BALAGOPAL v. RADHA G NAIR
Court: High Court of Kerala
Bench: HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
Judgment date:
Case summary
High Court of Kerala judgment dated 2024-07-25. BALAGOPAL v. RADHA G NAIR. Read the judgment and case details on LawSphereX.
Judgment text
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE M. A. ABDUL HAKHIM TH THURSDAY, THE 25 DAY OF JULY 2024 / 3RD SRAVANA, 1946 RSA NO. 337 OF 2024 AGAINST THE JUDGMENT DATED 07. 03. 2024 IN AS NO. 3 OF 2016 OF ADDITIONAL DISTRICT JUDGE - V, THIRUVANANTHAPURAM IN THE JUDGMENT DATED 16. 10. 2015 IN OS NO. 1223 OF 2011 OF III ADDITIONAL MUNSIFF COURT, THIRUVANANTHAPURAM APPELLANTS/RESPONDENTS 1 & 2/DEFENDANTS 1&3: 1 BALAGOPAL, AGED 57 YEARS S/O LATE NAVAKUMAR, C/O RAJAGOPAL, SAROVARAM, OPPOSITE G G HOSPITAL, MURINJAPALAM, MEDICAL COLLEGE, THIRUVANANTHAPURAM, PIN - 695011 2 RAJALEKSHMI, AGED 69 YEARS D/O LATE MADHAVI AMMA, 'KRUPA', POTHUJANAM LANE, KUMARAPURAM, MEDICAL COLLEGE P O, THIRUVANANTHAPURAM,, PIN - 695011 BY ADVS. R. SUNIL KUMAR A. SALINI LAL ARUN KRISHNA JINU P. BINU RESPONDENTS/APPELLANT&RESPONDENT NO. 3/PLAINTIFF&2ND DEFENDANT: 1 RADHA G NAIR AGED ABOUT 76 YEARS, D/O LATE AMMUKKUTTY AMMA, 'GOKULAM', T C NO.
13/1744, ELANJIMOODU LANE, MURINJAPALAM, MEDICAL COLLEGE, THIRUVANANTHAPURAM,, PIN - 695011 2 VALSALAKUMARI @ THARANUMSIDHIKKI AGED ABOUT 54 YEARS, D/O INDIRA DEVI, GOKULAM, T C NO. 13/1744, ELANJIMOODU LANE, MURINJAPALAM, MEDICAL COLLEGE, THIRUVANANTHAPURAM, PIN 695 011, NOW RESIDING AT GANDHI NAGAR QUARTERS NO. 19, NEEMUCH, MADHYA PRADESH. , PIN - 458441 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ORDERS ON 25. 07. 2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA No. 337 of 2024 2 JUDGMENT 1. The defendants 1 and 3 in a suit for declaration, perpetual injunction and mandatory injunction is the appellant in this appeal. 2. The parties are referred according to their status before the trial Court. 3.
The plaintiff filed the suit for declaring easement by grant over B schedule property and for a consequential st mandatory injunction directing the 1 defendant to unlock B schedule gate, to remove lock put therein allowing the plaintiff to park two cars in B schedule parking lot and for a decree for perpetual injunction st restraining the 1 defendant from alienating the plaint B schedule property. 4. The suit was filed with the aaverments that the plaintiff nd and her niece who is impleaded as the 2 defendant, purchased A schedule property of 1. 21 Sq. mtrs of land as per Exhibit A1 document which is inclusive of a st residential two storied building therein; that the 1 RSA No. 337 of 2024 3 defendant was having another property on the eastern side of the A schedule property, having an extent of 86 Sq.
mtrs; that the plaint A schedule property did not have nd a motorable access; that the plaintiff and the 2 defendant agreed to purchase the plaint A schedule st property as the 1 defendant agreed to provide the B Schedule 20 Sq. ft of land for parking two cars at a time in the said 86 Sq.
Meters; that on account of the same, specific clause was included in Exhibit A1 document that the plaintiff shall be provided space in the ground floor of the three storied building proposed to be constructed by st the 1 defendant for permanent parking of two cars; that from the date of execution of Exhibit A1 the plaintiff, the nd 2 defendant and their tenants have been parking their cars regularly in plaint B schedule property; that they used to lock the gate of the entire property with the help st st of the key given to them by the 1 defendant; that the 1 defendant attempted to sell the plaint B schedule property in order to defeat the right of the plaintiff and nd the 2 defendant over plaint B schedule property. RSA No. 337 of 2024 4 st 5. The 1 defendant filed written statement contending the interalia that, at the time of execution of Exhibit A1, the plaintiff owned a car but the width of the way leading to plaint A schedule property was not sufficient for taking a car.
Subsequently, the width of the way was increased as 7 to 8 feet which is more than sufficient to take a car to the plaint A schedule property. On account of the change of circumstances, the permission incorporated in the scheduled description in the sale deed became unnecessary. The plaintiff has not acquired any permanent or indefeasible right over plaint B schedule property. The provision for parking a car incorporated in the schedule description was on the basis of the circumstances then existed. The clause is not a covenant conferring absolute or indefeasible right but only a permission. The plaintiff has no right to enter into the plaint B schedule property as the permission granted has come to close on account of the change of circumstances. RSA No. 337 of 2024 5 st 6. During the pendency of the suit, the 1 defendant sold rd 61 Sq. mtrs out of the said 86 Sq.
