High Court of KeralaSingle Judge2022-07-25Regular second appeal dismissed; injunction not...

Koniporiyan Balan v. Government of Kerala & District Collector (RSA No. 62 of 2006)

Case / Petition Number:RSA No. 62 of 2006

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sathish Ninan, J.
Judgment Date: 2022-07-25
Court Decision / Holding: Regular Second Appeal dismissed; injunction not granted. The court held that the plaintiff is not entitled to a right of access to the highway through the puramboke land between the plaint property and the highway, as the intervening land is not a road margin and thus cannot support an easement by prescription.
Final Disposition: Regular second appeal dismissed; injunction not granted.

Parties to the Case

Appellants / Petitioners

Koniporiyan Balan
Kallathil Anup
Kallathil Mearish
Kallathil Shearish

Respondents

Government of Kerala, represented by the Chief Secretary, Government Secretariat, Trivandrum
District Collector, Kannur

Legal Representation & Advocates

Counsels for Petitioners

• K.P. Dandapani (Sr.)
• Millu Dandapani

Counsels for Respondents

• Rekha C. Nair, Sr. Government Pleader

Case Synopsis & Summary

Koniporiyan Balan v. Government of Kerala & District Collector (RSA No. 62 of 2006) is a Kerala High Court Regular Second Appeal arising from a suit for prohibitory injunction to prevent obstruction of the plaintiff's alleged prescriptive right of way to access the southern highway. The plaint property adjoins a national highway on the south, with a puramboke strip in between. The plaintiff contends a prescriptive easement to pass over the puramboke to reach the highway. The trial court granted the injunction in favour of the plaintiff, but the first appellate court reversed, holding that the intervening puramboke land is not merely road margin and that a natural right of access for an adjoining landowner cannot be claimed through intervening government land. The appellant-plaintiff challenged the appellate decision in RSA 62/2006, arguing that the abovementioned easement principle is well settled, citing precedents such as Tanoor Panchayat v. Kunhiamutty and related cases. The High Court, while acknowledging that the general rule permits access for land adjoining a highway, distinguished the present facts due to the intervening puramboke, which contains a village office and cattle pound and is not a portion of the highway margin. Consequently, the court held that the plaintiff is not entitled to the right of access, and the Regular Second Appeal was dismissed.

Legal Doctrines & Maxims

Right of access to highways by an adjoining owner (easement by prescription)
Easement by prescription as a recognized doctrine of property law
Intervening land (puramboke) breaking the chain of easement or road margin
Road margin can be considered part of the highway in some interpretations

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant-plaintiff urged that the adjoining owner's right to access a highway exists at all points where his land touches the highway, grounded in the well-settled principle of easement by prescription. He contended that the puramboke land between his property and the highway should not defeat his right of unobstructed access, and relied on precedents declaring a broad right of access for adjoining lands, while acknowledging that road margins may be part of the highway in some contexts. The absence of a specific width or commissioner’s plan for the path did not negate the claim, since the right of access attaches to the touchpoint with the highway. He pressed that the government land in between should not bar prescriptive rights and urged the appellate court to apply the established rule to the facts.

