High Court of KeralaSingle Judge2019-06-18Appeal partly allowed; remanded to the first ap...

THAVARAKKATTIL CHOYIKUTTY MASTER v KIZHAKKE NEDIYARAMBATH RAFEEK

Case / Petition Number:RSA No.848 of 2005 & RSA No.850 of 2005

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Somarajan
Judgment Date: 2019-06-18
Court Decision / Holding: Appeal allowed in part; the decrees of the trial court and the first appellate court are set aside and the matter is remanded to the first appellate court for reconsideration of the ‘user as of right’ issue under Cherootty v. Velayudhan Nair. The court directs appearance on 10.7.2019 and a three-month deadline for disposal, with no order as to costs for the second appeal.
Final Disposition: Appeal partly allowed; remanded to the first appellate court with directions for determination of ‘user as of right’ under Cherootty doctrine; no costs on second appeal.

Parties to the Case

Appellants / Petitioners

THAVARAKKATTIL CHOYIKUTTY MASTER
JANU
SREEDHARAN

Respondents

KIZHAKKE NEDIYARAMBATH RAFEEK
KIZHAKKE NEDIYARAMBATH IYYATHU
K.N.RAFEEK
K.N.NISSAR

Legal Representation & Advocates

Counsels for Petitioners

• S.V. Balakrishna Iyer (Sr.)
• Dr. V.N. Sankarjee
• Smt. R. Udaya Jyothi
• Sri K.G. Arun Kumar

Counsels for Respondents

• Smt. Seema Sreekumar
• R. K. Muraleedharan
• Sri R. Parthasarathy

Case Synopsis & Summary

This Regular Second Appeal concerns RSA Nos. 848 of 2005 and 850 of 2005 before the Kerala High Court, arising from decrees in Os. Nos. 163/1989 and 216/1989 (Munsiff Court, Quilandy) and A.S. Nos. 14/1997 and 20/1997 (Additional District Court, Vadakara). The appellants—Thavarakkattill Choyikutty Master, Jan u, and Sreedharan—challenge concurrent decrees granting a prescriptive right of easement over the B schedule way and a perpetual injunction, while the respondents seek to oppose or restrain trespass via a permanent injunction. The B schedule describes a ridge functioning as access and possibly for irrigation between paddy fields, with two commissioner reports recognizing a two-feet-wide ridge, described as a new ridge by the plaintiff who claims to have restored it. The trial and first appellate courts held in favour of prescriptive easement and injunctive relief, but the High Court found that Cherootty v. Velayudhan Nair (and subsequent decisions) establishing the doctrine on “user as of right” for ridges adjacent to paddy fields had not been considered. The judgment remands the matter to the first appellate court to determine whether the user qualifies as a right under the Cherootty doctrine, given the ridge lies across territories with paddy and reclaimed land. The order allows the appeal in part, directs appearance on 10.7.2019, and provides for disposal within three months, with no costs on second appeal.

Legal Doctrines & Maxims

Prescriptive easement
User as of right
Cherootty v. Velayudhan Nair (1998 (1) KLJ 479)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contend that the B schedule ridge facilitates access and irrigation between fields and has acquired status as an easement by long user. They assert that the ridge may be a recent restoration but the user has continued consistently, constituting a right by prescription. They urge the court to apply the Cherootty doctrine on user as of right and to re-evaluate the lower courts’ findings, remanding for factual and legal determination of ‘as of right’ use in light of the ridge’s position between paddy land and reclaimed land.

