Baby v. Simi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 29[TH] DAY OF AUGUST 2022 / 7TH BHADRA, 1944** ## **RSA NO. 271 OF 2016** **AGAINST THE ORDER/JUDGMENTAS 34/2014 OF II ADDITIONAL SUB COURT,ERNAKULAM** **OS 85/2011 OF I ADDITIONAL MUNSIFF COURT,ERNAKULAM** ## **APPELLANT/APPELLANT/DEFENDANT:** **BABY AGED 57 YEARS S/O.K.C.JACOB, KUPPAKKATTU HOUSE, IRUMPANAM, THRIPUNITHRA, ERANAKULAM. BY ADVS. SRI.DILEEP VARGHESE SMT.TESMY VARGHEESE** ## **RESPONDENT/RESPONDENT/PLAINITIFF** **SIMI AGED 37 YEARS W/O.ANOOP C.ALIYAS, CHANTYATHIL, PANDAPPILLY KARA, AARAKUZHA VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT- 686 672. BY ADVS. SRI.REJI GEORGE SMT.SIJI JOY** ## **OTHER PRESENT:** ## **SRI. REGI GEORGE,RESPONDENT** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04.08.2022, THE** **COURT ON 29.08.2022 DELIVERED THE FOLLOWING:** R.S.A.No.271/2016 **2** ## **JUDGMENT** This Regular Second Appeal has been directed against the judgment and decree in A.S.No.34/2014 on the file of Subordinate Judge's Court, Ernakulam, which arose out of judgment and decree in O.S.No.85/2011 on the file of First Additional Munsiff's Court, Ernakulam. 2. Appellant is the defendant in O.S.No.275/2009. (The parties would hereinafter be referred as per their status before the trial court). 3. The suit was one for declaration, permanent prohibitory injunction and mandatory injunction. Plaint 'A' schedule property is jointly owned by the plaintiff and her husband and is having an extent of 4.20 Ares. Defendant is the owner of plaint 'B' schedule property which is situated on the southern side of plaint 'A' schedule property. A 14 links wide pathway has been provided from plaint 'A' schedule property upto the public road for ingress and egress towards east which is described as plaint 'C' schedule pathway. The predecessor in R.S.A.No.271/2016 **3** interest of the plaintiff have also been using plaint 'C' schedule pathway openly and without any interruption. There was a thondu on the eastern side of plaint 'A' schedule property which starts from plaint 'C' schedule pathway and runs towards plaint 'B' schedule property. Rain water and other excess water falling on plaint 'A' schedule property has been flowing towards the thondu from time immemorial. The defendant subsequently converted the said thondu to a 5 links width way into plaint 'B' schedule property and it is described as plaint 'D' schedule property. Plaintiff claimed right of easement for free flow of natural and excess water from plaint 'A' schedule property through plaint 'D' schedule property. Defendant purchased 1.5 cents of property on the eastern side of plaint 'B' schedule property for exclusive use for ingress and egress to his property. But defendant demanded part of purchase price which was refused by the plaintiff. Thereafter, defendant threatened the plaintiff to construct compound wall on the eastern and western side of plaint 'D' schedule property and also in a portion of plaint 'C' schedule property so as to reduce the width of plaint C schedule. Defendant has no right to make any construction in plaint 'C' schedule property. Hence the suit was filed for a R.S.A.No.271/2016 **4** declaration of right to free flow of excess water falling in plaint 'A' schedule property through plaint 'D' schedule property and for a mandatory injunction directing the defendant to demolish the unauthorized construction made in plaint 'A' and 'D' schedule properties and to remove the soil filled and dumped in D schedule property and to keep D schedule property below the level of Plaint A schedule property. A permanent prohibitory injunction restraining the defendant from obstructing the free flow of water from plaint 'A' schedule property through plaint 'D' schedule property is also sought for. 5. Defendant filed written statement contending that plaintiff has not obtained 4.20 ares of land described in plaint 'A' schedule property. According to him, the balance property after previous sale left with the predecessor in interest of the plaintiff was only 3.35 ares. Plaintiff was having only 5 links width passage to the public road towards east. The description of plaint 'B' schedule is wrong. Defendant is in possession of 9 cents of land in plaint 'A and D' schedule property which are not divisible. When the defendant bought property as per document No.1789/1994 there was a compound wall on the northern R.S.A.No.271/2016 **5** boundary and granite foundation on the western boundary of 5 links pathway. There is no 14 links width pathway as alleged in the plaint 'C' schedule property. The width of pathway on the east is only 10 links, out of which, 5 links passage belongs to the defendant and 5 links on the northern side is of the plaintiff. It is denied that the plaintiff was flowing water through plaint 'D' schedule property. The defendant has not converted the thondu to a way as alleged. The defendant never demanded part of purchase price from the plaintiff and not threatened to construct a compound wall as alleged. 6. Exts.A1 to A9 marked and PW1 examined from the side of the plaintiff. Exts.B1 to B7 marked and DWs 1 and 2 examined from the side of the defendant. Exts.C1 to C3 were marked and CWs 1 and 2 were also examined. 