# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN**
**WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941**
**FAO (RO).No.42 OF 2019**
**AGAINST THE JUDGMENT IN AS 25/2016 DATED 29-03-2019 OF III ADDITIONAL DISTRICT COURT, KOLLAM**
**AGAINST THE JUDGMENT IN OS 751/2009 DATED 02-07-2015 OF PRINCIPAL MUNSIFF COURT , KOLLAM**
## **APPELLANT/RESPONDENT/DEFENDANT:**
**ANTONY HILAN @ JINU AGED 42 YEARS S/O. HILAN, JINUS VILLA, ERAVIPURAM P.O., THEKKUMBHAGAM CHERRY, ERAVIPURAM VILLAGE, KOLLAM, PINCODE-691 011.**
**BY ADVS. SRI.A.JAYASANKAR SRI.MANU GOVIND SRI.S.SABARINADH**
## **RESPONDENT/APPELLANT/PLAINTIFF:**
**ANIL KUMAR S/O. GOPINATHAN, ANIL NIVAS, TRA 11A, UDAYAMARTHANDAPURAM CHERRY, MUNDAKKAL VILLAGE, KOLLAM-691 010.**
**R1 BY ADV. SRI.R.SATHISH KUMAR**
**THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR ADMISSION ON 11.03.2020, ALONG WITH FAO (RO).44/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**FAO (RO).Nos42 & 44 OF 2019**
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**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN**
**WEDNESDAY, THE 11TH DAY OF MARCH 2020 / 21ST PHALGUNA, 1941**
**FAO (RO).No.44 OF 2019**
**AGAINST THE JUDGMENT IN AS 27/2016 DATED 29-03-2019 OF III ADDITIONAL DISTRICT COURT, KOLLAM**
**AGAINST THE JUDGMENT IN OS 751/2009 DATED 02-07-2015 OF PRINCIPAL**
**MUNSIFF COURT , KOLLAM**
## **APPELLANT/RESPONDENT/DEFENDANT:**
**ANTONY HILAN @ JINU, AGED 42 YEARS S/O.HILAN, JINUS VILLA, ERAVIPURAM P.O., THEKKUMBHAGAM CHERRY, ERAVIPURAM VILLAGE, KOLLAM-691011.**
**BY ADVS. SRI.A.JAYASANKAR SRI.MANU GOVIND SRI.S.SABARINADH**
## **RESPONDENT/APPELLANT/PLAINTIFF:**
**ANIL KUMAR, S/O.GOPINATHAN, ANIL NIVAS, TRA 11A, UDAYAMARTHANDAPURAM CHERRY, MUNDAKKAL VILLAGE, KOLLAM-691010.**
**R1 BY ADV. SRI.R.SATHISH KUMAR**
**THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR ADMISSION ON 11.03.2020, ALONG WITH FAO (RO).42/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**FAO (RO).Nos42 & 44 OF 2019**
**3**
## **J U D G M E N T**
The defendant in O.S.No.751/2009, on the files of the Principal Munsiff's Court, Kollam, has preferred these appeals, impugning the common judgment in A.S.No.25/2016 and A.S.No.27/2016 of the Third Additional District Court, Kollam, which had been filed by the respondent/plaintiff against the judgment and decree of the Trial Court in the suit and the counter claim preferred by the appellant.
2. According to the appellant, the suit was filed by the respondent herein as plaintiff, seeking a decree of permanent prohibitory injunction restraining him from trespassing into plaint B schedule property, or from reducing its width and obstructing the use of way by the plaintiff for ingress and egress to his property - which has been described in plaint A schedule - from the public road on the southern side.
3. The appellant submits that, as is evident from the plaint averments, the entire claim of the respondent was edificed on a right of easement by prescription over the plaint schedule property with a width of 3 meters and that evidence
**FAO (RO).Nos42 & 44 OF 2019**
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has also been led in conformity with such a claim. He says that after the suit was tried, the Trial Court dismissed the suit and allowed his counter claim, wherein, he had conceded that the plaintiff is entitled to use a pathway with a width of 1.5 meters under an easement by grant; and thus ordered that the boundaries be fixed.
4. The appellant submits that the judgment and decree of the Trial Court was thereupon challenged by the respondent/plaintiff, which has now led to the impugned judgment of the First Appellate Court, whereby, the findings of the Trial Court has been set aside and the suit has been remanded for fresh Trial and consideration, holding that what the plaintiff, in fact, intended in the plaint averments was to enforce a right of easement by grant and not an easement by prescription. The appellant contends that the course now adopted by the First Appellate Court is completely irregular, particularly because there was no opposition to the report of the Advocate Commissioner, which has been marked on record as Ext.C2(b), when the counter claim had been disposed of and that the Trial Court has recorded so in the judgment and decree,
**FAO (RO).Nos42 & 44 OF 2019**
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thus accepting it and fixing the boundary in terms of the said report.
5. The appellant, thus vehemently, submits that A.S.No.27/2016, from which F.A.O.(RO)No.44/2019 has arisen, was not maintainable before the First Appellate Court and that the said Court, therefore, could not have allowed it or remanded the matter for fresh trial.
