Thankavelu Kounder v. Nataraja Kounder

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE P. BHAVADASAN** **MONDAY, THE 10TH JANUARY 2011 / 20TH POUSHA 1932** **SA.No. 521 of 1999(D)** **---------------------** **AS.208/1991 of I ADDL. DISTRICT COURT, PALAKKAD OS.133/1986 of MUNSIFF COURT, CHITTUR ....................** ## **PLAINTIFFS/RESPONDENTS/APPELLANT:** **----------------------------------------------------------** **1. THANKAVELU KOUNDER, S/O.NANJAPPA KOUNDER, SARKARPATHY KALAM, MOLATHARA VILLAGE, CHITTUR TALUK.** **2. BHAGAVATHEESWARAN, S/O.THANKAVELU KOUNDER, SARKARPATHY KALAM, MOLLATHARA VILLAGE, CHITTUR TALUK.** **3. AMBIKAVATHY, S/O.THANKAVELU KOUNDER, SARKARPATHY KALAM, MOOLATHARA VILLAGE, CHITTUR TALUK.** **BY ADVS. SRI.V.V.ASOKAN** **SRI.K.I.MAYANKUTTY MATHER** ## **VS** ## **DEFENDANT/APPELLANT/RESPONDENT** **-----------------------------------------------------------** **NATARAJA KOUNDER, S/O.NANJAPPA KOUNDER, SARKARPATHY KALAM, MOLATHARA VILLAGE, CHITTUR TALUK.** **BY ADVS. SRI.SAIGI JACOB PALATTY SRI.SABU GEORGE SRI.JOHN JOSEPH VETTIKAD** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/01/2011, ALONG WITH SA NO. 522 OF 1999 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SA.No. 521 of 1999(D) ------------------------------** ## **ORDER ON CMP.1383/1999 IN SA 521/1999** ## **DISMISSED** **10.1.2011** **Sd/- P. BHAVADASAN, JUDGE** ## **/ TRUE COPY /** **P.A. TO JUDGE** ## **VK** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. Nos. 521 & 522 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of January, 2011. ## **JUDGMENT** The dispute in these cases relates to a covenant regarding a pathway in Ext.A1 document which is a deed of partition entered into between the parties to the suit. The trial court seems to have accepted the plea of the plaintiff and decreed the suit in his favour. On appeal by the defendants, the lower appellate court on a consideration of the relevant clause in Ext.A1 was of the opinion that the trial court had grossly erred in appreciating the relevant clause and refused to accept the finding of the trial court. The result was that the finding of the trial court was reversed. That resulted in dismissal of O.S.133 of 1986 filed by the appellant herein and decreeing of O.S. 51 of 1986 filed by the respondent before this court. S.A.521 & 522/1999. 2 2. Since the bone of contention is regarding a clause in Ext.A1, it is felt that it is only appropriate that the same is extracted. It reads as follows: “പഞ�യത�റ��ഡ�ല ന�ന�� ത�ടഞ��� പട�കയ�ല ബ�, സ� പപട ക�ട�ലക�ട� പട�ഞ�� �� വടക �മ�യ�റപ�യ� പ ���റപ�ക�ച�ല�ല ഇ�ഞ�"�നത�� ഇറ#�ള ഉളത�മ�യ വഴ�യ�ലക�ട� ബ�സ� , പട�കക�രക�� കന�ക�ല�കപ) കയ��യ�ട�പ�ട�ച � പക�ണ �റപ�ക�വ�ന�� വര �വ�ന�� അവക�ശമ�ണപടന�� അഞ��പന ട� വഴ�യ�ല ക�ട� കന�ക�ല�കള ഗത�ഗത� പചയ�നത�പന ഇര �ക�തടര�� തടസപ#ട �ത�വ�ന പ�ട�പലലന �� ന�ശചയ�ച�ര�ക��ന�.” 3. The main and the only plea taken before this court is that it was an easement by grant as per Ext.A6 document and the scope and ambit of the use of the way is controlled by the grant. Elaborating on the issue, the learned counsel for the appellant contended that the said clause only permits taking of cattle and therefore it can be used only for that purpose and for no other purpose. Accordingly, it is contended that the trial court was perfectly S.A.521 & 522/1999. 3 justified in its conclusion and there were no grounds for the lower appellate court to interfere with the judgment and decree of the trial court. 4. Counsel for the respondent on the other hand pointed out that the relevant covenant in Ext.A1 could not be treated as one resulting in easement by grant. The way made mention of in the said document was already in existence and the covenant only restricts the manner in which the cattle is to be taken through that way. This vital aspect has been lost sight of by the trial court and that caused an erroneous decree being passed. Learned counsel also pointed out that the act of issuance of another commission when there was already a commission report on file is also unacceptable in law. For the said proposition, learned counsel relied on the decision reported in **Swami Premananda Bharathi v. Swami YoganandaBharathi** (1985 K.L.T. 144). Finally, learned counsel contended that the finding by the appellate court being based on evidence on record and being a question of fact, interference in S.A.521 & 522/1999. 