IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 RSA.No. 114 of 2004() --------------------- AS.151/2003 of III ADDITIONAL DISTRICT COURT (ADHOC),FAST TRACK COURT NO.I, THRISSUR OS.41/1997 of PRINCIPAL MUNSIFF COURT,IRINJALAKUDA .................... APPELLANT/APPELLANT/PLAINTIFF -------------------------------------------------------- BIJU, S/O. KUTTAPPAN, MANGALATH HOUSE, POOVATHUSSERY, THRISSUR. BY ADV. SRI.V.V.SIDHARTHAN SRI.M.L.ABRAHAM RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. OUSEPH, S/O. VAREED, KALAPARAMBIL HOUSE, POOVATHUSSERY, THRISSUR. 2. ANTO S/O. PORINCHU, PANJIKKARAN HOUSE, POOVATHUSSERY, THRISSUR. ADV. SRI.O.D.SIVADAS FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.114 of 2004 -------------------------------------- Dated this the 23rd day of September, 2009. JUDGMENT This Second Appeal arose from judgment and decree of learned III Additional District Judge (Adhoc), Fast Track Court No.I, Thrissur in A.S.No.151 of 2003 confirming judgment and decree of learned Principal Munsiff, Irinjalakuda in O.S.No.41 of 1997. Appellant claimed that plaint A schedule having an extent of five cents in survey No.1228/5 of Kalloor Village was acquired by him from Poulose and Mariam as per Ext.A1, assignment deed dated 8.3.1996. According to the appellant, in between that property and the panchayat road on the west there is a small strip of land. A pathway having width of three feet originated from north-eastern end of that strip of land and went towards east and ends at the property of respondents. His apprehension is that respondents may trespass into his property and widen the said pathway. Respondents claimed that while assigning the suit property in favour of appellant, the vendors had reserved a right of way through the said property for convenient enjoyment of the rest of the property belonging to them. Later, respondent No.1 purchased the property belonging to vendors as per Ext.B1, dated 23.12.1996 together with the right to use the pathway reserved in Ext.A1. Accordingly, respondent No.1 has got right to use the said pathway referred to in Ext.A1, having width of 12 feet. He denied that width of the pathway is three feet. Both sides adduced evidence in the trial court. Learned Munsiff found from Exts.A1 RSA No.114/2004 2 and B1 that there is a reference in Ext.A1 regarding right of way in favour of common vendors of Exts.A1 and B1 and that it is negative in character, it ran with the land and hence vendors were competent to assign the right of way also in favour of respondent No.1. According to learned Munsiff it is second part of Section 40 of the Transfer of Property Act (for short, “the Act”) that applied since the covenant is negative in character. Suit ended in dismissal. Appellant took up the matter in appeal. Learned Additional District Judge found that covenant is negative in character, that appellant is not required to do any act for enjoyment of the covenant by vendors and that learned Munsiff has rightly found that it is Section 40 of the Act applicable to the case. Appeal was dismissed. Against that dismissal this Second Appeal is filed raising the substantial question of law that the finding of the courts below that the right of way reserved as per Ext.A1 is negative in character is contrary to law. 2. So far as existence of the pathway is concerned, advocate commissioner has reported in Exts.C1 and C1(a) and the courts below found in favour of existence of the way. 3. It is not disputed that suit property as well as property belonging to respondent No.1 belonged to common owners who executed Exts.A1 and B1 in favour of appellant and respondent No.1, respectively. Ext.A1 is dated 8.3.1996 while Ext.B1 is dated 23.12.1996. Learned counsel for appellant contends that though a right of way is reserved in Ext.A1 it is not stated that the reservation was for convenient enjoyment of any other property belonging to the vendors. RSA No.114/2004 3 According to the learned counsel, covenant contained in Ext.A1 is positive in character and hence assignee from common vendors is not entitled to its user. A reading of Exts.A1 and B1 (copy of which the learned counsel gave to me for perusal) would show that suit property which was conveyed to the appellant as per Ext.A1 and property towards east which was conveyed to respondent No.1 as per Ext.B1 belonged to Poulose, the common vendor as per partition deed No.1141 of 1994 and allotted to his share as B schedule. His mother, Mariam had a life interest in the said property and hence she also joined in Exts.A1 and B1. Reading of Ext.B1 would show that it is the property which belonged to Poulose as per the above said partition and excluding the suit property which was assigned to the appellant as per Ext.A1, that was conveyed to respondent No.1 as per Ext.B1. Therefore, it is idle to contend that at the time of Ext.A1 and reserving right of way in that assignment deed common vendor had no property on the east. Reading Exts.A1 and B1 it is clear that right of way is reserved in Ext.A1 for the beneficial enjoyment of the property which belonged to the common vendor on the east which later was assigned to respondent No.1 as per Ext.B1. 4. Courts below found that though the covenant may appear to be positive in appearance it is actually negative in character in the sense that appellant was not required to do any act for its enjoyment by the covenantee. In Princy v. Jose [2009 (2) KLT 426) this Court held that absence of negative words is not by itself a decisive factor to stamp a covenant with a positive character and that substance of the covenant has to be looked into to RSA No.114/2004 4 find out whether it is positive or negative. In this case in Ext.A1, common vendor reserved right of way. I do not find anything in Ext.A1 which required appellant to do anything for its enjoyment by the covenantee and on the other hand, the covenant impliedly contains an interdiction against appellant doing any act affecting right of enjoyment of the way by the common vendor. Therefore, courts below are justified in concluding that the covenant is negative in character though, positive in words and hence second part of Section 40 of the Act would apply. The benefit of that covenant goes to the assignee (respondent No.1) from the common vendor. 5. To be a substantial question of law, the question raised must be debatable, not previously settled by law or by precedent or must have a material bearing on the decision of the case. On hearing the learned counsel and going through the judgment under challenge and also referring to Exts.A1 and B1 I do not find any substantial question of law involved in this Second Appeal. In the result, this Second Appeal is dismissed. THOMAS P.JOSEPH, Judge. cks