IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 894 of 2010(O)
1. C.MOHANDAS,AGED 53 YEARS,
... Petitioner
Vs
1. SREEKUMAR T.P.,J 136 PATTOM, PLAMOODU
... Respondent
For Petitioner :SRI.MOHAN JACOB GEORGE
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :29/11/2010
O R D E R
THOMAS P JOSEPH, J.
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O.P(C).No.894 of 2010
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Dated this 29th day of November, 2010
JUDGMENT
Plaintiff in O.S.No.1741 of 2009 of the court of learned
Additional Munsiff, Thiruvananthapuram and appellant in
C.M.A.No.28 of 2010 of the court of learned District Judge,
Thiruvananthapuram is the petitioner before me challenging
dismissal of I.A.No.9833 of 2009 as confirmed by the learned
District Jude in the C.M appeal. Petitioner sued for a decree for
prohibitory injunction against respondent closing down plaint B
schedule which petitioner described in the plaint as a way having
width of 3 links and length of 15feet. According to the petitioner,
plaint A schedule belonged to him as per Ext.P3, assignment
deed No.5179 of 2007 and he was given a right of easement by
way of grant over plaint B schedule as per the said document. But
respondent attempted to close down the said way. hence
petitioner filed the suit and applied for an order of temporary
injunction. In the trial court Advocate Commissioner inspected
the property and submitted Ext.P7, report. Trial court was
inclined to hold that descriptions in Ext.P3, assignment deed
regarding the way did not tally with plaint B schedule
O.P(C).No.894 of 2010 : 2 :
descriptions or as reported by the Advocate Commissioner and
refused to grant injunction. Learned District Judge confirmed the
said order observing that it would appear that petitioner is
claiming right of way through another plot of land not mentioned
in Ext.P3, assignment deed and regarding that way there is no
proper plea of easement. Learned counsel submits that petitioner
has aright of easement by implied grant over plaint B schedule.
Learned counsel has referred me to a passage from Easement
and Licences by Katiar, page 253 where it is stated that if the
right of way existed during common ownership it cannot in the
strict sense be described as an ‘easement’ but is a ‘quasi-
easement’. It is also contended by learned counsel that there are
circumstances indicating implied grant in favour of petitioner
which the courts below have not taken into account. The further
argument advanced by learned counsel is that finding of the
courts below that the claim made in the plaint is in respect of a
way different from the way then referred to in Ext.P3, assignment
deed is not correct.
2. I have been taken through Ext.P3, assignment deed in
favour of petitioner concerning plaint A schedule. There,
description regarding way is thus:- a way of having width of 3
links running east-west along the northern side of plaint A
schedule. The plaint or Ext.P3, assignment deed does not say that
O.P(C).No.894 of 2010 : 3 :
the said way extended further towards east of plaint A schedule.
Obviously, that is the reason why petitioner is now setting up a
claim of easement by way of implied grant through plaint B
schedule apart from the right granted to the petitioner for access
to plaint A schedule as per Ext.P3, assignment deed.
Commissioner has also reported that the disputed property is not
lying as a way in the way it is described in plaint B schedule. It is
in these circumstances courts below have refused to grant
injunction with respect to plaint B schedule.
3. If petitioner has a contention that he has, apart from
the right granted to him over the way referred to in Ext.P3, right
of access to the property described by the Advocate
Commissioner in his report it is open to him to prove that case of
his. Now courts below have found concurrently that the way
described in Ext.P3, assignment deed is not the way Advocate
Commissioner has reported in Ext.P4. In view of that finding I do
not find reason to interfere with orders passed by the courts
below but, I make it clear that the trial court shall decided the
suit untrammeled by the findings in the judgment/order under
challenge.
This petition is dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-