R. Ruby v. Jesamma John

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sathish Ninan
Judgment Date: 2022-07-25
Court Decision / Holding: Regular Second Appeal is allowed in part. The decree of the lower courts granting a mandatory injunction to close the gate is set aside. The decree for prohibitory injunction, insofar as it concerns plaint item No.3, is confirmed. The plaintiff is granted a decree restraining the defendant or anyone under her from causing nuisance (parking, crowding) at the gate onto the violet shaded continuation of the way. Costs borne by the parties.
Final Disposition: Regular Second Appeal allowed in part.

Parties to the Case

Appellants / Petitioners

R. Ruby

Respondents

Jesamma John

Legal Representation & Advocates

Counsels for Petitioners

• Sri.C.S.Manu
• Sri.S.K.Premraj

Counsels for Respondents

• Sri.J.Om Prakash

Case Synopsis & Summary

This Regular Second Appeal concerns a title dispute over three schedule items in Cherthala. The plaintiff, Jesamma John, claims title to plaint item 3 (a way) and seeks to restrain the defendant, Ruby, from accessing the way and to compel closure of a gate on the western boundary. The trial court found that the defendant had neither a right to use plaint item 3 nor to install a gate into the continuation of that way, and dismissed the claim for damages; the defendant's appeal and the plaintiff's cross-claims were therefore dismissed. On admission and after hearing, the High Court, in a Regular Second Appeal, examined whether the defendant could assert any right of way by prescription over the red shaded path (plaint item 3) and whether the plaintiff could be compelled to have the gate closed. It held that the plaintiff's title over plaint item 3 is established by Annexure A1, and without proving an exclusive right, the plaintiff cannot be deprived of exclusive control of the way. The court refused to grant a mandatory injunction to close the gate, but allowed the prohibitory injunction to restrain nuisance and to ensure no parking or crowding near the gate. The appeal is allowed in part, distinguishing the cited authority and recognizing the plaintiff’s title while preserving the defendant’s limited access rights where no exclusive easement is proven.

Legal Doctrines & Maxims

Easement by prescription
Nuisance
Title by sale deed/Annexure A1

Submissions & Arguments

Contentions of Appellants / Petitioners

The defendant contends that being the owner of property adjoining a pathway she is entitled to access through the same without proving any express or exclusive right. She asserts a prescriptive or implied right of way over plaint item No.3, and argues that the defendant cannot be compelled to close the gate, particularly where no exclusive right has been established by the plaintiff. Relying on precedents such as John Varghese (Pazhampallil) v. Sweena Anna Thomas, she claims that proximity to a pathway suffices for reasonable access.

Contentions of Respondents

The plaintiff contends that she has established title over plaint item No.3 by Annexure A1 sale deed and that rights of way cannot be inferred in the absence of an exclusive grant or established easement in favor of the defendant. She seeks a prohibitory injunction to restrain the defendant from using plaint item No.3 and to prevent closing the gate that opens into the violet-shaded continuation, and also a decree to prevent nuisance (parking, crowding) at the gate. The plaintiff maintains that the defendant cannot be compelled to close the gate without a proven right to access the way.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
John Varghese (Pazhampallil) v. Sweena Anna Thomas	AIR 2014 Ker. 1	Distinguished	The court distinguishes this authority; it held that mere adjacency to a pathway and reliance on a similar principle do not apply here where the plaintiff has established title to plaint item No.3, so an exclusive right must be proven and the cited case does not control the outcome.

