Anandavally and others v. State of Kerala and others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID TUESDAY, THE 20TH DAY OF MARCH 2012/30TH PHALGUNA 1933 ## SA.No. 338 of 2000 (F) ---------------------- AS.146/1994 of ADDL.DISTRICT COURT-I,MAVELIKKARA OS.47/1991 of MUNSIFF COURT, MAVELIKKARA APPELLANTS/APPELLANTS 2 TO 4/LRs OF DECEASED PLAINIFF: --------------------------------------------------------------------- 1. ANANDAVALLY, POIKAYIL, CHERUMUGHA MURI, NOORANADU VILLAGE. 2. NISHA KUMARI, -DO- -DO- 3. ANISH, -DO-DO(APPELLANTS 2 & 3 ARE REPRESENTED BY THEIR GUARDIAN 1ST APPELLANT) - BY SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE. ADV.SRI.P.GOPAL ## RESPONDENTS/RESPONDENTS/DEFENDANTS: --------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, COLLECTORATE, ALAPPUZHA. 2. HEADMASTER AND SECRETARY, P.T.A, GOVT.L.P.SCHOOL, CHERUMUGHA, NOORANADU. BY GOVERNMENT PLEADER SRI.P.P.PADMALAYAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **HARUN-UL-RASHID, J. -----------------------S.A.No.338 Of 2000** ## **---------------------Dated this the 20[th] day of March, 2012.** ## **J U D G M E N T** The substantial questions of law formulated in the appeal are as follows: _I. Whether the courts below are justified in holding that the plaintiff cannot claim easement right by prescription since the land was acquired from the plaintiff's mother only in 1980?_ _II. Is not the plaintiff who is the owner of plaint 'A' schedule property entitled to have easement though the eastern portion of the school compound as his predecessors-in-interest earlier had or whether this right would be lost on account of the acquisition of the three cents lying on the northern side of the plaint 'A' schedule property in 1980?_ _III. Are the courts below justified in assuming that the entire B schedule pathway is over the properties acquired in 1980? Has not this wrong assumption resulted in erroneous conclusions?_ _IV. Whether the courts below are justified in holding that the plaintiff has another pathway without understanding the lie of the property and without adverting to the oral and documentary evidence?_ **::2::** ## **S.A.No.338 Of 2000** 2. The legal representatives of the deceased plaintiff are the appellants. The appeal is directed against the judgment and decree in A.S.No.146/1994 on the file of the Additional District Court, Mavelikkara, arising from O.S.No.47/1991 on the file of the Munsiff Court, Mavelikkara. Suit was filed for permanent prohibitory injunction. The trial court dismissed the suit and was confirmed in appeal. Parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 3. Plaintiff's case is that he is in possession and enjoyment of plaint 'A' schedule property and the hut situated therein wherein he is residing with his family. Government L.P.School, Cherumugha is situated on the north of plaint 'A' schedule property. On the further north lies the PandalamMavelikara public road. The properties of the school also lies on the south-west of plaint 'A' schedule property. According to the plaintiff, the pathway lying north-south described as 'B' schedule is situated on the eastern portion of the school property and the said pathway is used by the plaintiff and his family for the ingress and egress to plaint 'A' schedule item to the public road that lies on the north of the school compound. It is averred in the plaint **::3::** ## **S.A.No.338 Of 2000** that the plaintiff and his predecessors were using the plaint 'B' schedule pathway as of right uninterruptedly, openly, continuously and peacefully as of easement for the last more than 80 years. It is pleaded that the plaintiff is having easement of necessity and easement by prescription over plaint 'B' schedule pathway. The suit was filed alleging that the 2[nd] defendant started construction of a wall on the north-eastern portion of the school property, obstructing plaint 'B' schedule pathway. 4. The 1[st] defendant is the State of Kerala and the 2[nd] defendant is the Head Master, Government L.P.School, Cherumugha. Defendants filed a joint written statement. They denied the plaint averments and prayed for dismissal of the suit. It is inter alia stated in the written statement that on the southern side of the Mavelikara-Pandalam road, in front of the school, there was an old barbed wire fencing which got damaged and it was replaced by a compound wall constructed by the joint effort of the Government and the Parent Teachers Association. They denied the existence of plaint 'B' schedule pathway on the eastern side of the school property. According to the defendants, originally the school was having only 16 cents of property and **::4::** ## **S.A.No.338 Of 2000** subsequently 40 cents of property was acquired from the plaintiff and it was delivered over to the school on 18.3.1980, that in 1990 steps were constructed in the property lying in higher level and from that time the plaintiff is using the same as pathway. It is also stated that the plaintiff had been using the Panchayath road which is situated on the southern side of plaint 'A' schedule property till 1990. 5. Plaintiff adduced oral and documentary evidence. PWs 1 & 2 were examined and Exts.A1 to A5 were marked. On the side of the defendants, DW1 was examined. Exts.C1 & C2, commission report and Mahazar respectively, were also marked. 