Seline v. Mary Varghese and Varghese

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI FRIDAY, THE 9TH DAY OF NOVEMBER 2012/18TH KARTHIKA 1934 OP(C).No.2102 of 2011 (O) -------------------------(AGAINST THE ORDER IN I.A.NO.2075 OF 2011 IN O.S.NO.903 OF 2010 ON THE FILE OF THE PRINCIPAL MUNSIFF'S COURT, ERNAKULAM) ## PETITIONER(S)/PLAINTIFF: -------------------------------------- SELINE, W/O.LATE PAUL, AGED 65 YEARS, THOTTEKKATT, MOOLANKUZHI MURI, RAMESWARAM VILLAGE, KOCHI TALUK, MATTANCHERRY (P.O), PN 682 002. REP BY HER REGISTERED P/A HOLDER PASCAL BAYLON, S/O.JOSEPH, AGED 44 YEARS, NEDIYA PARAMBIL HOUSE, PADINJAREMURI, THOPPUMPADI VILLAGE, RAMESWARAM, THOPPUMPADY (P.O.) NOW RESIDING AT KOLLAMMAPARAMBIL HOUSE PONOTH ROAD, KALOOR (P.O.), PIN 682 017. BY ADVS.SRI.A.V.THOMAS, SMT.M.M.JASMIN, SRI.NIDHI SAM JOHNS. ## RESPONDENT(S)/DEFENDANTS: ---------------------------------------------- 1. MARY VARGHESE,W/O VARGHESE, AGED 60 YEARS, ASSARIMATTEL, PONJIKKARA DESOM, MULAVUKADU VILLAGE, KOCHI TALUK, ERNAKULAM DISTRICT, NOW RESIDING AT ASSARIMATTEL, SHOBA ROAD, BEHIND VENNALA POST OFFICE, VENNALA PO, PIN 682 028, ERNAKULAM DISTRICT. 2. VARGHESE, S/O.GEORGE, AGED 71 YEARS, ASSARIMATTEL, PONJIKKARA DESOM,MULAVUKADU VILLAGE KOCHI TALUK, ERNAKULAM DISTRICT, NOW RESIDING AT ASSARIMATTEL, SHOBA ROAD, BEHIND VENNALA POST OFFICE, VENNALA PO, PIN 682 028, ERNAKULAM DISTRICT. R1 & 2 BY ADV. SRI.JOSEPH GEORGE. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 09-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ........2/- ## _**OP(C) 2102/11**_ ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **P1:- TRUE COPY OF THE SALE DEED NO.3596/1999 OF ERNAKULAM SUB REGISTRY.** - **P2:- TRUE COPY OF THE PLAINT IN O.S.903/2010 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT, ERNAKULAM.** - **P3:- TRUE COPY OF THE COMMISSION REPORT IN O.S.NO.903/2010 ON THE FILES OF PRINCIPAL MUNSIFF COURT, ERNAKULAM.** - **P4:- TRUE COPY OF THE WRITTEN STATEMENT IN O.S.NO.903/2010 ON THE FILES OF PRINCIPAL MUNSIFF COURT, ERNAKULAM.** - **P5:- TRUE COPY OF REVIEW PETITION I.A.NO.2075/2011 IN O.S.NO.903/2010 ON THE FILES OF PRINCIPAL MUNSIFF COURT, ERNAKULAM.** - **P6:- TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS IN I.A.NO.2075/2011 IN O.S.NO.903/2010 ON THE FILES OF PRINCIPAL MUNSIFF COURT, ERNAKULAM.** - **P7:- TRUE COPY OF ORDER IN I.A.NO.2075/2011 IN O.S.903/2010 DATED 15/06/2011 ON THE FILES OF PRINCIPAL MUNSIFF COURT, ERNAKULAM.** ## **RESPONDENTS' EXHIBITS:- NIL** **//TRUE COPY// P.A. TO JUDGE** 'C.R' **==> picture [306 x 86] intentionally omitted <==** **==> picture [126 x 14] intentionally omitted <==** The plaintiff in O.S.No.903 of 2010 on the file of the Principal Munsiff Court, Ernakulam is before this Court challenging Ext.P7 order passed on I.A.No.2075 of 2011 in the said suit. The petitioner carries the suit for a declaration that she has an indefeasible right of way over plaint 'B' schedule pathway by easement of necessity and also for consequential injunction. 2. The case of the petitioner is that she is in possession and enjoyment of plaint 'A' schedule property having an extent of 4.11 ares comprised in re-survey No.125/20 in block No.III (old survey No.225/1) in Mulavukadu village on the strength of Ext.P1 sale deed executed by the first respondent. The second respondent, who is the husband of the first respondent, was having 20.164 cents of property in the same survey number by virtue of a settlement deed of 1979. In the year 1982, the second respondent settled 4.11 ares out of the aforesaid 20.164 cents in favour of the first respondent, who in turn, conveyed the same to the petitioner as per Ext.P1. OP(C).2102/11 ## _**-:2:-**_ 3. The petitioner further alleges that at the time of execution of Ext.P1 sale deed in her name with respect to plaint 'A' schedule property, a pathway was provided by the respondents through the remaining property of the second respondent starting from plaint 'A' schedule property and leading to the Panchayat road for ingress and egress, which is the only means of access to plaint 'A' schedule property. The northern boundary of the aforesaid 4.11 ares was, therefore, shown as 'vazhi' (pathway) in Ext.P1 sale deed. The said pathway is described as 'B' schedule property in the plaint. 4. The suit was instituted in the wake of apprehension of obstruction of the said pathway by the respondents. The respondents, who resisted the suit, contended that Ext.P1 sale deed was obtained by fraud and there is no pathway described as plaint 'B' schedule property. 5. On the basis of the rival contentions, the court below framed issues; issue No.I being: “Whether the plaintiff is having valid title over plaint 'A' schedule property?” Thereupon, the court below passed an order directing the petitioner to amend the valuation of the plaint and to pay OP(C).2102/11 ## _**-:3:-**_ the court fee as per Section 27(a) of the Kerala Court Fees and Suit Valuation Act, 1959, for short, 'the Act'. Petitioner filed Ext.P5 I.A to review that order. After hearing the objections of the respondents, the same was dismissed by Ext.P7 order, which is impugned. 6. Arguments have been heard and the impugned order was perused. 