Contentions of Respondents

The respondents argued that the puramboke land between the plaint schedule property and the highway is not a road margin and therefore cannot serve as a conduit for easement. They emphasized that the right of an adjoining owner to access the highway only applies where the land itself abuts the highway, and not where intervening land, even if government-owned, lies in between. They asserted that the trial court’s blanket injunction was inappropriate given the intervening puramboke containing public offices and cattle pounds, which cannot be treated as a mere margin of the road. The respondents contended that the plaintiff’s claim of prescriptive easement fails on these facts, and the appellate court correctly dismissed the suit. They relied on the established rule and sought upholding of the decision that the intervening land breaks the easement chain.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Tanoor Panchayat v. Kunhiamutty	(1978) KLT 813	Positive	Cited as part of the well-settled principle that adjoining landowners have a right of access to a highway where land abuts the highway.
M.V. Joseph v. District Magistrate	1996 (2) KLT 490	Positive	Cited to support the easement by prescription principle for adjoining lands.
Ummaya Hamza v. Calicut Corporation	2020 (6) KLT 674	Positive	Cited as authority for the general rule of access for adjoining property to the highway.
Sebastian Joseph v. Chirakkadavu Grama Panchayat	2021 (6) KLT 10	Positive	Cited in relation to the ongoing doctrine of easement and access rights with respect to highway adjacency.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944 RSA NO. 62 OF 2006** **AGAINST THE JUDGMENT DATED 09.02.2005 IN AS 19/1999 OF DISTRICT COURT, THALASSERY. AGAINST THE JUDGMENT DATED 31.07.1998 IN OS 31/1996 OF PRINCIPAL MUNSIFF COURT, KANNUR** ## **-----** ## **APPELLANT/RESPONDENT/PLAINTIFF:** 1 KONIPORIYAN BALAN, S/O KALLIANI, AGED 67 YEARS, R/O DWARAKA, ANDOOR AMSOM AND DESOM, TALIPARAMBA TALUK, KANNUR. **(DIED-LRS IMPLEADED)** ## * **ADDL. A2 TO A4** ADDL.A2 KALLATHIL ANUP, S/O.SREEDHARAN,AGED 57 YEARS,RESIDING AT DEVI BHAVANAM, THALIKKAVU P.O.,KANNUR AMSOM DESOM,KANNUR-670 001. ADDL.A3 KALLATHIL MEARISH, S/O.SREEDHARAN,AGED 53 YEARS,RESIDING AT DEVI BHAVANAM, THALIKKAVU P.O.,KANNUR AMSOM DESOM,KANNUR-670 001. ADDL.A4 KALLATHIL SHEARISH S/O.SREEDHARAN,AGED 50 YEARS,RESIDING AT DEVI BHAVANAM, THALIKKAVU P.O.,KANNUR AMSOM DESOM,KANNUR-670 001. * [ADDL. APPELLANTS 2 TO 4 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST APPELLANT AS PER ORDER DATED 26.11.2021 IN IA.1/2021 IN RSA.62/2006.] BY ADVS. K.P.DANDAPANI (SR.) MILLU DANDAPANI ## **RESPONDENTS/APPELLANTS/DEFENDANTS:** 1 GOVERNMENT OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM-695 001. **RSA NO. 62 OF 2006 -2-** 2 THE DISTRICT COLLECTOR, COLLECTORATE, KANNUR. BY SMT.REKHA C. NAIR, SR. GOVERNMENT PLEADER THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R. S. A. No.62 of 2006** **= = = = = = = = = = = = = = = = = = Dated this the 25[th] day of July, 2022** ## **J U D G M E N T** The plaintiff is the appellant. The suit is one for prohibitory injunction against obstructing the plaintiff's user of a way. The suit was decreed by the trial court. The decree was reversed in appeal and the suit was dismissed. 2. The plaint schedule property belongs to the plaintiff as per Ext.A1 Sale Deed of the year 1973. On the southern side of the plaint schedule property is the national highway lying in east-west direction. In between the plaint schedule property and the national highway is a “puramboke”. According to the plaintiff, he has prescriptive right of way through the “puramboke”, for access to the southern highway, and the same is being attempted to be interfered with by the defendants. It is accordingly that the suit has been filed. **R. S. A. No.62 of 2006** -: 2 :- 3. The defendant's denied the claim of the plaintiff. It is contended that, a larger extent of 20 cents including the plaint schedule property was purchased by the plaintiff and that there was an access from the southern highway through a way on the western side beyond the Government land. The plaintiff had access through that way. The Government land situated in between the plaint schedule property and the highway is not a narrow strip of land and the plaintiff does not have any manner of right over the same, it is contended. 4. The trial court held that the plaint schedule property being situated adjacent to a highway has a right of access to the same. On appeal by the defendant, the first appellate court found that, the property of the defendant contains a village office building and a cattle pound and that the natural right available for the owner of the land adjoining the highway is not available for the plaintiff. Accordingly the suit was **R. S. A. No.62 of 2006** -: 3 :- dismissed. It is aggrieved thereby that the regular second appeal has been filed. 5. Heard learned Senior Counsel Smt.Sumathi Dandapani on behalf of the appellant-plaintiff, and Smt.Rekha C. Nair, the learned Senior Government Pleader on the following substantial question of law:- _**“Was the appellate court correct in negativing the right of access to highway by an adjoining owner, on the reasoning that there is a**_ ## _**“puramboke” property in between the highway and the property?”**_ The right of the owner of a property adjoining a highway, to have access at all points where his land touches the highway, is well settled. (See _**Tanoor Panchayat v. Kunhiamutty (1978 KLT 813)**_ ; _**M.V.Joseph v. District Magistrate 1996**_ _**(2) KLT 490**_ ; _**Ummaya Hamza v. Calicut Corporation 2020 (6) KLT 674; Sebastian Joseph v. Chirakkadavu Grama Panchayat 2021 (6) KLT 10)**_ . However the said right is available when the property adjoins the highway. If any other property intervenes in between, the owner may not be entitled to claim such **R. S. A. No.62 of 2006** -: 4 :- right. Of course, the area covered by road margins also could be construed as a part of the highway. In the case at hand, admittedly there is a property having a width of approximately 90 links (60 feet approximately) situated in between the plaint schedule property and the highway. The said property, which is a “Puramboke”, contains a village office building and a cattle pound. By no stretch of imagination could it be held to be a road margin. The plaintiff cannot contend that his property touches the highway or the road margin, entitling him for unobstructed access thereto. Merely because the intervening property is that of the Government, it does not mean that the plaintiff is entitled for access through the same. The first appellate court was right in having held that the plaintiff is not entitled to the right of, “right of access to highway by an adjoining owner”. Substantial question of law is answered accordingly. **R. S. A. No.62 of 2006** -: 5 :- 6. It is seen that the right claimed by the plaintiff, as pleaded in the plaint, is one of easement by prescription. The issue raised in the suit is also regarding the entitlement of the plaintiff for an easement by prescription. The right of an adjoining owner of the highway, was not pleaded nor was any issue raised. There was no occasion for the defendants to contest the same. Therefore, such a right which was not pleaded or on which the parties were not at issue could not have been upheld by the trial court. 7. The trial Court granted a vague and blanket injunction, “restraining the defendants from blocking the way from the plaint schedule land and the shops therein through the puramboke land in R.S.No.77/13…”. The pathway over which the right is claimed is not scheduled to the plaint. The width is not specified. There is no commissioner's plan identifying the width. The trial Court decree was rightly set aside by the **R. S. A. No.62 of 2006** -: 6 :- first appellate court. Suffice to notice that, the suit is bound to fail for reasons more than one, as above. Resultantly, the Regular Second Appeal fails and is accordingly dismissed. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge