Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE N.ANIL KUMAR TUESDAY, THE 12TH DAY OF OCTOBER 2021/20TH ASWINA, 1943 RSA NO.1160 OF 2006 Against the judgment and decree dated 13.11.2006 in
A.S.No.19/1997 of the Sub Court, Tirur arising from the judgment
and decree dated 28.11.1996 in O.S.No.129/1993 of the Munsiff's Court, Parappanangadi APPELLANTS/APPELLANTS/PLAINTIFFS: 1 GEETHA, D/O.VELAYUDHAN, THOTTATHIL HOUSE, PARAPPANANGADI AMSOM DESOM, TIRURANGADI TALUK. 2 GIRISH, S/O.VELAYUDHAN, 3 PRAVEEN, S/O.VELAYUDHAN, 4 SEEMA, D/O.VELAYUDHAN, 5 RATHNAVATHY, W/O.VELAYUDHAN, BY ADV.SRI.JAWAHAR JOSE RESPONDENTS/RESPONDENTS/DEFENDANTS: 1 KALODI ABOOBACKER, S/O.HASSAN, TIRURANGADI AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT. 2 CHUKKAN AHAMMED'S SON K.T.MOHAMMED (DIED), PARAPPANANGADI AMSOM DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT. ..2..
3 BASHEER, S/O.LATE K.T.MOHAMMED, 4 RASAKKE, S/O.LATE K.T.MOHAMMED, 5 SAKKEENA, D/O.LATE K.T.MOHAMMED, 6 ASHRAF, S/O.LATE K.T.MOHAMMED, 7 SAFFIYA, D/O.LATE K.T.MOHAMMED, 8 RESHEED, S/O.LATE K.T.MOHAMMED, * 9 SAINABA, * DIED W/O.LATE K.T.MOHAMMED, (MEMO DATED 24.8.2021 STATING THAT THE 9TH RESPONDENT DIED ON 15.4.2020 IS RECORDED) BY ADV.SRI.K.S.BHARATHAN
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04.10.2021, THE COURT ON 12.10.2021 DELIVERED THE FOLLOWING: ..3..
JUDGMENT
This appeal is directed against the judgment and decree dated 13.11.2006 in A.S.No.19/1997 of the Sub Court, Tirur (hereinafter referred to as 'the first appellate court') arising from the judgment and decree dated 28.11.1996 in O.S.No.129/1993 of the Munsiff's Court, Parappanangadi (hereinafter referred to as 'the trial court').
2. The plaintiffs are the appellants. The suit was
filed for an injunction restraining the defendants from interfering with the user of the pathway. It was later amended to claim easement by prescription. The trial court dismissed the suit. Pending appeal, the defendants produced two additional documents. Hence, an application was filed by the plaintiffs for amending the plaint claiming
..4.. the relief of prohibitory injunction on the admitted fact that the defendants did not have any right over the 3 feet way which was provided by the vendor of the defendants. The first appellate court dismissed both the amendment
application and appeal. Feeling aggrieved by the judgment
and decree of the courts below, the plaintiffs preferred this appeal. The parties are hereinafter referred to as referred in the original suit unless otherwise stated.
3. The plaint averments in brief are hereinbelow:- The plaint A schedule property originally
belonged to the predecessor-in-interest of the plaintiffs by virtue of the registered Will dated 27.3.1977. On the death of the testator, the property devolved upon the plaintiff and he is residing therein. The plaint B schedule property is a way, that is being used by the plaintiff and his predecessors for the past 80 years through the north-
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east of the plaint A schedule property. The plaintiff's predecessor obtained the property as per registered kaichit of the year 1944 and she was residing therein till her death. The plaint B schedule pathway is being used as an access to plaint A schedule property from the year 1944 onwards openly, peacefully without any obstruction as an easement. The property of the defendants lies to
the east of plaint A schedule property. Hence, the suit was filed for a declaration that the plaintiff has got easement right by prescription over plaint B schedule way and for a consequential permanent prohibitory injunction restraining the defendants and their men from obstructing the plaintiff from using the plaint B schedule pathway as an easement by prescription.