7. On evaluating the facts and circumstances and evidence adduced, the learned Munsiff decreed the suit partly restraining the defendant by a permanent prohibitory injunction from making any construction in plaint 'C' schedule way and from causing any obstruction to the plaintiff in using plaint 'C' schedule way as provided in Ext.A2 sale deed. The claim of the R.S.A.No.271/2016 **6** plaintiff with respect to plaint 'D' schedule property was disallowed. Against which A.S.No.34/2014 was filed before the Sub Court, Ernakulam. 8. On re-appreciation of the facts and circumstances and evidence, the learned Subordinate Judge found that there is no irregularity and illegality in the findings arrived at by the learned Munsiff and accordingly confirmed the judgment and decree passed by the trial court and dismissed the appeal. 9. Having lost before the two forums, the appellant/defendant approaches this Court in this Second appeal. 10. The case was initially referred for mediation and it could not be settled and hence came up for admission. 11. Heard the learned counsel for the appellant/defendant as well as the learned counsel for the respondent/plaintiff. 12. Lower court records were also called for and perused. 13. According to the learned counsel for the appellant/defendant both the courts below failed to appreciate the facts and circumstances in a correct perspective. According to him, pliant 'A' schedule property is far in excess of the R.S.A.No.271/2016 **7** document by which it has been purchased and if the decree and judgments passed by the lower courts is upheld, defendant will not be able to use the plaint 'C' schedule pathway over which he has also been given equal right of use as per the sale deed. He would also contend that plaint D schedule is actually covered by his document and including the plaint D schedule he purchased the property and he has every right to construct basement to D schedule to its extreme northern end and plaintiff has right of use with respect to the remaining portion of C schedule only. He would also contend that the actual width of plaint C schedule is only 10 links, out of which 5 links has already been transferred to him and hence plaintiff has right only over the remaining 5 links width of C schedule way. Applicability of the maxim “falsa demonstratio non nocet” is also pressed into service by the counsel for the appellant since wrong mentioning of northern boundary as public pathway will not disentitle his 5 links pathway confronting with 'C' schedule pathway on the east. 14. The learned counsel for the respondent/plaintiff on the other hand would contend that there is no reason to interfere with the concurrent findings of facts entered into by the courts R.S.A.No.271/2016 **8** below and the entire attempt of the defendant is to trespass into plaint C schedule property and reduce its width by making construction encroaching into plaint A schedule property. 15. Plaint schedule properties admittedly belonged to one Subramania Iyer originally. Plaint 'A' schedule property was purchased by the plaintiff and her husband in the year 2005 as per Ext.A2 document. Defendant purchased plaint 'B' schedule property as per Ext.B3 in the year 1994. According to the plaintiff, while purchasing plaint 'A' schedule property, a 14 links width pathway has been provided from plaint 'A' schedule property to the public road for ingress and egress and that way has been described as plaint 'C' schedule pathway. The extent of plaint 'C' schedule pathway is not in dispute. Plaintiff further alleged that there was a thondu on the eastern side of plaint 'A' schedule property starting from its south-western end of plaint 'C' schedule property and runs towards south to plaint 'B' schedule property. Rain water flows through the plaint 'D' schedule property and though plaintiff claimed prescriptive right of easement for drawing water through plaint 'D' schedule property thondu, that was found against by the two courts and R.S.A.No.271/2016 **9** that fact is not further challenged by plaintiff. The trial court as well as the first appellate court found concurrently that plaintiff has right over plaint 'C' schedule pathway having a width of 14 links. The specific contention of the learned counsel for the defendant was that the defendant purchased the property in 1994 prior to the purchase of plaint 'A' schedule property by the plaintiff and at the time of executing his sale deed his vendor sold 5 links pathway and he purchased the property with 5 links width way towards north from north eastern corner of the property. He would also contend that 6 cents purchased by him is including the 5 links pathway. He would also contend that the width of plaint 'C' schedule property is only 10 links leading from plaint 'A' schedule property towards eastern public road and out of that 10 links width of the pathway plaintiff is having right of way only over the 5 links width pathway lying on the northern half of plaint 'C' schedule property. The commissioner was appointed and Ext.C1 report and Ext.C1(a) plan were produced and brought in evidence, in