A.C. Joseph alias Babu v. Benny John and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA THURSDAY, THE 22[ND] DAY OF DECEMBER 2022 / 1ST POUSHA, 1944 RSA NO. 1072 OF 2012** **AGAINST THE JUDGMENT AND DECREE IN A.S. NO.47/2009 DATED 29.02.2012 OF 1ST ADDITIONAL DISTRICT COURT, ERNAKULAM AGAINST THE JUDGMENT AND DECREE IN O.S. NO.646/2006 DATED 06.09.2008 OF IIND ADDITIONAL MUNSIFF'S COURT, ERNAKULAM APPELLANT/APPELLANT/PLAINTIFF:** A.C.JOSEPH ALIAS BABU, AGED 65 YEARS S/O.CHACKO, KOCHAPPALLY (ANAMTHURUTHIL), CC NO.28, CHILAVANNOOR, KADAVANTHARA, KOCHI-20. BY ADVS. SRI.A.BALAGOPALAN SRI.M.S.IMTHIYAZ AHAMMED SRI.A.RAJAGOPALAN SRI.K.SANEESH KUMAR ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 BENNY JOHN AGED 50 YEARS ANAMTHURUTHU HOUSE, PONNURUNNI EAST, KRIPALAYAM ROAD, VYTTILA P.O., KOCHI-19. 2 TESSY JOSEPH W/O.BENNY JOHN, KOTTARPATHIL HOUSE, MEENACHIL TALUK, KURUVILANGADU VILLAGE. 3 DENNIS LOUIS CHERUPUNATHIL HOUSE, YUVAJANA SAMAJ ROAD, NEAR KOYITHARA BRIDGE, KADAVANTHARA, KOCHI-20. 4 ADDL.R4. SOBHANA PILLAI, AGED 59 YEARS, W/O.N.R.PILLAI, RAJ NIVAS, DOOR NO.37/1042 A, CHETTICHIRA, VYTTILA P.O., PIN-682 019. R.S.A. NO.1072 OF 2012 2 5 ADDL.R5. SAJIV RADHAKRISHNA PILLAI, AGED 32 YEARS, S/O.N.R.PILLAI, RAJ NIVAS, DOOR NO.37/1042 A, CHETTICHIRA, VYTTILA P.O., PIN-682 019. 6 ADDL.R6. MANJU JOHN, AGED 42 YEARS, ALUMMOOTTIL HOUSE, 28/3060, CHERUPARAMBATH ROAD, 2ND CROSS, KADAVANTHARA P.O., PIN-682 020. (ADDITIONAL RESPONDENTS 4 TO 6 ARE IMPLEADED AS PER THE ORDER DATED 08.07.2014 IN IA.1514/2014). 7 ADDL.R7. FRANCIS JOSEPH FATHERS NAME NOT KNOWN TO THE APPELLANT, AGE NOT KNOWN,ROSE VILLAGE,PERUMANNOOR, ERNAKULAM, KOCHI-15. (ADDITIONAL RESPONDENT 7 ADDED TO THE CAUSE TITLE AS PER ORDER DATED 29.07.2021 IN I.A. NO.8/2021) BY ADVS. P.K.RAVI SANKAR - R7 SRI.S.SACHITHANANDA PAI – R1, R2, R4 TO R6 **THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 13.12.2022, THE COURT ON 22.12.2022 DELIVERED THE FOLLOWING:** R.S.A. NO.1072 OF 2012 3 ## **JUDGMENT** Dated this the 22[nd] day of December, 2022 This appeal has been filed against the judgment and decree in A.S. No.47/2009 on the file of 1[st] Additional District Court, Ernakulam, which in turn arise out of the judgment and decree in O.S. No.646/2006 on the file of Munsiff’s Court, Ernakulam. 2. Plaintiff is the appellant. The suit is one for declaration and consequential injunction. (Parties would hereafter be referred as per their status before the trial court). Plaint schedule item No.1 property belonged to late Varghese and Chacko and they partitioned the property as per deed No.931/1965 of Sub Registry Office, Ernakulam. As per the registered Will No.6/1990 plaintiff’s father Chacko bequeathed his property to the plaintiff. Father of the plaintiff died on 28.12.1990 and thereafter the plaintiff became the absolute R.S.A. NO.1072 OF 2012 4 owner of the plaint item No.1 property, which is comprised in survey No.359/1 instead of 586/1 referred in the title deed. Plaintiff and his predecessor were enjoying the plaint item No.2 path way for ingress and egress to plaint schedule item No.1 property from Kochappilly road on the eastern side. The open, public, notorious and uninterrupted enjoyment of plaint schedule item No.2 as of right ripened into a full fledged right of easement by prescription. There is no other way to plaint item No.1. When there was attempt on the part of the defendants to destroy the way by putting up the compound wall across plaint item No.2, the suit was filed. 3. Defendants filed written statement contending that plaintiff has no right of easement through plaint item No.2 path way. The property on the eastern side of plaint item No.1 is 22 cents of land, through which the plaintiff is claiming easement by prescription and necessity and it was never used by the plaintiff or his predecessors in interest. The plaintiff’s grandfather’s property is on the south and it is not extended upto Kochappilly road and it is the ingress and egress to plaint R.S.A. NO.1072 OF 2012 5 item No.1 property. The property on the south of plaint item No.1 belongs to the plaintiff’s uncle, who obtained the same from his father Thomas and there is a road on the southern side of that property which goes to Kochappilly road. The plaint schedule property belongs to the plaintiff’s wife. 4. Subsequently additional defendants 2 and 3 were impleaded and they also filed written statement contending that item No.2 path way is not in existence. The right of the plaintiff through the property of the defendants is also stoutly denied. 