K.R. JOSEPH Vs. ARCHDIOCESE OF VERAPOLY

JUDGEMENT

(1.) Plaintiffs are the appellants. Suit was one for declaration of plaintiffs’ right of easement by prescription to use plaint ‘B’ and ‘C’ schedule properties, forming part of ‘A’ schedule, and for prohibitory injunction restraining the defendants from obstructing their enjoyment over ‘B’ and ‘C’ schedule properties. Suit claims were resisted by the defendants, the 1st defendant separately, and the rest, defendants 2 to 4 jointly, filing written statements, with the latter among them setting forth a counter claim for mandatory and prohibitory injunction against the plaintiffs over portions of plaint ‘A’ schedule property scheduling them separately as ‘D’ schedule 1 and 2 and ‘E’ schedule. The trial court partly decreed the plaint claim declaring the right of the plaintiffs to use ‘C’ schedule pathway and also granted an injunction restraining the defendants from obstructing such use. Counter claims raised by defendants 2 to 4 were also partly decreed

(2.) Plaint ‘A’ schedule property having an extent of 19.5 cents in Sy.No.1016/2 in Cheranelloor village, admittedly, belonged to the 1st defendant, namely, Archdiocese of Verapoly. Predecessor of the original plaintiffs, their father, namely, Rocky Peter was a kudikidappukaran under the 1st defendant. Putting up a homestead in ‘A’ schedule and in occupation thereof, he had improved the entire ‘A’ schedule, and after his death, the plaintiffs continued in possession of the property with the rights of kudikidappukaran, is their case. Admittedly, the present proceeding is the second round of litigation between the parties over the very same property, ‘A’ schedule described in the plaint. The 1st defendant had executed sale deeds in favour of defendants 2 to 4 over separate portions of plaint ‘A’ schedule excluding and leaving apart three cents in such property towards the kudikidappu of the plaintiffs. Plaintiffs instituted a suit as O.S.No.14 of 1996 before the 1st Additional Sub Court, Ernakulam, in which, asserting of lawful possession over the entire ‘A’ schedule property, three cents enjoyed as kudikidappu and the rest under an agreement of sale entered with the 1st defendant, a decree of injunction against the defendants, who are the present defendants as well, was applied for impeaching the sale deeds executed by the 1st defendant in favour of defendants 2 to 4. That suit was dismissed and Ext.B1 is a copy of the judgment. Though the plaintiffs challenged the dismissal of the suit before the superior forums, it was of no avail. Withdrawing the Special Leave Petition preferred against the dismissal of the second appeal by this Court confirming the dismissal of the suit, plaintiffs had moved a review petition; and that too, was dismissed, however, with observations safeguarding the rights of the plaintiff’s kudikidappu under their occupation in a portion of ‘A’ schedule.

(3.) Pursuant to the dismissal of the review petition, plaintiffs instituted the present suit for declaring their right to amenities attached to kudikidappu, over plaint ‘B’ schedule – some structures adjoining to the kudikidappu building, namely, a fuel cum lumber shed, terraced bathroom cum closet, septic tank and a well, and, easement by prescription attached to kudikidappu over ‘C’ schedule, described as a pathway having a width of 8 links and lengh of 11.45 meters passing through ‘A’ schedule property from the road to the building occupied by them. Declaration of the rights of kudikidappukaran over the amenities attached and easement by prescription in ‘B’ and ‘C’ schedule properties and perpetual prohibitory injunction against the defendants from obstructing their enjoyment over the same, was applied for. Suit being decreed only in part with respect to use of ‘C’ schedule pathway, that alone, and dismissed on other claims canvassed, and the counter claims raised by the contesting defendants partly decreed, and, with such decision of the trial court approved by the first appellate court as well dismissing the appeal, feeling aggrieved, the plaintiffs have come up with this second appeal.