ALI JIBIN BABU O.P.(C) No. 1758 of 2023 · Kerala High Court
Case at a glance
Outcome
Dismissed
petition is dismissed
Provisions considered
- Indian Easement Act s. 13(e)
Key paragraphs
- Para 55. The definite case of the plaintiff is that the plaint A and B schedule properties were a single tenement jointly held by the predecessor in interest of the plaintiff and defendants, and after the partition, there was severance of tenements and plaint C-schedule property…
Judgment
RESPONDENT/PETITIONER/PLAINTIFF: RADHAKRISHNAN AGED 59 YEARS S/O VADASSERY KALLUR VEETTIL CHANDRAMATHY, METHALA VILLAGE AND DESOM, KODUNGALLUR TALUK,, PIN - 680669 BY ADVS.P. M RAFEEK (PATTAM) V.A.NAVAS(K/1104/2002) SARA JOHN(K/003061/2022) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).No.1758/2023 -:3:- J U D G M E N T Ext.P6 order allowing an application to amend the plaint in O.S.No.29/2019 on the files of the Munsiff's Court, Kodungallur (for short 'the trial court') is under challenge in this original petition.
The petitioners are the defendants and the respondent is the plaintiff in O.S.No.29/2019. Ext.P1 is the plaint. The suit is one for declaration of right of easement and for consequential permanent prohibitory injunction. The plaint A-schedule property belongs to the plaintiff. The plaint B-schedule property belongs to the defendants. The plaint C-schedule property is the way claimed by the plaintiff for ingress and egress to the plaint A- schedule property. In the plaint the plaintiff alleged that the plaint A and B schedule property was common tenement earlier and after the severance, the plaint C-schedule property is being used for ingress and egress to the plaint A-schedule property.
Now the plaintiff filed Ext.P3 amendment application O.P.(C).No.1758/2023 -:4:- to amend the plaint. The plaintiff wanted to incorporate paragraphs 3A to 3D in the body of the plaint and also to amend the prayer portion. In the proposed amendment, the plaintiff alleged that, even though there was severance of tenements, the plaint C-schedule property is not in existence. Hence, the plaintiff wants to set out C-schedule way for ingress and egress to the plaint A-schedule property by way of amendment. The trial court after hearing both sides, allowed Ext.P3 application as per Ext.P6 order. It is challenging the said order, this original petition has been filed.
I have heard Sri. Mansoorali, the learned counsel for the petitioners as well as Sri. P.M. Rafeek, the learned counsel for the respondent.
The definite case of the plaintiff is that the plaint A and B schedule properties were a single tenement jointly held by the predecessor in interest of the plaintiff and defendants, and after the partition, there was severance of tenements and plaint C-schedule property has been used as a way for ingress and egress to the plaint A-schedule property. Now in the proposed O.P.(C).No.1758/2023 -:5:- amendment application, the plaintiff says that actually the C- schedule way is not in existence. But since he is entitled for easement of necessity through the plaint B-schedule property for ingress and egress to the plaint A-schedule property, the way shown as C-schedule property has to be set out. Section 13 (e) of the Indian Easement Act (for short 'the Act') says that, when a partition is made of the joint property of several persons, if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement.
Similarly, Section 14 of the Act says that, when a right to a way of necessity is created under section 13, the transferor, the legal representative of the testator, or the owner of the share over which the right is exercised, as the case may be, is entitled to set out the way, but it must be reasonably convenient for the dominant owner. Thus, even if the C-schedule property shown in the schedule is not in use or in existence, the plaintiff has every right to ask to set it out as way to the plaint A- schedule property. Hence, the trial court was absolutely justified in allowing the amendment application. Accordingly, this original O.P.(C).No.1758/2023 -:6:- petition is dismissed. The trial court shall give an opportunity to the defendants to file additional written statement. sd/- DR. KAUSER EDAPPAGATH JUDGE O.P.(C).No.1758/2023 -:7:- APPENDIX OF OP(C) 1758/2023 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P 3 THE TRUE COPY OF THE PLAINT IN OS 29/2019 DATED 05.01.2019 THE TRUE COPY OF THE COMMISSION REPORT DATED 27.11.2019 THE TRUE COPY OF THE APPLICATION I.A.NO:2535/2019 IN O.S 29/2019 DATED 19.10.2022 Exhibit P 4 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 27.02.2020 Exhibit P5 Exhibit P6 THE TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER DATED 26.02.2020 THE CERTIFIED COPY OF THE ORDER IN I.A.NO:2535/2019 IN O.S 29/2019 DATED 19.10.2022 OF THE MUNSIFF COURT, KODUNGALLUR
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: petition is dismissed
Which statutory provisions did this judgment involve?
Indian Easement Act — s. 13(e).
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.