Thomas C. Chunkapura v. Roy Joseph and Georgekutty

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 27TH DAY OF JANUARY 2016/7TH MAGHA, 1937** ## **RSA.No. 1111 of 2009 (G)** ## **------------------------------** **OS 50/2006 OF MUNSIFF - MAGISTRATE COURT, ERATTUPETTA AS.54/2007 OF SUB COURT, PALA** **---------------------------** ## **APPELLANT/APPELLANT/PLAINTIFF::** **--------------------------------------------------------** **THOMAS.C.CHUNKAPURA, S/O.CHACKO, AGED 49 YEARS, RESIDING AT CHUNKAPURA HOUSE, 6TH MILE, THALAPPALAM KARA, ERATTUPETTA VILLAGE.** **BY ADV. SRI.K.GOPALAKRISHNA KURUP (SENIOR) SMT.K.DEEPA** ## **RESPONDENT(S)/RESPONDENTS/DEFENDANTS::** **---------------------------------------------------------------------** **1. ROY JOSEPH, AGED 43 YEARS, MOOKKENTHOTTATHIL VEETTIL, 6TH MILE, THALAPPALAM KARA, ERATTUPETTA VILLAGE.** ## **2. GEORGEKUTTY, S/O.KURIAKOSE,** **AGED 48 YEARS, MANJANICKAL VEEDU, 6TH MILE, THALAPPALAM KARA, ERATTUPETTA VILLAGE.** **BY ADVS. SRI.SHAJI THOMAS SRI.T.V.VINU** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/1/2016 THE COURT ON 27-01-2016, DELIVERED THE FOLLOWING:** **PJ** ## **P.B.SURESH KUMAR, J.** ## **= = = = = = = = = = = =** ## **R.S.A.No.1111 of 2009.** **= = = = = = = = = = = =** Dated this the 27[th] day of January, 2016. **J U D G M E N T** The plaintiff in a suit for injunction is the appellant in this second appeal. 2. The plaint schedule item No.1 property is a property obtained by the plaintiff as per Ext.A1 sale deed. The extent of the plaint schedule item No.1 property is 1 acre and 5 cents. Out of the said 1 acre and 5 cents of property covered by Ext.A1, the plaintiff sold a portion measuring 22 cents to the first defendant as per Ext.B1 sale deed and another portion measuring 10 cents to the second defendant as per Ext.B4 sale deed. Since the properties covered by Exts.B1 and B4 situate on the north western corner of the plaint schedule item No.1 property, while conveying the said properties to defendants 1 and 2, the plaintiff has carved out a way having a width of 11 feet for **RSA.No.1111/2009.** 2 defendants 1 and 2 for their access to the said properties from Pala-Erattupeta public road which lies on the south of the plaint schedule item No.1 property. The plaint schedule item No.2 property is a portion of the said pathway. The case of the plaintiff is that after the formation of the pathway through the plaint schedule item No.1 property, he entered into Ext.A4 agreement with the owner of the property which situates on the west of the plaint schedule item No.1 property for forming a pathway having a width of 11 feet to the plots sold to defendants 1 and 2 and thereafter, by mutual consent, defendants 1 and 2 were using the said pathway for access to their properties covered by Exts.B1 and B4 sale deeds. The specific case of the plaintiff is that the pathway formed as per Ext.A4 agreement runs parallel to the pathway formed by him for access to defendants 1 and 2 through plaint schedule item No.2 property and it makes no difference for defendants 1 and 2 as far as their right of access to the properties **RSA.No.1111/2009.** 3 purchased by them are concerned. It is alleged by the plaintiff that of late, defendants 1 and 2 abandoned the pathway covered by Ext.A4 agreement and started using the plaint item No.2 property for access to the properties covered by Exts.B1 and B4 sale deeds. It is also alleged by the plaintiff that in so far as defendants 1 and 2 have been given an alternate pathway to the properties purchased by them, they have no right to use the plaint schedule item No.2 property for access to their properties. The plaintiff, therefore, claimed a decree of prohibitory injunction restraining defendants 1 and 2 from using the plaint schedule item No.2 property as pathway to the properties covered by Exts.B1 and B4 sale deeds. 3. The defendants resisted the suit contending, among others, that the right conferred on them by the plaintiff to use the plaint schedule item No.2 property for access to the properties as per the terms of Exts.B1 and B4 sale deeds cannot be taken away unilaterally by the plaintiff. 4 ## **RSA.No.1111/2009.** In the written statement filed by defendants 1 and 2, they have specifically denied the case of the plaintiff that he has formed an alternate pathway for them from the southern public road and that they have been using the same. In the written statement filed by defendants 1 and 2, they have also raised a counter claim seeking a decree of mandatory injunction directing the plaintiff to remove the obstructions caused to the user of the pathway provided to them as per the terms of Exts.B1 and B4 sale deeds. 