5. PW1 examined. Ext.A1 and Ext.A2 marked from the side of the plaintiff. The Commissioner was examined as court witness. Exts.C1 and C2 were also marked. 6. On evaluating the facts, circumstance and evidence adduced, the trial court found that plaint schedule property is not identified, since the plaintiff failed to produce any document to prove the survey number of item No.1 as 586/1 of Elamkulam village. It is also found that there is no severance of tenements of plaint item No.1 and 2 and hence R.S.A. NO.1072 OF 2012 6 plaintiff cannot claim right of easement by necessity. It is further found that the use of the way for a period of 20 years is not proved. Hence, the claim for declaration of right of easement by prescription or necessity was found against and consequently the prayer for injunction was also refused and the suit was dismissed. Against which the plaintiff filed the appeal and the 1[st] appellate court found that plaintiff could establish his occupation of plaint item No.1 property and there is no necessity to enter into a finding with regard to title of item No.1 property in the nature of the suit. But it is further found that since the severance of tenements is not proved the plaintiff is not entitled for any right of easement by necessity and with regard to the claim of right of prescription it has been found that the plaintiff could not prove the prescribed right of easement by use for a period of 20 years openly, uninterruptedly as of right over plaint item No.2 property and accordingly the appeal was dismissed. 7. Aggrieved by the same the appellant approaches this Court in this second appeal. R.S.A. NO.1072 OF 2012 7 ## 8. The appeal was admitted on the following substantial questions of law: _(i) Is it necessary to plead the details of severance of tenements and the time of severance when there is pleadings regarding severance of tenements and there is no denial of the said pleading?_ _(ii) Was it correct for the courts below to non-suit the plaintiff who claimed easement of necessity by pleading severance of tenements and evidence regarding non-availability of alternate pathway on the ground of lack of specific pleading regarding the nature of severance of tenement?_ _(iii) Was it legal for the lower appellate court to nonsuit the plaintiff in a claim of easement by prescription by relying on a solitary sentence in his deposition completely overlooking the remaining part of his evidence with respect to the claim of easement by prescription?_ _(iv) Was the lower appellate court correct in rejecting the commission report on the ground that the same was an ex-parte report and non-suit the plaintiff especially when the contesting defendants did not file any objection to the said report?_ 9. Notice was issued to the respondents. Respondents R.S.A. NO.1072 OF 2012 8 appeared through counsel. Lower court records called for. Both sides were heard. 10. At the time of argument the claim of right of easement by necessity is not pressed. The argument of the learned counsel was only with respect to the claim of easement by prescription. According to the learned counsel, the plaintiff was examined as PW1; the Commissioner was examined as CW1; Commissioner's reports were also marked as Exts.C1 and C2.In chief examination plaintiff categorically stated about the long continuous open use of plaint item No.2 path way by the plaintiff and the predecessors and no question was put challenging the evidence of PW1. He would also contend that though the trial court found that plaintiff failed to prove his title over plaint item No.1, that was varied by the 1[st] appellate court by finding that in a suit of this nature question regarding proof of title is not much relevant and it has been found that he is in occupation and is entitled to claim right of easement through the defendants property. He would also contend that no evidence whatsoever has been adduced from R.S.A. NO.1072 OF 2012 9 the side of the defendants and there is no oath against oath and hence the courts below went wrong in dismissing the suit filed by the plaintiff. 