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. 1098 OF 2014** **AGAINST THE JUDGMENT AND DECREE IN AS 39/2012 OF SUB COURT, CHERTHALA** **AGAINST THE JUDGMENT IN OS 465/2009 OF PRINCIPAL MUNSIFF COURT, CHERTHALA** ## **APPELLANT/APPELLANT/DEFENDANT:** R.RUBY,S/O RAJAPPAN, RESIDING AT NIKARTHIL, PUTHIYAKAVU P.O, PATTANAKKAD, CHERTHALA, ALAPPUZHA 688531 BY ADVS. SRI.C.S.MANU SRI.S.K.PREMRAJ ## **RESPONDENT/RESPONDENT/PLAINTIFF:** JESAMMA JOHN,W/O BENNY VARGHESE,AGED 46 YEARS, RESIDING AT ROSE VILLA, P.O CHERTHALA, ALAPPUZHA 688524 BY ADV SRI.J.OM PRAKASH 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.1098 of 2014 ========================== Dated this the 25[th] day of July, 2022** ## **JUDGMENT** The concurrent decree in a suit for prohibitory and mandatory injunctions is under challenge by the defendant in the suit. 2. The plaint schedule consists of three items of properties. The plaintiff claims title over the same as per Annexure A1 Sale Deed of the year 2006. Plaint item No.3 is a way which leads to the north-eastern corner of plaint item numbers 1 and 2 from the northern public road. From the north-eastern corner of plaint items 1 and 2, and apparently in continuation of plaint item No.3 is a way which runs through the eastern side of plaint items 1 and 2 towards south. The property of the defendant is situated on the eastern side of plaint item No.3 way and the above mentioned way. The defendant installed a gate on the western boundary of his property, opening into the starting portion of the way R.S.A No.1098 of 2014 -: 2 :- that lies in continuation of plaint item No.3. Disputes arose between the parties with regard to the right of the defendant to use the plaint item No.3 way. The plaintiff claims that the defendant does not have the right to use plaint item No.3 way and also to install the gate. The plaintiff seeks for a prohibitory injunction against the defendant from entering upon plaint item No.3, and for a mandatory injunction for closing down the gate. There was also a further prayer for damages, which was declined by the trial court, against which there was no Appeal and hence the claim does not survive any more. 3. The defendant contended that she has a prescriptive right of way over plaint item No.3. She further asserted the right to install the gate on the western boundary of her property into the way that runs in continuation of plaint item No.3. 4. The trial court found that the defendant has not established a right to use plaint item No.3, and also R.S.A No.1098 of 2014 -: 3 :- that the defendant does not have right to provide a new gate into the way that runs in continuation of plaint item No.3. The defendant was unsuccessful in her Appeal filed before the Subordinate Judge's Court. It is accordingly that this Regular Second Appeal has been filed. 5. Heard Sri.C.S Manu, learned counsel for the appellant-defendant and Sri.J.Omprakash, learned counsel for the respondent-plaintiff on the following substantial question of law: _(i) The property of the defendant being situated adjoining a way, is she entitled for access through the same without establishing any right?_ _(ii) Without establishing an exclusive right over the pathway which runs in continuation of plaint item No.3, could the plaintiff be granted a decree for mandatory injunction against the defendant to close down the gate which opens into the said way?_ 6. In the trial court, the plaintiff took out a Advocate Commissioner, who with the assistance of a R.S.A No.1098 of 2014 -: 4 :- Surveyor identified and located plaint item Nos. 1 to 3. Plaint item no.3 way is shown in orange shade in Ext.C(1)(a) plan. It is established that plaint item No.3 is included in Annexure A1 Sale Deed in favour of the plaintiff. Thus, the plaintiff has established her title over the same. The claim of the defendant over plaint item No.3 way, as pleaded in the written statement, is one of 'easement by prescription'. However, it has been recorded in the trial court judgment that the said claim was not pursued by the defendant. It being so, the said claim does not arise for consideration. 7. Relying on the judgment of this Court in _**John Varghese (Pazhampallil) v. Sweena Anna Thomas (AIR 2014 Ker. 1)**_ the learned counsel for the appellant would contend that, since the defendant's property is adjoining a pathway, plaintiff is entitled to make use of that pathway for enjoyment of her property. The said contention is without any substance. The plaintiff having established R.S.A No.1098 of 2014 -: 5 :- her title over plaint item No.3, unless the defendant establishes any manner of right of way through item No.3, she is not entitled to use the same. The judgment relied on by the learned counsel for the appellant relates to a case where the title over the way portion has not been established. Having found that title over plaint item no.3 vests with the plaintiff, without establishing a right the defendant is not entitled to use the same. Substantial question of law no.2 is answered accordingly. 8. In continuation of plaint item No.3, and leading towards the south, is a way. The said way is shown as violet shade in Ext.C(1)(a) plan. For the sake of convenience, plaint item 3 is herein after referred to as the red shaded way and the continuing portion of the way as, the violet shaded way. The defendant has installed a gate on the western side of her property immediately to the south of the orange shaded way and opening into the violet shaded way. The plaintiff does R.S.A No.1098 of 2014 -: 6 :- not have a claim of title or exclusive right over the violet shaded way. The gate installed by the defendant opens into the said violet shaded way. The plaintiff does not have any right to prevent the defendant from accessing into the violet shaded way from her property. She does not have any right to require the defendant to close down the said gate since the plaintiff does not have exclusive claim over the violet shaded way. As the plaintiff have not established any exclusive claim, the defendant cannot be compelled by a decree for mandatory injunction to close the gate. The mandatory part of the decree granted by the courts below is thus liable to be interfered with. Substantial question of law no.2 is answered accordingly. 9. In paragraph 7 of the plaint as well as in the evidence of PW1, the plaintiff has contended that nuisance is being caused to her by the parking of vehicles, crowding of people etc. in front of the gate installed by the defendant which is situated just at the R.S.A No.1098 of 2014 -: 7 :- entrance/exit of her property. Questions have been put to the defendant in the said regard in crossexamination, while she was examined as DW1. In the valuation portion of the plaint, under count “C”, the plaintiff has sought for mandatory injunction for closure of the gate, alleging nuisance. As held above, though the plaintiff does not have a right to seek for closure of the gate into the violet shaded way, definitely the plaintiff is entitled to see that no nuisance is caused to her on account of the alleged acts by the defendant or by anybody under her. The learned counsel for the appellant – defendant submits that the defendant has no intention to cause any nuisance or obstruction to the plaintiff and that the same will not be done. The plaintiff could be granted a decree for prohibitory injunction restraining the defendant from causing any manner of nuisance by parking of vehicles, by crowding at or near the gate, or otherwise. R.S.A No.1098 of 2014 -: 8 :- In the result, the Regular Second Appeal is allowed in part. The decree of the courts below to the extent it granted a decree for mandatory injunction is set aside. The decree for prohibitory injunction, insofar as it relates to plaint item No.3 is confirmed. The plaintiff is further granted a decree restraining the defendant or anybody under her from causing nuisance to the plaintiff by the parking of vehicles or crowding of people or otherwise, at the gate installed on the western boundary wall of defendant's property and opening into the violet shaded portion as shown in Ext C1(a) plan. Parties to bear the respective costs. Sd/- **Sathish Ninan, Judge** vdv