4. The 2nd defendant remained exparte. The 1st defendant filed written statement disputing the plaint B ..6..
schedule pathway. According to the 1 st defendant, the disputed way belongs to him exclusively and he is the owner in possession of the same. According to him, no pathway is in existence as contended by the plaintiffs. It is contended that immediately after filing the suit and before the visit of the Advocate Commissioner the plaintiff had demolished the gate and removed the same which was in existence on the west of the plaint A schedule property. He contended that the way to plaint A schedule property is from the road going towards the west on the north of Anchupura Junction. In the additional written statement filed by the 1st defendant it was contended that the plaintiffs have no manner of right to claim easement by prescription over plaint B schedule property and the necessary ingredients to prove easement by prescription are absent in this case.
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5. During the trial of the case, PWs.1 and 2 were examined on the plaintiffs' side. DW1 was examined and marked Exts.B1 to B6 on the defendants' side. Exts.C1 to C5 were also marked.
6. This second appeal was admitted on 13.12.2006
on the following substantial questions of law:- i) Have the courts below acted in accordance with law in appreciating the evidence on record? ii) What is the evidentiary value of Exts.C1 to C5? iii) What, if any, are the rights of the plaintiffs under the Indian Easement Act?
7. At the time of admission, this Court passed an
order dated 13.12.2006 of temporary injunction
restraining the defendants and their men from interfering with the plaintiffs using the plaint B schedule way pending ..8.. disposal of the second appeal. The defendants filed counter affidavit and produced the order dated 13.2.2006 passed by the Sub Court, Tirur in I.A.No.1827/2005. Thereafter, by order dated 13th February, 2007 this Court modified the earlier order and passed the following order:- ”Order of temporary injunction was sought for restraining respondents from interfering with
the use of plaint 'B' schedule way. Interim order
was granted on 13.12.2006. As per order in I.A.No.1827 of 2005 order of injunction granted was restraining appellants from using plaint 'B' schedule way for vehicular traffic till disposal of the appeal. In such circumstance, interim order passed by this Court on 13.12.2006 is extended till disposal of the Second Appeal, making it clear that the order of injunction is subject to the restrictions imposed by Sub Court, Tirur as per order in I.A.No.1827 of 2005.”
8. Alleging that the plaintiffs disobeyed the above order, the defendants filed I.A.No.1/2021 seeking to ..9..
implement the order passed by this Court on 13.2.2007. Considering the fact that the appeal has been pending for the last 15 years, by order dated 12.8.2021 this Court decided to hear the appeal on merits rather than deciding I.A.No.1/2021 on merits.
9. Heard Sri.Jawahar Jose, the learned counsel for the appellants and Sri.K.S.Bharathan, the learned counsel for the respondents 3 to 8.
10. As indicated earlier, the suit was one for
declaration of easement by prescription over plaint B schedule pathway having a width of 8 feet and length of 125 feet. After having heard at length, the learned counsel for the appellants submitted that the appellants are limiting their claim to 3 feet width. In view of the submission made by the learned counsel for the appellants, this Court was of the view that an opportunity ..10..
should be given to the parties to settle the matter through mediation. The learned counsel for the respondents submitted that his party was willing for a mediation. Accordingly, on 15.9.2021, the parties were directed to appear before the High Court Mediation and Conciliation Centre. Pursuant thereto, the mediator submitted a report stating that the matter is not settled.
11. The plaintiff claimed right over plaint A schedule
property by virtue of registered Will dated 27.3.1977 alleged to have been executed in favour of the plaintiff by the plaintiff's step mother Cheeru. In paragraph 4 of the written statement the 1st defendant disputed the title of the plaintiff over plaint A schedule property. In the additional written statement dated 13.12.1995, the 1 st defendant disputed execution of the alleged Will. The plaintiff died pending proceedings. His legal heirs were
..11.. impleaded as supplemental plaintiffs 2 to 6. The 3 rd plaintiff was examined as PW1. The alleged Will deed was not produced before the court. In fact the execution of the Will was not proved.
12. It is the contention of the plaintiff that the plaintiff's step mother has been using the plaint B schedule way since 1944. In order to sustain the plea of easement by prescription under Section 15 of the Easement Act, (1) there must be a pre-existing easement which must have been enjoyed by the dominant owner;
(2) the enjoyment must have been peaceable; (3) the
enjoyment must have been as an easement; (4) the enjoyment must have been as of right; (5) the enjoyment must have been openly; (6) the enjoyment must have been for a period of twenty years; and (7) the enjoyment for twenty years must have been without interruption. ..12..
