VIJAYAN @ MONI S/O. DAMODARAN; SOUJITH; PREMJITH v. SURENDRAN S/O. KUMARAN; BIJIMOL @ BINDU (W/O. SASIKUMAR)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.M.BABU
Judgment Date: 2019-07-26
Court Decision / Holding: Second appeal dismissed.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

VIJAYAN @ MONI S/O. DAMODARAN
SOUJITH
PREMJITH

Respondents

SURENDRAN S/O. KUMARAN
BIJIMOL @ BINDU, W/O. SASIKUMAR

Legal Representation & Advocates

Counsels for Petitioners

• Sri T. Jayakrishnan
• Sri R. Krishnakumar

Counsels for Respondents

• Sri B. Pramod

Case Synopsis & Summary

This Regular Second Appeal was heard by a single judge of the Kerala High Court in RSA No. 671 of 2019. The appellants (defendants) challenged an injunction decree that restrained them from trespassing into the plaint schedule properties, obstructing construction of boundary walls, and obstructing the plaintiffs’ peaceful possession and enjoyment. The plaintiffs, SURENDRAN and BIJIMOL, claimed exclusive rights in the properties under Ext A1 partition deeds: plaint item 1 was allotted to the first plaintiff and item 2 to the husband of the second plaintiff, both in possession. The defendants claimed an easement by prescription over a pathway through the plaint schedule properties to access the road, arguing they could tack the user of their predecessor-in-interest. The trial court granted an injunction; the first appellate court dismissed the defendants’ appeal, and the second appeal followed. The court evaluated the evidence, noting lack of proof of 20 years’ uninterrupted use under Section 15 of the Easements Act, though it acknowledged the possibility of tacking upon a predecessor’s user. A key issue involved whether a suit by the plaintiffs could be filed on behalf of the husband of the second plaintiff without a power-of-attorney, a point upheld by Narayanan Nair v. John Kurian (1988 (1) KLT 673). Ultimately, the court held no substantial question of law and dismissed the second appeal, affirming the injunction and the plaintiffs’ possession.

Provisions of Law Cited

Section 15 of the Easements Act

Legal Doctrines & Maxims

Easement by prescription
tacking of user to predecessor-in-interest

Submissions & Arguments

Contentions of Appellants / Petitioners

Defendants contended they have acquired an easement by prescription over the plaint schedule path enabling access to the road and could tack the user of their predecessor-in-interest. They argued the defendants’ use of the path pre-dated the suit and that the plaintiff-husband’s rights in plaint item 2 were not shown via proper authorization, relying on the principle that the predecessor’s use can establish easement; they asserted the trial court and first appellate court erred in not recognizing their easement claim.