6. It is reported by the commissioner in Ext.C1 that plaint 'B' schedule pathway having a width of 4 feet and length of 79 feet is in existence on the eastern extremity of school property. The commissioner reported that the pathway is more than 45 years old. PWs 1 & 2 testified before the court that plaint 'B' schedule pathway is in existence at the eastern extremity of the school property and that the plaintiff and his predecessors have been using the same as access to plaint 'A' schedule property uninterruptedly, peacefully and continuously as **::5::** ## **S.A.No.338 Of 2000** of right for the last more than 45 years. The trial court by placing reliance on oral evidence of PWs 1 & 2, DW1 and Exts.C1 & C2 report and mahazar held that plaint 'B' schedule pathway is in existence as described in the plaint. At the time of inspection, the commissioner noticed that plaint 'B' schedule pathway is in existence without any obstruction. The trial court observed that the 3 cents of land belonging to the plaintiff lying on the immediate north of plaint 'A' schedule property was acquired in the year 1980, that there is nothing in evidence to show that the acquisition was subject to the easement by necessity over plaint 'B' schedule pathway and that at the time of acquisition the plaintiff has not raised any claim of easement right over plaint 'B' schedule pathway. Therefore, the trial court concluded that at the time of acquisition, the easement right of plaintiff and his family members was not reserved and therefore, the plaintiff cannot acquire easement by necessity or by prescription. Stating the above said reasons the trial court dismissed the suit. 7. The lower appellate court found that plaint 'B' schedule pathway is passing through the property acquired from the mother of the plaintiff, that there is no evidence to hold that the **::6::** ## **S.A.No.338 Of 2000** acquisition was subject to the right of easement of the plaintiff and that there is no question of easement over that portion. The court also observed that the suit was filed after 11 years of acquisition and therefore, the plaintiff cannot claim easement by prescription over plaint 'B' schedule pathway. The appellate court also on the basis of the boundary description in Ext.A1 gift deed held that there is an alternate pathway leading to plaint 'A' schedule property and therefore, the plaintiff is not entitled to get the right of easement by necessity over plaint 'B' schedule pathway. 8. I have already noticed that the commissioner in Ext.C1 reported the existence and age of plaint 'B' schedule pathway. It is reported that the pathway is more than 45 years old. PWs 1 & 2 testified before the court that the pathway is in existence at the eastern boundary of the school property and the plaintiff and his predecessors are using the same as access to plaint 'A' schedule property as of right for the last more than 45 years. The claim of the plaintiff for declaration of right of easement by prescription was negatived mainly stating that there is no evidence to show that the acquisition was subject to the **::7::** ## **S.A.No.338 Of 2000** easement right of the plaintiff and that easement right of the plaintiff and his family members was not reserved and therefore, the plaintiff cannot acquire easement of necessity over that portion. The learned counsel for the appellant seriously attacked the said contentions. It is contended that the plaintiff has proved the fact that he was residing in the 9 cents made up of 6 cent belonging to the plaintiff and three cents belonging to his mother were always using plaint 'B' schedule pathway for getting access to the main road on the northern side. Therefore, it is pointed out that the acquisition of three cents of land on the northern side has nothing to do with the exercise of right of way by the plaintiff and his family members. It is pointed out that the courts below wrongly assumed that plaint 'B' schedule pathway also form portion of the land acquired in 1980. The pathway, according to the appellant, is passing through the eastern side of the school compound, which is on the northern side of the property acquired from the plaintiff's mother. It is pointed out that the original school compound was only 16 cents in extent, that it is through the eastern side of the said 16 cents, the plaintiff and his predecessors-in-interest were having access to **::8::** ## **S.A.No.338 Of 2000** the road on the northern side. According to the appellants, after the acquisition of 3 cents from the plaintiff's mother in 1980, the eastern portion of the said 3 cents also was being used as part of the pathway. This fact was not properly considered by the courts below. It is also pointed out that the finding of the lower appellate court that the plaintiff has got another pathway leading to the Panchayath road on the eastern side of the school compound is wrong and was passed as a result of the gross misunderstanding of the lie of the property. It is submitted that the pathway referred to as 'edavazhi' in Exts.A1 & A2 is on the eastern side of the property of five owners and there is no access to plaint 'A' schedule property from the 'edavazhi' referred to in Exts.A1 & A2. The appellants submit that the 3 cents acquired is a portion of the residential compound of the plaintiff and that the acquisition of the 3 cents cannot affect the plaintiff's right to use the pathway acquired by prescription. It is submitted that the courts below did not appreciated the fact that after acquisition of the said three cents also the plaintiff is using the very same pathway for access to the northern main road. **::9::** ## **S.A.No.338 Of 2000** 9. The learned counsel submits that the right of passage by way of necessity enjoyed by the plaintiff over the acquired land would not be extinguished by the acquisition. The learned counsel relied on the decision of the Apex Court in _**H.P. State**_ _**Electricity Board and others v. Shiv K.Sharma and others**_ (AIR 2005 SC 954). 10. In the light of the above contentions raised on the basis of the evidence on record, this Court is of the view that the matter requires reconsideration. The facts, circumstances and evidence will have to be re-appreciated in the context of the submissions made by the appellants. In the result, the appeal is allowed. The judgment and decree passed by the courts below are set aside. The case is remanded to the court below for denovo consideration. The trial court shall consider and dispose of the suit afresh within a period of nine months from the date of receipt of a copy of this judgment. Parties are at liberty to adduce additional evidence, if any, if so advised. No order as to costs. **HARUN-UL-RASHID, Judge.** bkn/-