13. To support the plea of easement by prescription
PW2 was examined. He deposed that he had used the way to reach the plaintiff's house whenever he met him. According to him, he had worked as a Teacher wherein the 1st plaintiff was the Headmaster. He stated that he had visited the house occasionally and not a regular visitor. PW2 was residing far away from the plaint schedule property when he was examined before court. The evidence adduced by PWs.1 and 2 are not sufficient to establish the plaint B schedule pathway.
14. Exts.C1 to C5 are the Commissioner's report
and plan prepared during the pendency of the proceedings. On going through Exts.C1 to C5 there is nothing to indicate that the plaint B schedule pathway as scheduled in the plaint has been in existence on the date of suit. As per the plaint, the plaint B schedule pathway is ..13..
having a width of 8 feet and length of 125 feet passing through the north-eastern side of the plaint A schedule property. It is the specific contention of the plaintiff that the plaint B schedule pathway has been in existence for the past more than 80 years. On the other hand, the 1 st defendant contended that the pathway in existence is not a public pathway and it belongs to him exclusively as part and parcel of his property.
15. When the suit was instituted, the plaintiff failed
to raise sufficient plea to prove easement by prescription. By way of an amendment, the plaintiff raised the plea of easement by prescription over plaint B schedule pathway. The Commission reports do not show that the plaint B schedule pathway is in existence for the last 20 years as contemplated under Section 15 of the Easement Act. In Exts.C2 and C3, the commissioner noted an iron gate and
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steps on the west of the plaintiff's property. It is certain that an alternative pathway was in existence on the date of suit. It is true that an alternative pathway does not take away the right of the plaintiff to claim easement by prescription. However, the right claimed must be certain and the right claimed must have been enjoyed peaceably, openly as of right as an easement without interruption for 20 years. The burden is on the part of the plaintiff. The plaint B schedule description is incorrect as per the Commissioner's report. It is not possible to declare easement by prescription over a pathway which is incorrect as per plaint B schedule description. The plaintiff failed to prove the necessary ingredient to establish easement by prescription.
16. Even assuming that no right as such is established and only an inchoate right is found, that is ..15..
entitled to protection in exceptional circumstances. Thus, out of an abundance of caution, the appellants claimed access through the pathway having a width of 3 feet as an easement by prescription. First of all, the plaintiff claimed a discretionary remedy of injunction on the date of suit. When the alleged pathway is disputed, the plaintiff has
claimed easement by prescription by way of an
amendment. Though some of the documents were produced as Exhibits in first appeal, the basic document was not produced. In fact, the alleged Will was not produced and established the title over the plaint B schedule pathway. It is incorrect to hold that a person who has not acquired a right or perfected a right can maintain an action against the owner of the land over which the right is claimed. On the basis of an occasional use by the plaintiff as an inchoate right or right which has not
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ripened into an easement by prescription, but merely one of the users, no relief can be granted to the user as against the owner of the land. To put it differently, a right, proprietary right or otherwise has to be shown for obtaining the relief. The plaintiff is not very sure about his right. A reading of the plaint would show that the claim is vague and ambiguous. On going through the records, commission reports, evidence and judgments of the two courts below, it is clear that what was agitated by the plaintiff was an easement by prescription. Both the courts below concurrently found that there is absolute want of pleadings or evidence regarding the claim made by the plaintiff on the basis of prescriptive right of easement so as to attract Section 15 of the Easement Act.
17. It is a clear case that the plaintiff has an alternative pathway for his ingress and egress on the date ..17..
of suit. Even assuming that the plaintiff had occasion to walk through the pathway having a width of 3 feet as contended by him, he had no right to use the pathway as of right. This is not a fit case for limiting the claim to protect the right of the plaintiff in exercise of the discretion vested on the court. The alternative plea of limiting the claim made by the learned counsel for the appellants are unsustainable. The substantial questions of law are answered as above.
Resultantly, this Regular Second Appeal is dismissed. There will be no order as to costs. Pending applications, if any, stand closed. Sd/- N.ANIL KUMAR, JUDGE skj