Contentions of Respondents

Plaintiffs maintained there is no easement by prescription over the plaint schedule properties; the properties are independently owned and occupied; the claimed path through plaint item 1 does not constitute a legally recognized easement, and the defendants failed to prove uninterrupted user for the requisite period. They challenged the best witness evidence of Krishnan and argued the lack of any instrument proving such easement; they also asserted the power-of-attorney issue was resolved per Narayanan Nair v. John Kurian.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Narayanan Nair v. John Kurian	1988 (1) KLT 673	Positive	The court relied on this decision to uphold that a suit for protection of rights can be filed on behalf of the husband without a separate power-of-attorney, thereby rejecting the objection on that ground.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 26TH DAY OF JULY 2019 / 4TH SRAVANA, 1941** **RSA.No.671 of 2019** **AS 44/2014 of SUB COURT, CHERTHALA DATED 07-03-2019 OS 247/2012 of PRINCIPAL MUNSIFF COURT, CHERTHALA** ## **APPELLANTS/APPELLANTS/DEFENDANTS** **1 VIJAYAN @ MONI S/O. DAMODARAN, HOUSEHOLD AFFAIRS, AGED 65 YEARS, RESIDING AT PRIYALAYAM, MARUTHOORVATTOM P.O-688 539, CHERTHALA, ALAPPUZHA.** **2 SOUJITH, AGED 54 YEARS** **W/O. VIJAYAN, HOUSEWIFE, RESIDING AT PRIYALAYAM, MARUTHOORVATTOM P.O-688 539, CHERTHALA, ALAPPUZHA.** ## **3 PREMJITH, AGED 30 YEARS** **S/O. VIJAYAN, CONTRACT EMPLOYEE, RESIDING AT PRIYALAYAM, MARUTHOORVATTOM P.O-688 539, CHERTHALA, ALAPPUZHA.** **BY ADVS. SRI.T.JAYAKRISHNAN SRI.R.KRISHNAKUMAR (CHERTHALA)** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS** - **1 SURENDRAN S/O. KUMARAN, AGED ABOUT 63 YEARS, RESIDING AT THOTTUNGALVELIYIL, MARUTHOORVATTOM P.O,688 539, CHERTHALA.** **RSA.671/2019** 2 **2 BIJIMOL @ BINDU, W/O. SASIKUMAR, HOUSE WIFE, AGED ABOUT 44 YEARS, THOTTUNGALVELIYIL, MARUTHOORVATTOM P.O, 688 539, CHERTHALA.** **BY ADV. SRI.B.PRAMOD** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.671/2019** 3 ## JUDGMENT 1. The trial court granted a decree of injunction to the plaintiffs. The defendants were restrained from trespassing into the plaint schedule properties, using those properties for thoroughfare, causing any obstruction to the construction of compound walls on the boundaries of those properties and from causing any obstruction to the peaceful possession and enjoyment of the properties by the plaintiffs. The appeal filed by the defendants against the decree was dismissed by the lower appellate court. They therefore filed the second appeal. 2. The case of the plaintiffs goes as follows : The first plaintiff and the husband of the second plaintiff are brothers. As per Ext A1 partition deed, plaint item 1 property was allotted to the first plaintiff and item 2 property was allotted to the husband of the second plaintiff. The first plaintiff and the husband of the second plaintiff are in possession of their respective **RSA.671/2019** 4 properties. The residential property of the defendant is on the eastern side of plaint item No.1 property. The said property was sold to the defendants by one Krishnan who was using the pathway running through the property on the north to reach the public road. The defendants are also using the said pathway. The plaint item No.1 property and the property of the defendants are separated by a boundary wall. Occasionally the defendants were passing through the plaint schedule properties as permitted by the plaintiffs. The defendants have not acquired any easement to use the plaint schedule properties as a pathway. 3. The defendants have the following contentions: The plaintiffs have no right in plaint item 2 property. The defendants and Krishnan are using the plaint schedule properties to reach the road on the west. There is no pathway in the northern property for the defendants to use. They have been using the pathway running through the plaint schedule properties for access to their house from the road. They have acquired an easement by **RSA.671/2019** 5 prescription. 4. Both sides adduced evidence before the trial court. PWs - 1 to 3 and DWs 1 to 3 were examined. Exts A1 to A5, B1, C1 and C1(a) were marked. 5. Heard Sri.T.Jayakrishnan, the learned counsel for the appellants/defendants. 6. The defendants should prove the easement claimed by them. They claimed easement by prescription. The courts below concurrently found that the defendants failed to prove the easement by prescription claimed by them. The first defendant gave evidence as DW1. He purchased his property under Ext A4 in 2007. The suit came in 2012. There has been no user of any way through the plaint schedule properties by the defendants for 20 years to acquire an easement under Sec.15 of the Easements Act. However, they are entitled to tack on their user to the user of their predecessor-ininterest. **RSA.671/2019** 6 7. The person who transferred the property of the first defendant to him was Krishnan. According to the defendants, Krishnan was using the plaint schedule properties for access to the road on the western side. Krishnan was the best witness to speak to it. He is alive, but not examined. According to DWs 1 and 2, Krishnan is laid up for the past 25 years. Still, he could have been examined at home by taking out a commission. According to DW3, he saw three months before his examination in court Krishnan using the way in the plaint schedule properties. The said evidence of DW3 is in conflict with the evidence of DWs 1 and 2 that Krishnan is laid up. DW1 who is the nephew of Krishnan did not produce any medical records to suggest that Krishnan was laid up or unable to speak. As indicated by the courts below, the defendants failed to examine the best witness to prove their claim. The trial court considered the evidence of DWs 2 and 3 in their crossexamination that they had no much role behind the preparation of their respective proof-affidavits. I do not **RSA.671/2019** 7 see any reason to find fault with the concurrent findings of the courts below on facts. 8. It was contended that the plaintiffs had no right of ownership in plaint item No.2 property. The said property is owned and possessed by the husband of the second plaintiff. The suit was filed by the plaintiffs on behalf of the husband of the second plaintiff. The objection of the defendants was that no power-of attorney was executed by the husband of the second plaintiff authorizing any of the plaintiffs to file the suit. This question was considered by the trial court. It rejected the said contention relying on the decision of this court in Narayanan Nair v. John Kurian (1988 (1) KLT 673) . In the light of the said ruling of this court, the objection of the defendants, referred to above, cannot stand. 9. A question is raised in the memorandum of appeal as a substantial question of law to the effect that a simple suit for injunction was not sufficient. It is not stated as **RSA.671/2019** 8 to what else is required. The plaintiffs need to file only a suit for injunction to prevent the entry of the defendants into the plaint schedule properties. 10. The second appeal is without any merit. No substantial question of law is involved in it. The same deserves only a dismissal. 11. Dismissed. Sd/- A.M.BABU Judge Mrcs/23.7.