11. On the other hand the learned counsel for the defendants would vehemently contend that the plaintiff's property originally belonged to his father and he obtained the same as per Ext.A1 partition deed and Ext.A2 Will. The property on the south of plaint item No.1 belongs to Kunjuvareeth, who obtained the same as per Ext.A1 partition deed and on the south of the property of Kunjuvareeth there is a road. So according to him, there was an access to the properties covered by Ext.A1 to the southern public road. So the contention of the plaintiff that he has no other means of access to the plaint schedule property is not sustainable. He would also contend that the evidence adduced by the plaintiff as PW1 itself would go to show that he could not establish his long continuous use of plaint item No.2 path way for a period of 20 years. It has also come out from his evidence that in the place of Kochappilly road, earlier there was a ridge and it has R.S.A. NO.1072 OF 2012 10 been transformed into the road within a period of 12 years, whereas the width of plaint item No.2 claimed by the plaintiff is 5 metres. He would also contend that the Commissioner's report also would reveal that the item No.2 was not lying demarcated and the Commissioner only noted item No.2 in Ext.C2 plan as pointed out by the plaintiff and the neighboring people. According to him plaintiff failed to prove the long continuous uninterrupted open use of plaint item No.2 by the plaintiff so as to claim a right of easement by prescription over the same. 12. The right of easement by prescription, no doubt is a very precarious right which a dominant owner claims through the property of the servient owner. In order to establish the same, there should be clear and cogent evidence to prove long peaceful open uninterrupted use of the way as of right as an easement without interruption for 20 years. As per Section 15, the period of 20 years shall be taken to be period ending within two years next before the institution of the suit. 13. Being a precarious right which a dominant owner R.S.A. NO.1072 OF 2012 11 claims through the property of the servient owner there should be clear and cogent evidence to prove all the ingredients of long, continuous, open and uninterrupted use of way as an easement for 20 years in order to claim the right. 14. In **Krishna Narain Agarwal v. Carlton Hotel Private Ltd. [AIR 1969 SC 1105]** Apex court held that to establish the claim under Section 15 of the Easements Act, continuous user for 20 years as of right to do the act complained of in assertion of title feasibly and openly must be made out. It is also held that enjoyment of the act complained of as of right contemplated by Section 15 of the Indian Easement Act is the same requirement of user nee-precarious of English common law and it must not be permissive. 15. **Badariya Madrassa Committee v. Antony Robert [2006 2 KLT 636]** in para No.8 the seven ingredients to be established for claiming right of easement under Section 15 as held in **Krishnan v. Nanukuttan ILR [1986 (1) Ker 526]** has been described ie. “(1) There must be pre-existing easement which must have been enjoyed by R.S.A. NO.1072 OF 2012 12 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 right must have been enjoyed openly; (6) the enjoyment must have been for a period of twenty years and (7) the enjoyment for 20 years must have been without interruption." 