 YEARS, S/O. MUHAMMED, THAZHAVARATHIL HOUSE, CHUNAGAD P.O., CHUNAGAD AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.K.RAVI (PARIYARATH) RESPONDENTS: - ----------------- 1. ASHOKKUMAR, AGED 48 YEARS, S/O. KANNADASAN, THAZHAVARATHIL HOUSE, CHUNAGAD P.O., CHUNAGAD AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT - 678 001. 2. SANTHI. K, AGED 42 YEARS, W/O.ASHOKKUMAR, AGED 48 YEARS, S/O. KANNADASAN, THAZHAVARATHIL HOUSE, CHUNGAD P.O., CHUNGAD AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT - 678 001. 3. MUSTHAFA, AGED 48 YEARS, S/O. KUNHAYAMU, MULAKKAL HOUSE, CHUNGAD P.O., CHUNGAD AMSOM DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT - 678 001. 4. RAMAKRISHNAN, AGED 57 YEARS, S/O. CHILAMBUNNI THARAKAN, ERAMTHOTTIL HOUSE, VELLINEZHI P.O., OTTAPPALAM TALUK. PALAKKAD - 678 001. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).No.2737/2014 A P P E N D I X ## PETITIONER'S EXHIBITS: EXT. P1 : COPY OF PLAINT IN O.S.374/2013 OF COURT OF MUNSIFF, OTTAPALAM DTD. 8.10.13. EXT. P2 : COPY OF COMMISSIONERS REPORT AND PLAN, FILED IN I.A.2735/13 IN O.S.374/13 OF MUNSIFF COURT, OTTAPALAM DTD. 17.10.13. EXT. P3 : COPY OF ORDER PASSED IN I.A.2736/13 IN O.S.374/13 OF MUNSIFF COURT, OTTAPPALAM DTD. 19.12.14. EXT. P4 : COPY OF ORDER PASSED IN C.M.A.9/14 IN I.A.2736/13 IN O.S.374/13 OF SUBORDINATE JUDGE, OTTAPALAM DTD. 19.12.14. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp **P.BHAVADASAN, J. ------------------------------------------------Original Petition (Civil) No.2737 OF 2014 ------------------------------------------------Dated this the 21[st] day of November, 2014.** ## **J U D G M E N T** This Original Petition is directed against Ext.P4 order in C.M.A.9/2014 in I.A.No.2736/2013 in O.S.No.374/2013 before the Sub Court, Ottapalam. 2. The petitioner was the 2[nd] plaintiff in O.S.No.374/2013 before the Munsiff Court, Ottapalam. The plaint item No.1 belongs to the 1[st] plaintiff and item No.2 belongs to the 2[nd] plaintiff. It is an admitted case that the 2[nd] plaintiff purchased the property from the 1[st] plaintiff in 2005. The plaintiffs thereafter laid a claim for prescriptive right of easement in respect of the way which is alleged to be running along the western side of the plaint item Nos.1 and 2 properties. It is contended that the way has been in existence at least from 1993 onwards and they have been using it as a matter of right. Complaining about the obstructions caused by the defendants to the way, the plaintiffs laid a suit for injunction. Along with the **O.P.(C) No.2737/2014** **2** suit, they filed I.A.No.2736/2013 for interim injunction. The defendants entered appearance and objected to the claim made by the plaintiffs. The defendants contended that even though plaintiffs laid a claim for prescriptive right of easement, the way in question is a private way belonging to the 1[st] defendant and the plaintiffs have no manner of right to use the same. 3. For the purpose of the I.A, the trial court marked Exts.A1 to A4 and Exts.C1 and C1(a). Exts.B1 to B3 were also marked. The trial court granted relief to the 2[nd] plaintiff on the ground that there is an electric post standing on the pathway and electric connection to the house of the 2[nd] plaintiff is taken from that post. Aggrieved defendants carried the matter in appeal as C.M.A.No.9/2014. The lower appellate court, on re-appreciation of the materials before it, came to the conclusion that the 2[nd] plaintiff has not been able to establish his right over the way. It was found that the plaint A schedule property has a public road on the southern boundary and on the western side of item No.1 plaint A schedule property is the Government Ayurveda Hospital and behind the same is item No.2 property which is occupied by **O.P.