7. The prayers in the suit are as under:- - “(a) to pass a decree of declaration that plaintiff has an indefeasible right of way through plaint 'B' schedule pathway by easement of necessity; - (b) to pass a decree of permanent prohibitory injunction restraining the defendants, their men or agents or anybody claiming under them from putting up any construction or fencing in the plaint 'B' schedule pathway for ingress and egress to plaint 'A' schedule property;” There is no prayer in the suit for declaration of title and possession over plaint 'A' schedule property. The learned Munsiff was carried away by Section 27(a) of the Act which reads as follows: - “(a) Where the relief sought is with reference to any immovable property, and - (i) where the plaintiff alleges that his title to the property is denied, or - (ii) where an issue is framed regarding the plaintiff's title to the property, _**-:4:-**_ OP(C).2102/11 fee shall be computed on one-half of the market value of the property or on [rupees five hundred], which ever is higher;” 8. The word “property” used in the section denotes the property which is the subject matter of the lis. The petitioner has sought a relief not in respect of plaint 'A' schedule property. The suit is essentially one for declaration of easement of necessity over the plaint 'B' schedule pathway and also for consequential injunction. This fact was overlooked by the court below. Section 4 of the Indian Easements Act, 1882, which defines easement, makes it clear that an owner or occupier of a property as the dominant owner can claim easement. A person claiming easement of necessity which arises on severance of tenements is entitled to succeed if he can establish that for effective user of a property of which he is the owner or the occupier, the right of easement over a particular passage over the property of the defendants is essentially necessary. What is relevant for consideration is whether or not the property in question be effectively used ordinarily without taking recourse to right of easement over the property of the defendants. OP(C).2102/11 ## _**-:5:-**_ 9. Section 27(a) of the Act comes into play only when the plaintiff seeks an injunction with respect to the property against the defendants on the basis of title to such property and where, the title of the plaintiff is denied by the defendants or where a specific issue is framed by the court regarding title on account of such denial. In such cases, the issue regarding title has to be answered to decide the lis between the parties. It is on the same footing, Section 25(b) of the Act which deals with valuation of suits for declaration of title with consequential prayer for injunction is moulded. Under Section 25(b), the court fee for such suits are to be computed on one half of the market value of the property or on rupees one thousand, which ever is higher. 10. It is true that the line of contention taken by the respondents in the written statement is that Ext.P1 sale deed, on the basis of which the petitioner claims title and possession over plaint 'A' schedule property, was obtained by fraud. However, considering the nature of the reliefs sought for by the petitioner in the suit, the scope of enquiry into the said question is little. Order XIV Rule 1 of the Code of Civil Procedure says arise when a material proposition of fact or law is affirmed by one party and OP(C).2102/11 ## _**-:6:-**_ denied by the other. The said rule further clarifies that material propositions are those which a plaintiff must allege in order to show a right to sue, or a defendant must allege in order to constitute his defence. The aforesaid bench marks are to be satisfied for casting an issue and for answering the same. Here, the suit being one for declaration of easement and for consequential injunction, the petitioner who is the plaintiff need not allege that she is having title to plaint 'A' schedule property to show her right to sue. It is enough if she avers and proves that she is the occupier of plaint 'A' schedule property. The issue regarding title to plaint 'A' schedule property is quite unnecessary so far as the present suit is concerned. 11. Mr.A.V.Thomas, the learned senior counsel appearing for the petitioner incidentally took me to a series of decisions rendered by the Apex Court, including Neelavathi and others v. N.Natarajan and others [AIR 1980 Supreme Court 691], Saleem Bhai and ors. v. State of Maharashtra and ors. [AIR 2003 Supreme Court 759] etc., which make it clear that for the purpose of determination of the court fee payable, the averments in the plaint are germane. OP(C).2102/11 _**-:7:-**_ 12. In the light of what is stated above, I hod that the learned Munsiff was not at all justified in dismissing Ext.P5 petition (I.A.No.2075 of 2011). Hence, Ext.P7 order calls for an interference. In the result, I allow the original petition. Ext.P7 order is set aside. I.A.No.2075 of 2011 in O.S.No.903 of 2010 on the file of the Principal Munsiff Court, Ernakulam, shall stand allowed. Parties are directed to mark appearance before the court below on the next posting date. sd/A.V.RAMAKRISHNA PILLAI JUDGE krj