6. In response to the afore submissions made on behalf of the appellant by Sri.Jayasankar, the learned counsel appearing for the respondent - Sri.R.Satheesh Kumar, began his submissions by saying that the claim impelled by his client in the plaint, for right of use of the plaint B schedule property with a width of 3 meters edificed on an easement by prescription, was in error and that the plaint averments read as a whole would clearly show that what he really was claiming was a right through a grant. He says that the plaint B schedule property was a pathway given to him under his title documents by his predecessor-in-interest and that he, in turn, derived such right from his earlier title deed, which finally goes back to a partition deed between the original sharers, the original of
**FAO (RO).Nos42 & 44 OF 2019**
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which has been marked on record as Ext.B2. He says that therefore, the First Appellate Court was without error in having remanded the suit for fresh Trial because, what is important is the manner in which the right of way has been provided in the Partition Deed, namely Ext.B2 and not what the Advocate Commissioner has found in Ext.C2 (b) report. He says that the First Appellate Court has correctly found the issues in his client's favour, thus remitting the matter to the Trial Court for fresh Trial and prays that these appeals be not entertained by this Court.
7. I have considered the afore submissions and have also examined the pleadings available on record.
8. As I have already said above, the specific plea of the plaintiff before the Trial Court, as is evident from the plaint averments, is that he is entitled to use plaint B schedule property on the strength of an easement by prescription.
9. However, before the First Appellate Court, he resiled from this position and took the stand that what he was entitled to was a grant based on his earlier title documents as also Ext.B2 Partition Deed. I notice that the First Appellate Court has
**FAO (RO).Nos42 & 44 OF 2019**
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acceded to this contention by stating that, going by the plaint averments as a whole, what the plaintiff has actually sought is an easement by grant and not an easement by prescription and that the description of his remedy in such manner in the plaint can only be seen to be an inadvertent error.
10. Even if I am to find favour with the First Appellate Court with respect to the afore conclusion, there are certain other issues which had not been considered by the said Court and which are crucial to the adjudication of the issues in this case.
11. For the first, it is the specific case of the plaintiff that he is entitled to use plaint B schedule property with a width of 3 meters on the strength of an express grant, which is available in his document as also the prior documents, including Ext.B2. Therefore, the only case that he could have built up was a right over the property by express grant and not by an easement, be that prescription or otherwise.
12. For the second, the appellant is specific in his contention that plaint B schedule property had been used by him for the last 30 years uninterruptedly (though shown as
**FAO (RO).Nos42 & 44 OF 2019**
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'interpretedly' in the plaint) and therefore, that he is entitled to an easement over it. Obviously, therefore, these two contentions cannot go along with each other, since they are completely contradictory and antipodean to each other.
13. For the third, the Trial Court has recorded in the judgment and decree impugned before the First Appellate Court that the plaintiff had not filed any objections to Ext.C2(b) report of the Advocate Commissioner, based on which, the counter claim had been allowed. Obviously, therefore, the question whether an appeal could have been preferred against the judgment in the counter claim was one that the First Appellate Court ought to have considered very specifically, especially, in view of the judgment of the Hon'ble Supreme Court in **State of Maharashtra v. Ramdas Shrinivas Nayak and Another [1982 KHC 473],** which I do not see the said Court having done in any manner, in the impugned judgment and decree.
14. Finally, it is pertinent that even the appellant/defendant concedes that the plaintiff is entitled to use a pathway of a width of 1.5 meters based on the express grant
**FAO (RO).Nos42 & 44 OF 2019**
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in the Partition Deed, namely Ext.B2; and therefore, the sole question that should have gained the attention of the Court was as to the width of the pathway and nothing else. The question of the rights over such pathway, be that easement or grant, would be of no consequence at all when both sides now say that they are tracing their rights to the Partition Deed.
15. Unfortunately, the afore issues have not been considered by the First Appellate Court in its proper perspective, but it has gone ahead and remanded the matter to the Trial Court for fresh disposal, setting aside the judgment and decree issued by it earlier, merely on the ground that the description of the right claimed by the plaintiff is an error and therefore, that the suit will have to be decided based on his claim of right over the plaint B schedule property by express grant.
16. I am afraid that this course adopted by the First Appellate Court cannot find my favour and cannot be, therefore, granted imprimatur by this Court. I am consequently, of the view that these appeals will have to be reconsidered by the First Appellate Court, taking note of the afore circumstances, as also
**FAO (RO).Nos42 & 44 OF 2019**
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the contentions regarding the maintainability of A.S.No.27/2016; which shall be done by it, as expeditiously as is possible, but not later than six months from the date or receipt/production of a copy of this judgment.
To facilitate the above, I direct the parties to appear before the First Appellate Court on 30.03.2020.
In the nature of the circumstances and facts seen above, I deem it appropriate not to make any order as to costs and to direct the parties to suffer their respective costs.
**SD/-**
rp
**DEVAN RAMACHANDRAN JUDGE**