(C) No.2737/2014** **3** the 2[nd] plaintiff. The lower court noticed that the 2[nd] plaintiff had obtained the property from the 1[st] plaintiff. The lower appellate court found that the entire property covered by Ext.A1 has been set apart to the share of the 1[st] plaintiff and while he was in enjoyment of the property, he would have had no occasion to use the pathway in question for the simple reason that he had public way on the southern side of his property. It is also found that house in item No.2 which is now occupied by the 2[nd] plaintiff was constructed only 5-6 years back. This persuaded the lower appellate court to come to the conclusion that the claim of prescriptive right of easement prima facie cannot be accepted. On the basis of these findings, the order of the trial court was reversed and I.A was dismissed. 4. Sri.Ravi.K Pariyarath, learned counsel appearing for the petitioner contended that the lower appellate court was not justified in allowing the appeal in the light of the fact that the trial court found that there does exist a way and also that there is an electric post standing of way and electric connection to the house of the 2[nd] plaintiff is taken from that post. Further **O.P.(C) No.2737/2014** **4** contention is that the definite averment in the plaint was that the pathway on the western side has been in use by the plaintiffs from 1993 onwards and therefore, they have acquired the necessary right. At any rate, according to the learned counsel, the facility available to the 1[st] plaintiff is not available to the 2[nd] plaintiff and the trial court was careful enough to grant relief only to 2[nd] plaintiff. It was therefore contended that the order of the lower appellate court is unsustainable. 5. Probably, at the first blush, the contention may look very attractive. But, it has to be borne in mind that the 2[nd] plaintiff obtained the property from the 1[st] plaintiff and the lower appellate court had found that the building where the 2[nd] plaintiff now resides has been put up only 5-6 years prior to the filing of the suit. As rightly noticed by the court below, prior to the putting up of building in item No.2, it is extremely difficult to believe that the plaintiffs would have been using the pathway on the western side especially when the 1[st] plaintiff had direct access to the public road on the southern side. 6. Learned counsel appearing for the petitioner relied on **O.P.(C) No.2737/2014** **5** the decision in _**John Varghese (Pazhampallil)** vs._ _**Sweena Anna Thomas**_ (2013 (4) KHC 612) and contended that there is common boundary with a pathway besides his property, then unless that pathway is shown to be the private property of another, he can make use of that way. 7. The defendants in the suit had a definite contention that the pathway of which right is now claimed is a private way to their property and the plaintiffs have no manner of right over the said way. The lower appellate court, on appreciation of the material before it found that that probably is true. The court below has considered the matter in considerable detail and based on the material before it, the court had come to the conclusion that the 2[nd] plaintiff has not been able to establish prima facie his case and that finding cannot be said to be perverse or illegal in the light of the materials now available and the facts and circumstances of the case as discussed by the court below. The mere fact electric post is standing on the pathway and electric connection had been taken from that to the house of the 2[nd] plaintiff cannot be ground to accept the plea of **O.P.(C) No.2737/2014** **6** prescriptive right of easement especially when the 2[nd] plaintiff admitted that he purchased the property from the 1[st] plaintiff in 2005 and the house where the 2[nd] plaintiff resides has been put up only very recently. As rightly noticed by the court below, prior to that the possibility of the plaintiffs using the pathway is very remote. For the above reasons, this Court finds no grounds to interfere with the order passed by the court below. The original petition is dismissed. However, it is made clear that the trial court shall dispose of the suit based on the evidence adduced before it and untrammelled by any of observations made by the lower appellate court or this Court. The trial court may make every endeavour to dispose of the suit as expeditiously as possible provided it is ripe for trial. ## **P.BHAVADASAN JUDGE** smp