16. The main contention of the learned counsel for the plaintiff is that during chief examination, PW1 clearly sworn in Para No.3 about open uninterrupted use of item No.2 way by the plaintiff and his predecessor for the last more than 50 years and there by acquired right of easement by prescription as well as necessity. But in cross examination no specific question was put challenging his evidence so tendered during chief examination. But during cross examination he would admit that on the eastern side of the defendant's property is Kochappilly road and it has come for about 20 years and before 20 years there was no road. There was only a ridge and that ridge has been transformed to road within 12 years. So, if at all the road came into existence only within 12 years and R.S.A. NO.1072 OF 2012 13 hence it is highly improbable that this way with a width of 5 meters would be in use of the plaintiff for the last more than 50 years as alleged. So also the Commissioner's report and also the commissioner during cross examination admitted that the way alleged to be passing through the defendants' property is not in a level. The Commissioner also would depose that the way noted in the sketch is reported as told by the neighbors and the width of the way has not been noted and the width of the way reported as 5 meters as told by the plaintiff and it is reported that lorries can be taken in and out through the way as told by the plaintiff. It is also to be noted that, according to the Commissioner as well as as per the sketch prepared by the Commissioner, on the western side of the defendants’ property is a canal and its width is 3.8 meters. Though the learned counsel for the appellant/plaintiff at the time of argument would contend that the canal noted on the eastern side of the defendants' property is not correct and actually the canal is situated on the western side of the property,the sketch prepared by the Commissioner as well as R.S.A. NO.1072 OF 2012 14 the evidence of the commissioner is otherwise. So, across the canal there is nothing shown as access from plaint item No.2 to plaint item No.1. 18. So also apart from the evidence of PW1 the plaintiff, there is no independent evidence to prove his long continuous uninterrupted open use of item No.2 way as of right as an easement for the last 20 years. It is true that the learned counsel for the plaintiff would contend that the defendant did not mount the box and adduced any evidence to controvert the evidence of PW1. But it is the plaintiff who approaches the court claiming right of easement by prescription as well as necessity (which was later given up) over the property of the defendants. So the burden is upon the plaintiff himself as per Section 101 and 102 of the Indian Evidence Act to prove the same. So the absence of evidence on the part of the defendant is not at all a reason to grant the relief to the plaintiff, who could not establish the right claimed by adducing any convincing, cogent evidence. 19. Learned counsel for the plaintiff would also argue R.S.A. NO.1072 OF 2012 15 that since there is no way to plaint item No.1 other than plaint item No.2 the plaintiff may not be non-suited and court can mould the relief by providing a path way at least for ingress and egress. But it has already been found that the plaintiff obtained item No.1 property from his father and father in turn obtained the property as per Ext.A1 partition deed in which share of plaintiff's father's brother has got direct access on the southern side to a public road. So without utilising that facility or asserting that right of way on severance among the heirs there is no justification in claiming a right over the property of a stranger without establishing any right as per law for a path way . Since the plaintiff could not establish a right of easement by prescription through the defendant's property, legally this Court also is not in a position to mould the relief and grant a path way of lesser width through the defendants’ property. So, on a close evaluation of judgment and decree passed by the courts below, I am of the considered view that the courts below had concurrently found that the plaintiff could not R.S.A. NO.1072 OF 2012 16 establish long continuous uninterrupted use of plaint item No.2 path way for 20 years in order to establish right of easement by prescription over item No.2. So the suit for declaration and consequential injunction has been dismissed by the courts below . I do not find any reason whatsoever to interfere with the judgment and decree passed by the courts below. In the result, appeal is found to be devoid of any merit and hence dismissed. **Sd/-** **M.R.ANITHA** **JUDGE** SMF