Meters to the 3 defendant as per Exhibit A10 document and hence the rd 3 defendant was also impleaded, making necessary amendments in the plaint. st 7. After amendment of the plaint, the 1 defendant filed additional written statement contending that, the clause with respect to car parking mentioned in Exhibit A1 st confers only a contingent right. Since the 1 defendant has not constructed the building, the plaintiff cannot claim any right and that in view of the alienation of the property, the construction of the three storied building in plaint B schedule property has become an impossibility and hence the clause relied on by the plaintiff is not rd enforceable. The 3 defendant filed a written statement raising more or less same contentions as st raised by the 1 defendant. 8. The Trial Court dismissed the suit holding that the clause relied on by the plaintiff in Ext. A1 is only a contingent contract and the same could be enforced only on RSA No.
337 of 2024 6 construction of a building in plaint B schedule property and that on account of the sale of plaint B schedule property, the suit itself has become infructuous. 9. The plaintiff filed appeal before the First Appellate Court and the First Appellate Court reversed the judgment and decree passed by the trial Court and allowed the suit in part declaring the plaintiff right over B schedule property and further directing the defendants 1 and 3 to unlock the gate of the B schedule property and remove the lock and allow the plaintiff to park two cars in the B scheduled parking lot at any time. With regard to the prayer for injunction from alienation, the First Appellate Court st denied the same, finding that the 1 defendant being the owner of the plaint B schedule property has absolute right to transfer the same,but the same is subject to the right in favour of the plaintiff. 10. I heard the learned counsel for the appellant Sri. R. Sunil Kumar. 11.
The learned counsel for the appellant contended that even the description in plaint B schedule is vague as RSA No. 337 of 2024 7 the location of 20 sq. mtrs. claimed by the plaintiff out of st the 86 sq. mtrs. belonging to the 1 defendant is not specifically described. In such a case, the injunction cannot be granted without identification of the said 20 sq. mtrs of land. He further contended that the clause in Ext. A1 relied on by the plaintiff clearly shows that it is dependant upon the construction of a building in plaint B schedule property. The plaintiff can claim right only on construction of a building therein. According to him, on rd purchase of the property by the 3 defendant, the fact is st that the construction of the building by the 1 defendant has attained an impossibility and though it may be true rd that the 3 defendant is bound by the said clause. Hence the plaintiff cannot enforce the clause in Ext. A1. 12.
On going through the pleadings as revealed from the impugned judgments, I find that even in the written st statement filed by the 1 defendant, he has admitted that the plaintiff started parking the car immediately after execution of Ext. A1. His case as per the written statement is that the same was permitted since the way RSA No. 337 of 2024 8 was not having any sufficient width and that the said permission could not continue, when the way has attained sufficient width for passage of the car. st According to him the permission granted by the 1 defendant has come to close on account of the change in circumstances. It clearly indicates that, the nd understanding between the plaintiff and the 2 st defendant on the one side and the 1 defendant on the st other side while executing Ext.
A1 was that, the 1 defendant will permit parking of the cars in plaint B schedule property and when a three storied building will be constructed in Plaint B schedule property, two car parks will be reserved for the use of the plaintiff and the nd 2 defendant. In that view of the matter, it cannot be said that the claim of the plaintiff is dependant upon the st construction of the building by the 1 defendant. It is not a contingent contract as found by the Trial Court. 13. The further contention of the counsel for the appellant is that, since two car parks are given, the plaintiff is entitled to get only one car park and the other RSA No. 337 of 2024 9 nd car park is to be claimed by the 2 defendant. Here also the Ext. A1 deed shows that, the property is jointly nd purchased by the plaintiff and the 2 defendant and hence both are co-owners of the property and hence the right to have two car parks is also a co-ownership between them.
So the plaintiff being one of the co-owner, can maintain an action for getting two car parks. nd If there is any dispute between the plaintiff and the 2 defendant,the same is to be resolved between them and st the 1 defendant has nothing to do with the same. 14. The contention with regard to the identification of st 20 sq. mtrs. out of 86 sq. mtrs, the liability of the 1 defendant to provide only two car parks to the plaintiff nd and the 2 defendant anywhere in the said 86 sq. mtrs. The plaintiff cannot claim a particular portion of the said 86 sq. mtrs as car park. The plaintiff has included only 20 sq. mtrs out of the said 86 Sq. mtrs in Plaint B Schedule. It indicates that only 20 Sq. mtrs is sufficient for two car st parks for them. It is seen that, as per Ext. A10 the 1 rd defendant has sold only 61 sq. mtrs. to the 3 defendant. RSA No.
337 of 2024 10 st It also probabalize that the 1 defendant is accepting the nd right of the plaintiff and the 2 defendant with respect to the 20 sq. mtrs claimed by the plaintiff. There is no explanation for excluding 25 Sq. mtrs in Ext. A10. In that view of the matter, there cannot be any dispute with regard to the identification of the plaint B schedule property. 15. The learned counsel for the appellant pointed out nd rd that the 2 appellant who was the 3 defendant in the suit is a bonafide purchaser without notice of the nd arrangement between the plaintiff and the 2 defendant st on the one side and the 1 defendant on the other side. Her interest is to be protected. The appeal is filed jointly st rd by the 1 and 3 defendants. If two car parks are st possible in the land remaining with the 1 defendant rd nd after sale to the 3 defendant as per Ext. A10, the 2 appellant could not have any grievance with respect to the property purchased by her. RSA No. 337 of 2024 11 16.
In view of the above discussion, the Regular Second Appeal is dismissed. Sd/- M. A. ABDUL HAKHIM JUDGE Anu
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