4. The trial court rejected the case of the plaintiff, dismissed the suit and decreed the counter claim. The appellate court, on a re-appraisal of the evidence on record, confirmed the decision of the trial court. Hence this second appeal by the plaintiff challenging the dismissal of the suit as also the decree in the counter claim. 5. Heard the learned Senior Counsel for the appellant as also the learned counsel for respondents 1 and 2. **RSA.No.1111/2009.** 5 6. The learned Senior Counsel for the appellant, relying on the decision of this Court in **Thilakraj v. Sebastian** (2014(4) KLT 714), contended that in so far as defendants 1 and 2 are enjoying only a right of easement over the plaint schedule item No.2 property, the same can be realigned, for, the exercise of right of easement by the dominant owner is always subject to the condition that it imposes least burden on the servient tenement and it does not interfere with the right and enjoyment of the servient tenement by its owner. According to the learned Senior Counsel, the pathway provided for defendants 1 and 2 through plaint schedule item No.1 property passes through the side of his residential building in the said property and as such, the user of the said property by defendants 1 and 2 and others affects his privacy. He also contended, relying on the sketch prepared by the Advocate Commissioner appointed in the suit, that the pathway covered by Ext.A4 agreement is more convenient for the user of defendants 1 6 ## **RSA.No.1111/2009.** and 2 and therefore, there is absolutely no reason for defendants 1 and 2 to insist that they will use only the pathway provided in Exts.B1 and B4 sale deeds. According to the learned Senior Counsel, in a case of this nature, the court can certainly grant the relief claimed by the plaintiff. 7. Per contra, the learned counsel for respondents 1 and 2 contended that the decision of this Court in **Thilakraj v. Sebastian** (Supra) is a decision rendered in the context of Section 22 of the Indian Easements Act and Section 22 of the said Act has no application to cases where the way over the premises of the servient owner has been ascertained by express grant. He also contended that in such cases, the owner of the servient tenement cannot substitute a new pathway for the old one and ask the dominant owner to take the substituted pathway. True, this Court held in **Thilakraj v. Sebastian** (supra) that the law cannot be rigid and remain static and has to be dynamic and has to device method within **RSA.No.1111/2009.** 7 permissible limits to modulate relief to the parties to suit their needs and ensure that justice is rendered to all. It is also held by this Court in the said decision that the courts will have to adopt such means to render justice to people without doing violence to statutory provisions. It is further held by this Court that even in a case where Section 22 of the Easements Act may not strictly apply, the same cannot tie down the hands of the court from granting relief to one while safeguarding the interests of the other. The said decision is a decision rendered in the context of a claim of easement by prescription, which right is acquired by a person by a long and continuous user of a property, whereas the easement that is claimed in the present case is an easement by grant. An easement by grant is a contract. It is fundamental that a contract cannot be altered unilaterally by one of the parties to the contract. There is nothing on record to indicate that the right conferred on defendants 1 and 2 as per the terms of Exts.B1 and B4 sale **RSA.No.1111/2009.** 8 deeds to use the plaint schedule item No.2 property for access to the properties covered therein has been varied by the parties therein. As such, in the absence of any right for the plaintiff to insist that defendants 1 and 2 shall use the properties covered by Ext.A4 agreement in the place of the way provided for in Exts.B1 and B4 assignment deeds, this Court is unable to accept the contention raised by the plaintiff. The second appeal, in the said circumstances, is devoid of any merit and the same is, accordingly, dismissed. _**Sd/-**_ **P.B.SURESH KUMAR, JUDGE.** ## _**Kvs/-**_ _**// true copy //**_ _**PA TO JUDGE.**_