4 second appeal is uncalled for. Learned counsel also relied on the the decision reported in **Narayanan Rajendran v. Lekshmy Sarojini** ((2009) 5 SCC 264). 5. As rightly pointed out by the learned counsel for the respondent, it does not appear that the way was created for the first time in Ext.A1 document. That would be clear from a reading of the above recital. In fact the way was already in existence and was used by all the parties. If that be so, it is difficult to construe the clause extracted as one creating an easement by grant for the first time as contended by the learned counsel for the appellant. It is more in the nature of quasi-easement. I am not forgetting the fact that the quasi-easement must be apparent and continuous. Right of way is always treated as a discontinuous one. But I draw strength from the decision reported in **Kochan Ramanathan v. Kochan Natarajan** (1990(2) K.L.J. 617), where an identical issue was considered S.A.521 & 522/1999. 5 and it was held that in certain circumstances, it may be possible that the pathway may qualify to fall within the ambit of quasi-easement. 6. A reading of the covenant will clearly show that the restriction is only as regards the manner in which the cattle is taken through the property. No doubt, learned counsel for the appellant is fully justified in his submission that going by Section 28 of the Easements Act, the purpose and the intention of the use of the way, if accorded by grant, is subject to the terms of the grant. There can be no dispute about that principle at all. 7. It is not necessary in the present case to go into the question whether the trial court was justified in issuing another commission. There was already a commission report on file. Learned counsel appearing for the appellant pointed out that the second commission was altogether for a different purpose and it was essential to establish that the defendants in O.S. 133 of 1986 had alternate way to take the vehicles to the Panchayat road. S.A.521 & 522/1999. 6 Viewed from that angle, there is nothing wrong in obtaining a second report even though the first report was not set aside. 8. In the nature of the view I have already taken, there is no relevance for considering the issue as to whether the defendants in O.S. 133 of 1986 have an alternate way for their use. At the risk of repetition, one may notice that going by the terms of the recital in Ext.A1 it is very clear that the covenant relates to a way already in existence and the restriction is with reference to the taking of cattle alone. If a way was already in existence, it is only proper to presume that it was being put into use for all purposes which that way could accommodate. There is nothing to show that the way could not accommodate vehicular traffic at the time when Ext.A1 was entered into. The plea of the appellant that the covenant in Ext.A1 restricts the use of way and confines the use for taking of cattles cannot be accepted. 7 S.A.521 & 522/1999. 9. The lower appellate court was perfectly justified in taking the view that the trial court had misconstrued itself both on facts and in law in holding that the use of the way in question could not be restricted to taking cattles alone. The lower appellate court seems to be correct in its approach and finding, that such a narrow interpretation could not be given to the covenant relied on by the parties as it did not reflect restrictive use by the parties. 10. The lower appellate court has considered the evidence in considerable detail and has come to the conclusion that the width of the pathway is 8 to 12 feet. Both the commission reports show that the pathway in question varies in width at different places. The question of considering alternate means of vehicular access for the defendants in O.S. 133 of 1986 does not arise for consideration in the context of the issues involved in this case. S.A.521 & 522/1999. 8 11. Further, the findings of the lower appellate court are essentially based on appreciation of the evidence in the case and the conclusion arrived at is essentially one of fact. Unless the findings are so perverse or are totally unwarranted by the evidence on record, an interference in Second Appeal is uncalled for. Viewed from that angle, no question of law, much less any substantial question of law arises for consideration in these second appeals. These Second Appeals are without merits. They are accordingly dismissed. There will be no order as to costs. **P. BHAVADASAN, JUDGE** sb.