Contentions of Respondents

The respondents challenge the claim of prescriptive easement, arguing that the ridge is not proven to have been used as a right over time and that any improvement or relocation of the ridge does not establish a perpetual right. They emphasize the need to dissociate the user from ownership and challenge the lower courts’ reliance on a newly raised ridge as evidence of long user, urging a fresh appraisal under the Cherootty framework.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Cherootty @ Balan v. Velayudhan Nair	1998 (1) KLJ 479	Positive	Cited as the controlling doctrine on ‘user as of right’ for ridges between paddy fields; the High Court directs applying this decision to determine whether the user constitutes prescriptive rights.
K. Sarojini v. Poondath Gopalakrishnan	RSA No.626/2008	Positive	Reiterates the Cherootty doctrine; cited as part of the legal position on user as of right.
Paulson v. Rajesh and another	SA No.425/2014	Positive	Reiterates the Cherootty position on user as of right; cited to support the High Court’s stance on the required doctrine.

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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 P.SOMARAJAN** **TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941** ## **RSA.No.848 of 2005** **AGAINST THE DECREE & JUDGMENT DATED 20-06-2005 IN AS 14/1997 OF ADDITIONAL DISTRICT COURT, VADAKARA** **AGAINST THE DECREE & JUDGMENT DATED 21-12-1996 IN OS 163/1989 OF MUNSIFF COURT, QUILANDY** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** **1 THAVARAKKATTIL CHOYIKUTTY MASTER, S/O. KELUKUTTY, AGED 73, THAVARAKKATTIL, MODAKKALLUR AMSOM, KURUVALUR DESOM, KOYILANDY TALUK,, KOZHIKODE DISTRICT.** **2 JANU, D/O. KELUKUTTY, AGED 70, THAVARAKKATTIL, MODAKKALLUR AMSOM, KURUVALUR DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.** **3 SREEDHARAN, S/O.KELUKUTTY, AGED 60, THAVARAKKATTIL, MODAKKALLUR AMSOM, KURUVALUR DESOM,, KOYILANDY TALUK, KOZHIKODE DISTRICT.** **BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.) DR.V.N.SANKARJEE SMT.R.UDAYA JYOTHI SRI.K.G.ARUN KUMAR** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **KIZHAKKE NEDIYARAMBATH RAFEEK, S/O. AMMOOTTY, AGED 39, KIZHAKKE NEDIYARAMBATH,, MODAKKALLUR AMSOM, ADUVAD DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT.** **BY ADVS. SMT.SEEMA SRI.R.K.MURALEEDHARAN SRI.R.PARTHASARATHY** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18.06.2019, ALONG WITH RSA.850/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA 848/2005 & RSA.850/2005 2** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941** **RSA.No.850 of 2005** **AGAINST THE DECREE & JUDGMENT DATED 20-06-2005 IN AS 20/1997 of ADDITIONAL DISTRICT COURT, VADAKARA** **AGAINST THE DECREE & JUDGMENT DATED 21-12-1996 IN OS 216/1989 of MUNSIFF COURT, QUILANDY** ## **APPELLANT/APPELLANT/PLAINTIFF:** **THAVARAKKATTIL CHOYIKUTTY MASTER, S/O.KELUKUTTY,AGED 73, THAVARAKKATTIL,MODAKKALLUR AMSOM, KURUVALUR DESOM,KOYILANDY TALUK, KOZHIKODE DISTRICT.** **BY ADVS. SRI.S.V.BALAKRISHNA IYER (SR.) DR.V.N.SANKARJEE** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** **1 KIZHAKKE NEDIYARAMBATH IYYATHU, W/O.AMMOOTTY,AGED 52, KIZHAKKE NEDIYARAMBATH,,MODAKKALLUR AMSOM,ADUVAD DESOM,, KOYILANDY TALUK,KOZHIKODE DISTRICT. 2 K.N.RAFEEK, S/O.AMMOOTTY, AGED 36, -DO- DO3 K.N.NISSAR, S/O.AMMOOTTY, AGED 30, -DO- DO-, (AT THE TIME OF SUIT HE WAS MINOR AND, NOW HE IS MAJOR). BY ADVS. SMT.SEEMA SRI.R.PARTHASARATHY** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18.06.2019, ALONG WITH RSA.848/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA 848/2005 & RSA.850/2005 3** ## **[ RSA 848/2005 ,RSA.850/2005 ]** ## **JUDGMENT** The defendants came up with these appeals against the decree and judgment of both the trial court and the first appellate court by which a decree for declaration of prescriptive right of easement over the B schedule property was granted besides the grant of a prohibitory injunction. 