Agness P.J. and others v. Joseph, S/o Mathai

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 19TH DAY OF APRIL 2016/30TH CHAITHRA, 1938** ## **RSA.No. 303 of 2016 (C)** **----------------------AGAINST THE JUDGMENT IN AS. NO.66/2014 OF ADDITIONAL DISTRICT COURT - II, ALAPPUZHA DATED 10/02/2016. AGAINST THE JUDGMENT IN OS. NO.70/2011 OF SUB COURT, ALAPPUZHA DATED 30/06/2014.** **......** ## **APPELLANTS/RESPONDENTS/DEFENDANTS 1 TO 8:** **-----------------------------------------------------------------------------** **1. AGNESS P.J., W/O. LATE PETER, AGED 66 YEARS, CHERLLATHU HOUSE, CHETTIKAD MURI, PATHIRAPPALLY VILLAGE, PATHIRAPPALLY P.O., ALAPPUZHA.** **2. ANNAMMA P., D/O. PETER, AGED 48 YEARS, CHERLLATHU HOUSE, CHETTIKAD MURI, PATHIRAPPALLY VILLAGE, PATHIRAPPALLY P.O., ALAPPUZHA.** **3. C.P. LAZAR, S/O. PETER, AGED 47 YEARS, CHERLLATHU HOUSE, CHETTIKAD MURI, PATHIRAPPALLY VILLAGE, PATHIRAPPALLY P.O., ALAPPUZHA.** **4. C.P. JOSEPH, S/O. PETER, AGED 44 YEARS, CHERLLATHU HOUSE, CHETTIKAD MURI, PATHIRAPPALLY VILLAGE, PATHIRAPPALLY P.O., ALAPPUZHA.** **5. C.P. BINU, S/O. PETER, AGED 39 YEARS, CHERLLATHU HOUSE, CHETTIKAD MURI, PATHIRAPPALLY VILLAGE, PATHIRAPPALLY P.O., ALAPPUZHA.** **6. BABU, S/O. PETER, AGED 34 YEARS, CHERLLATHU HOUSE, CHETTIKAD MURI, PATHIRAPPALLY VILLAGE, PATHIRAPPALLY P.O., ALAPPUZHA.** **7. BABY, S/O. PETER, AGED 34 YEARS, CHERLLATHU HOUSE, CHETTIKAD MURI, PATHIRAPPALLY VILLAGE, PATHIRAPPALLY P.O., ALAPPUZHA.** **RSA.No. 303 of 2016** **8. BINDU, D/O. AGNESS, AGED 31 YEARS, CHERLLATHU HOUSE, CHETTIKAD MURI, PATHIRAPPALLY VILLAGE, PATHIRAPPALLY P.O., ALAPPUZHA.** **BY SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE. ADV. SRI.MILLU DANDAPANI.** ## **RESPONDENTS/APPELLANT/PLAINTIFF:** **------------------------------------------------------------** **JOSEPH, S/O. MATHAI, AGED 54 YEARS, RESIDING AT VALIYAVEEDU, CHETTIKAD MURI, PATHIRAPALLY VILLAGE, PATHIRAPALLY P.O., ALAPPUZHA-688 521.** **BY ADVS. SRI.K.S.HARIHARAPUTHRAN, SRI.GEORGE MATHEW, SRI.SUNIL KUMAR A.G, SRI.DIPU JAMES.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04-04-2016, THE COURT ON 19/04/2016 DELIVERED THE FOLLOWING:** rs. ## **P.B.SURESH KUMAR, J.** ## **----------------------------------------------R.S.A. No.303 of 2016 ----------------------------------------------Dated 19[th] April, 2016.** ## **J U D G M E N T** The defendants in a suit for declaration and injunction are the appellants in this second appeal. 2. The plaint schedule item No.1 property belongs to the plaintiff. The said property was originally obtained by the plaintiff, his mother and sister as per Ext.A1 sale deed of the year 1975. Later, the mother and sister of the plaintiff released their rights over the property in favour of the plaintiff as per Ext.A2 release deed of the year 2004. The property on the south of the plaint schedule item No.1 property belongs to the defendants. There is a panchayat road on the south of the property of the defendants. According to the plaintiff, RSA No.303 of 2016 2 there exists a pathway having a width of 8 ft. and a length of 35 mts. connecting the south western corner of the plaint schedule item No.1 property and the southern panchayat road. The said pathway is described in the plaint schedule item No.2. The case of the plaintiff is that he has been using the plaint schedule item No.2 pathway ever since the date of Ext.A1 sale deed continuously, uninterruptedly, peacefully, openly and as of right and as such he has prescribed a right of easement over the said pathway. It is alleged by the plaintiff that on 13/3/2011, the defendants have attempted to cause obstructions to the user of the plaint schedule item No.2 pathway by the plaintiff. The suit was filed in the circumstances, seeking a decree declaring the right of easement by prescription of the plaintiff over the plaint schedule item No.2 pathway and for a decree of permanent prohibitory injunction restraining the defendants from causing obstructions to RSA No.303 of 2016 3 the plaintiff in the matter of using the plaint schedule item No.2 pathway. The defendants resisted the suit by filing a written statement. The contention raised by the defendants in the written statement filed by them was that the access to the plaint schedule item No.1 property is through the property on the east of the same which is abutting the National Highway on its east and that the plaintiff has been using their property described as plaint schedule item No.2 as permitted by them since 2004 when the plaintiff has constructed a residential house in his property. In other words, the case set up by the defendants was that the plaintiff has no right to use any portion of the property of the defendants for access to the plaint schedule item No.1 property. 3. The trial court noticed that the plaint schedule item No.2 pathway passes through the middle of the property of the defendants. It also noticed that there RSA No.303 of 2016 4 exists an aged compound wall separating the property of the defendants from the southern panchayat road. It further noticed that the building in the plaint schedule item No.1 property was constructed only in the year 2004. In the circumstances, the trial court found that the plaintiff has not established that the user of the plaint schedule item No.2 pathway by him was as an easement and that the said user can only be construed as permissive. Consequently, the suit was dismissed. The plaintiff took up the matter in appeal. The appellate court however, reversed the decision of the trial court and decreed the suit holding that merely for the reason that the property of the defendant is protected by a compound wall on its south, it cannot be said that the plaintiff cannot claim a right of easement through a portion of the said property. The appellate court also held that the existence of a building in the dominant tenement is not _sine qua non_ for RSA No.303 of 2016 5 claiming a right of easement by prescription. The defendants are aggrieved by the said decision of the appellate court and hence this second appeal. 