SUBHA JAYAN Vs. MEENAKSHY KUMARAN
HIGH COURT OF KERALA
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(1.) The substantial questions of law formulated on which notice was issued to the respondents read as follows:
1. Whether the courts are justified in holding that suit is hit by O.23 R.1(2) Code of Civil Procedure without the plaint and other documents in the earlier suit
2. Whether the courts below are justified in holding that the cause of action in both the suits are one and the same
3. When the subsequent suit is for a different and distant relief and a different cause of action, the dismissal of an earlier suit on a different subject matter and different cause of action is hit by O.23 R.1 of code of Civil Procedure
4. Whether the courts below are justified in not answering all issues as contemplated under O.20 R.5 Code of Civil Procedure
5. Whether non compliance of O.20 R.5 Code of Civil Procedure renders the judgment void
(2.) This second appeal is filed by the plaintiff in a suit for declaration and prohibitory injunction. The dispute in the suit was with respect to a pathway claimed by the plaintiff. The plaintiff is the owner in possession of the plaint schedule property. The defendants are the owners in respect of the property on the western side of the plaintiff's property. On the further west of the defendant's property is the Thoppumpady - Alleppy road. The plaintiffs have been using the pathway from the plaintiff's property through the property of the defendants to reach the public road. The pathway was having 4 feet width and an opening of 6 feet on the western boundary of the plaint schedule property. The plaintiff has no other pathway except this. He has been using the pathway for more than 50 years continuously as of right and without any obstruction. In the alternative the plaintiff also claimed easement by necessity.
(3.) Defendants filed written statement contending that the plaintiff and his predecessors were passing to the public road from the plaint A schedule through the property on the northern side of the plaint A schedule as well as southern side. The property on the northern side was purchased by a company. The plaintiff and members of his family were passing through the property on the southern side of plaint A schedule. It was also contended that with the permission of the defendants 1 and 2 they used the property to enter the road on the west. The plaintiff constructed a compound wall on the western side of plaint A schedule property leaving a gap for ingress and egress for the defendants to operate China net in the Kayal on the further east of the plaintiff's property. The plaintiff was using the property on he southern side of plaint A schedule property to enter the public road. That property was obtained as kudikidappu by one Narayanan the cousin brother of the father of the plaintiff from the landlord. When the defendants wanted to construct a compound wall on the western side of the property the plaintiff obstructed. On the complaint of the plaintiff defendants 1, 4, 5 and 6 were taken into custody by the police. At that time Sugunan, S/o. Narayanan quarrelled with the 3rd defendant and in that quarrel Sugunan died and the 3rd defendant was sentenced to life imprisonment. After the death of Sugunan the plaintiff and his family were not using the property of the defendants to reach the public road. Earlier the plaintiff filed O.S. 503 / 1995 for injunction claiming right of way before the Munsiff Court, Kochi and that suit was dismissed as not pressed. Without mentioning about the same the present suit was filed and an ex parte injunction was obtained.;
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