2. RSA No.848 of 2005 is against the concurrent finding of decree and judgment rendered in O.S.No.163 of 1989 and the first appeal there under. The other appeal in RSA No.850 of 2005 is against the decree and judgment in O.S.No.216 of 1989 and the first appeal there under. The leading case is suit in O.S.No.163 of 1989. It is filed for declaration of easement right and for perpetual injunction. It was granted by both the ## **RSA 848/2005 & RSA.850/2005 4** courts below. The other suit was filed by the defendants against the plaintiff for a grant of permanent prohibitory injunction against trespass. That suit was dismissed by both the courts below, against which the defendant in the leading case, i.e. O.S.No.163 of 1989 came up with these two appeals. 3. B schedule is the way in dispute. Two set of commissioners were deputed, who in turn filed the report and rough sketch. Ext.C1 is the first rough sketch prepared and Ext.C3 is the second rough sketch prepared. The commissioner reported B schedule as a ridge starting from southern public road leading towards north. There is an opening at the entrance of A schedule property i.e southern boundary of A schedule property. The southern boundary bounded by a compound wall with the said opening. The commissioner in Ext.C2 reports that the property of the defendant lying on a lower ## **RSA 848/2005 & RSA.850/2005 5** level along with A schedule property from that of the southern road. The ridge is also reported as having two feet width. It was also reported by the commissioner that the ridge found to be a new one which was admitted by the plaintiff. According to the plaintiff it was restored just few days before the visit of the commissioner as the earlier ridge in existence was demolished. 4. Apart from the substantial questions raised at the time of admission, the following questions would also came up for consideration: - (i) What would be the nature of the user of a ridge lying in between the paddy field intended to regulate field to field irrigation, as means of access and whether it is amounts to 'user as of right' ? - (ii) Is there any difference in the legal position when the ridge lies on the side of paddy when the other side reported as a reclaimed land ? **RSA 848/2005 & RSA.850/2005 6** (iii) What actually constitute an 'user as of right' so as to bring up a case of acquisition of prescriptive easement ? 5. Both the trial court and the first appellate court decreed the suit in terms of the plaint declaring the prescriptive right of easement over B schedule way and by granting permanent prohibitory injunction. But the legal position settled by this court in _**Cherootty @ Balan v. Velayudhan Nair (1998 (1) KLJ 479)**_ regarding the user of a ridge between the paddy field or ridge lying adjoining to the paddy field neither considered nor adjudicated by both the courts below. The question user 'as of right' should be addressed necessarily based on the decision rendered by this court in Cherootty's case. The legal position was subsequently reiterated in several decision of this court including the decision in RSA No.626/2008 dated 11.1.2010 drawn ## **RSA 848/2005 & RSA.850/2005 7** in _**K.Sarojini vs. Poondath Gopalakrishnan**_ and SA No.425/2014 dated 3.6.2014 drawn in _**Paulson vs Rajesh and another**_ . The omission to consider the above said legal position based on the factual issue involved in the case is fatal to the decision rendered by both the trial court and first appellate court. Ext.C3 rough sketch revealed the landed property lying on either side of the way partly as paddy field partly as 'kuni' which stands for partly reclaimed paddy field. The above said question requires consideration by the first appellate court for that purpose, the decree and judgment of trial court and the first appellate court are hereby set aside. Appeal is allowed in part accordingly. The matter is remanded back to the first appellate court. The parties shall appear before the first appellate court on 10.7.2019. The first appellate court shall dispose of the matter within a period of three months from the date of **RSA 848/2005 & RSA.850/2005 8** appearance. No order as to costs of second appeal. Appeal is allowed in part. No costs. Sd/- **P.SOMARAJAN, JUDGE** pm // TRUE COPY // PA TO JUDGE