4. Heard the learned Senior Counsel for the appellants/defendants as also the learned counsel for the respondent/plaintiff. 5. The learned Senior Counsel for the appellants contended at the outset that the suit is not maintainable as the servient tenement over which the right of easement is claimed is not scheduled in the plaint. It was pointed out by the learned counsel that if one reads the plaint, it gives an impression that the plaint schedule item No.2 pathway is claimed through the western boundary of the property of the defendants, whereas, the plaint schedule item No.2 pathway runs through the middle of the property. According to the learned counsel, an exact idea of the servient tenement is required for the court to decide RSA No.303 of 2016 6 the question whether the exercise of the right of easement by the plaintiff is least onerous to the servient owner also, as provided for under Section 22 of the Indian Easements Act, 1882. She also contended, after taking me through the decisions of the courts below, that the finding of the trial court that the plaintiff has not established a right of easement by prescription over the plaint schedule item No.2 pathway is not based solely on the grounds that there exists a compound wall for the property of the defendants and that the building of the plaintiff has come into existence only in the year 2004. According to the learned Senior Counsel, they were only two of the several circumstances relied on by the trial court to hold that the plaintiff has not established the right claimed by him. It was contended by the learned Senior Counsel that an appraisal of the materials on record would only indicate that the user of the property of the defendants by the RSA No.303 of 2016 7 plaintiff for access to the plaint schedule item No.1 property is only permissive. The learned Senior Counsel for the appellants also pointed out that a perusal of the impugned judgment would indicate that the reason for the appellate court to reverse the decision of the trial court is that the plaintiff has at present no other access to his property. According to the learned Senior Counsel, in so far as the plaintiff is claiming a right of easement by prescription, the existence or otherwise of an alternate pathway is not relevant at all. It was also pointed out by the learned Senior Counsel that the plaintiff had an access to the National Highway on the east through the property lying on the immediate east of the plaint schedule item No.1 property and the suit was instituted after closing the said access. 6. Per contra, the learned counsel for the respondent contended that the question whether the RSA No.303 of 2016 8 plaintiff has established a right of easement by prescription over the plaint schedule item No.2 pathway is a pure question of fact and since the appellate court found that the plaintiff has established the right of easement claimed by them, the said finding cannot be interfered with by this Court in a proceedings under Section 100 of the Code of Civil Procedure. 7. In the light of the submissions made by the learned counsel for the parties, the following questions are framed for decision in the second appeal. (i) Is the suit claiming a declaration in respect of the easement right of the plaintiff over a portion of the property of the defendants maintainable in the absence of the particulars of the property of the defendants in the plaint ? (ii) Was the appellate court, on facts, justified in reversing the finding of the trial court RSA No.303 of 2016 9 that the plaintiff has not established the right of easement claimed by him? 8. Question No.(i) : A right of easement presupposes the existence of a dominant tenement and a servient tenement. The lie, nature and identity of the property of the defendants are relevant in the context of deciding the issue whether the plaintiff has established a right of easement over the property of the defendants. As rightly pointed out by the learned Senior Counsel, an exact idea of the servient tenement is required for the court to decide the question whether the exercise of the right of easement by the plaintiff is least onerous to the servient owner also. As such, it is obligatory for the plaintiff in a suit for declaration of easement right to schedule the servient tenement also in the suit [See **Paul** v. **Varghese and another** (2016 (1) KHC 739)]. In the RSA No.303 of 2016 10 instant case, as pointed out by the learned Senior Counsel, the servient tenement, viz., the property of the defendants over which the plaintiff is claiming a right of easement is not scheduled in the suit nor its identity established. In the circumstances, I am constrained to hold that the suit as framed is not maintainable. However, the suit being one instituted in the year 2011, I deem it appropriate to remit the suit to the trial court for fresh disposal, after affording the plaintiff an opportunity to amend the plaint. Question No.(i) is thus answered in favour of the appellants. 9. Question No.(ii) : In the light of my finding on question No.(i), this question does not arise for consideration. 10. In the result, the decisions of the courts below are set aside and the suit is remitted to the trial court for fresh disposal after affording the plaintiff an opportunity to amend the plaint. The parties are also RSA No.303 of 2016 11 permitted to let in additional evidence in support of their respective cases. It is also directed that the interim order, if any, passed by the trial court will continue until the matter is finally decided. The second appeal is allowed as above. All the interlocutory applications in the appeal are closed. Sd/- ## **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)