which, the commissioner demarcated the proprieties of the plaintiff and defendant and also the plaint C and D schedule pathways. The commissioner's report and sketch would reveal that property presently possessed by the R.S.A.No.271/2016 **10** defendant is 6.45 ares excluding 5 links way portion and its measurement is shown as 2.43 ares. So obviously the way portion leading towards north from the north-eastern corner of plaint 'B' schedule property is not included in 6 cents sold to the defendant. The commissioner also shown in Ext.C1(a) that there is a portion marked as plot 'A' which is the disputed area over which defendant claimed exclusive right. If that contention is upheld the plaintiff cannot enjoy plaint 'C' schedule property in its full width and the width will be reduced to half. Admittedly, there is no visible boundary separating the plaint 'C' schedule property as contended by the defendant. The contention of the defendant that there had been foundation on the eastern side of plaint 'A' schedule property and northern side of plaint 'D' schedule property has been found against by the first appellate court also. It is also found that there is no specific pleading in the written statement regarding the above foundation on the boundaries. On examining Ext.B1 and B2 the prior title deeds of the defendant it could be seen that apart from a description of 5 links pathway starting from north-eastern corner of the defendant's property, there is no mention about any demarcating foundation or other structures in the western boundary of plaint R.S.A.No.271/2016 **11** 'D' schedule property. Ext.B3 document by which the defendant purchased plaint 'B' schedule property also specifically states about 5 links width pathway towards north upto the public road. The learned counsel for the defendant would contend that as per Ext.C1(a) the length of D schedule has been shown as 9.4 mtrs and that will come upto the half of plaint 'C' schedule property and that has been demarcated in Ext.C1(a) also. But during evidence defendant categorically admitted that the western boundary line of plaint 'D' schedule property have a length of 7.50 mtrs and further he categorically admitted that the length of western boundary of plaint 'D' schedule property is 7.50 mtrs. So obviously the sketch prepared by the surveyor based on resurvey showing the length of plaint 'B' schedule property as 9.4 mtrs is not actually in existence in site. So also while the property was sold to the plaintiff and his predecessors they have been given right of use of 14 links pathway to the public road. Ext.A2 is the certified copy of sale deed by which the plaintiff purchased the plaint 'A' schedule property. Ext.A3 prior title deed of plaint 'A' schedule property which is of the year 1976 which would show that the predecessor of the plaintiff has been given 14 cents 300 sq. links of property and 14 links pathway left R.S.A.No.271/2016 **12** towards east from the said property and also the right of use of 14 links pathway has been left open towards east from the said property. Subsequently as per Ext.A2 the purchaser Karunakaran of Ext.A3 sold the property to the plaintiff with the same description and right of use of 14 links pathway. So even before the purchase of property by the defendant in the year 2005 the plaintiff's predecessor has been given the right of use over 14 links pathway. So subsequent purchaser of plaint 'B' schedule property, the defendant, cannot curtail the right of plaintiff to use 14 links wide pathway which has been left out for the use of plaint 'A' schedule property. If the contention of the defendant is accepted, the plot 'A' shown in Ext.C1(a) plan is set apart in plaint 'D' schedule, it will restrict the right of entry to plaint 'A' schedule property from plaint 'C' schedule pathway. The right of easement by grant given to the plaintiff over plaint 'C' schedule property runs with the land and the defendant has no manner of right to cause any hindrance to the rights so granted to the plaintiff and his predecessor by the original owner of the property. Though the length of plaint 'D' schedule way in eastwest direction has been shown as 9.4 mtrs in Ext.C1(a) plan, as per the resurvey measurements as borne out from Ext.B4, as R.S.A.No.271/2016 **13** rightly contended by the learned counsel, resurvey records will not confer any title upon any party. 16. The learned counsel for the plaintiff in this context bring to my attention to Velayudhan v. Padmanabhan [1988 (2) KLT 417] wherein a distinction between right of way acquired by grant as well as easement by necessity has been dealt with and it has been held that the question whether an easement is one acquired by grant or as of necessity is not to be decided on the absolute necessity of it. It is the nature of the acquisition that counts. Many easement acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense it cannot be enjoyed at all without it. But easement of grant is a matter of contract between the parties and it may have its own consideration in some form or other and in the matter of grant the parties are governed by terms of the grant and not anything else. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Easements Act even though it may also be an absolute necessity for the person in whose favour the grant is made. So in the present case plaint 'C' schedule pathway has been provided to the plaintiff as per his title deed R.S.A.No.271/2016 **14** and hence it is a grant by express terms and which is covered by the prior title deed also. So that right of easement by grant with respect to plaint 'C' schedule property runs with the plaint 'A' schedule property and hence defendant has no manner of right to defeat the right of plaintiff to use plaint 'C' schedule way. The learned Munsiff as well as the first appellate court has concurrently found the plaintiff's right of use of plaint 'C' schedule property obtained as per title deed. 17. The learned counsel also relies on John Varghese (Pazhampallil) v. Sweena Anna Thomas [2013 (4) KHC 612] , wherein it has been held that as per a document a right has been conferred over a pathway for its enjoyment all transferees have indefeasible right to use that pathway and whenever there is obstruction caused to the right of use of that way the aggrieved party need not plea or prove any prescriptive right of easement over such pathway and the court has to examine the right claimed by the plaintiff and the defendant on the strength of the document. 18. In the present case, the document executed in favour of the plaintiff as well as in favour of his predecessor in interest also would prove that 14 links wide pathway has been provided R.S.A.No.271/2016 **15** for ingress and egress to plaint 'A' schedule property. So, when the defendant caused obstruction to the use of said way, plaintiff can very well approach the court to substantiate his right of way by the mere production of the document. 19. It is true that the learned counsel for the defendant would claim the benefit of the maxim falsa demonstratio non nocet, meaning if there be an adequate and sufficient definition, with convenient certainty of what is intended to pass by a deed, any erroneous addition to the description will not vitiate it. 20. The learned counsel also relies on Savarimuthu Nadar Chellayan Nadar v. Kanakku Kali Pillai Padmanabha Pillai [1957 KLT 825] . In that decision the above maxim has been followed and it has been held that where there are two conflicting descriptions of the subject matter of a grant or two conflicting parts of the same description, that which is the more certain and stable and the least likely to have been mistaken or to have been inserted inadvertently must prevail if it sufficiently identifies the subject matter. The preference ought to be given to that element of the description of the subject matter which is most consistent with the intention of the parties to be collected from other parts of the deed, illumined if necessary by the surrounding R.S.A.No.271/2016 **16** circumstances. But in this case the prior title deed of the plaintiff in favour of his predecessor in interest of the year 1976 describes about 14 links pathway for access to plaint 'A' schedule property and sale of property to the predecessor of the defendant is subsequent to that. Moreover though 5 links width way has been provided towards north from the north-eastern corner of the defendant's property it has been specifically described as upto the public road and its length is also not specified. So when there is already a right of use given with respect to plaint 'C' schedule property to plaint 'A' schedule property which runs with that land the subsequent sale of property to the defendant by providing plaint 'D' schedule way upto the public road will not in anyway taken as a conflict in description so as to attract the maxim falsa demonstratio non nocet quoted by the learned counsel. 21. Lenard counsel for the plaintiff in this context bring to my attention Ibrahim and Ors. v. Saythumuhammed and Ors. [2013 (4) KHC 241] wherein it has been held that questions of tile and possession cannot be decided by survey authorities or survey records and simply because a portion of plaintiff's property is shown in resurvey records as with the defendant's R.S.A.No.271/2016 **17** survey number, that would not lead to an inference that possession was with the defendant. In Thomas and Ors. v. Philip [2022 (4) KHC 451] a learned Single Judge of this Court held that decision of survey authorities shall not affect the right and title of properties acquired by a party as per a valid title deed and right and title of property have to be determined by title deed and not with survey demarcation. 22. So on a close scrutiny of the judgment passed by the learned trial court as well as the first appellate court, I am of the considered view that both the courts have meticulously considered the facts, circumstances and evidence adduced in a correct perspective and come to a right conclusion regarding the right of plaintiff over plaint 'C' schedule way. So I do not find any substantial question of law emerging for consideration for entertaining this Regular Second Appeal. In the result, appeal is found to be devoid of any merit. Hence dismissed. No cost. Sd/- ## **M.R.ANITHA** SHG **JUDGE**