Annie Gratius and others v. K.C. Babu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **FRIDAY, THE 16TH DAY OF JUNE 2017/26TH JYAISHTA, 1939** **RSA.No. 1343 of 2013 (B) ------------------------** **AGAINST THE JUDGMENT AND DECREE DATED 30-08-2013 IN AS 47/2012 of SUB COURT, KOCHI-5** **AGAINST THE JUDGMENT AND DECREE DATED 22-08-2012 IN OS 311/2011 of ADDITIONAL MUNSIFF COURT, KOCHI** ## **APPELLANTS/APPELLANTS/ PLAINTIFFS:** **-----------------------------------** **1. ANNIE GRATIUS, AGED 53 YEARS, W/O GRATIUS, RESIDING IN VADASSERRY HOUSE, NARAKKAL VILLAGE, NARAKKAL MURI, KOCHI TALUK.** **2. JOSHI, AGED 59 YEARS,** - **S/O RAGHAVAN, RESIDING IN ONAPPARAMBIL HOUSE, HOUSE NO. 13/461, NARAKKAL VILLAGE, NARAKKAL MURI, KOCHI TALUK.** **3. VINU, AGED 40 YEARS,** - **S/O RAGHAVAN, RESIDING IN ONAPPARAMBIL HOUSE, HOUSE NO. 13/462, NARAKKAL VILLAGE, NARAKKAL MURI, KOCHI TALUK.** **4. SAJEEVAN, AGED 45 YEARS,** - **S/O RAGHAVAN, RESIDING IN ONAPPARAMBIL HOUSE, HOUSE NO. 13/463, NARAKKAL VILLAGE, NARAKKAL MURI, KOCHI TALUK.** **BY ADVS.SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN** **RSA.No. 1343 of 2013 (B) ------------------------** ## **RESPONDENT/RESPONDENT/ DEFENDANT:** **---------------------------------** **K.C. BABU, S/O CHAKKUNNI, AGED 51 YEARS, RESIDING AT KOLLANNUR PALACE, KATHRUKKADAVU, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTIRCT-682017.** **BY ADVS. SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.S.NITHIN (ANCHAL)** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/-** ## **B. KEMAL PASHA, J.** ===================== R.S.A.No.1343 of 2013 ===================== _Dated this the 16[th] day of June, 2017_ ## **J U D G M E N T ----------------------** Aggrieved by the concurrent findings entered by the Munsiff’s Court, Kochi, in O.S.No.311 of 2011, followed by those of the Subordinate Judge’s Court, Kochi, in A.S.No. 47 of 2012, the plaintiffs have come up in Second Appeal. 2. The suit is one for declaration of the right of the plaintiffs to make use of plaint E schedule pathway passing through the property of the defendant and for a decree of perpetual injunction restraining the defendant and his agents from causing any obstructions to plaint E schedule pathway by putting up any wall or compound wall. 3. The only case set up by the plaintiffs is that they are making use of plaint E schedule pathway, since they were _kudikIdappukars_ and successors in interest of the _kudikIdappukars_ in respect of their property. Apart from the R.S.A.1343/13 : 2 : said assertion, it has not been pleaded as to what exactly the right being claimed by the plaintiffs over the plaint E schedule pathway. Admittedly, the plaintiffs are claiming a right of way through plaint E schedule pathway allegedly passing through the portions of the property of the defendant. According to the defendant, the plaintiffs are not entitled to make use of any such pathway or any of the portions of his property as a pathway. Both the courts below concurrently found that there are no pleadings enabling the plaintiffs to set up a case of easement by prescription or any other kind of easement and therefore, the plaintiffs are not entitled to the declaration sought for as well as a decree of perpetual injunction sought for. Consequently, the suit was dismissed. 4. The plaintiffs preferred an appeal and the lower appellate court also dismissed the appeal. 5. This appeal has been admitted by this Court on the following substantial questions of law raised in the appeal R.S.A.1343/13 : 3 : memorandum. _“(i) When the user of a pathway is with permission of the owner of the property and that way is used by the successors after the death of the granter of permission for long number of years, is not such user of pathway for long number of years after the death of the grantor, “as of right” on the basis of the principles enunciated in the decision reported in_ _**AIR 1973 Kerala 206 at 207 = 1973 KLT 391** [Joseph v. Joseph]?_ _(ii) On the principle laid down by Supreme Court in the decision reported in_ _**AIR 1965 SC 1147** [The Municipal Board Manolaur v. Madadeoji Maharaj] when the user of a pathway is obstructed, will not a suit for inunction lie even without a claim of the right of user as an easement?_ _(iii) Will omission to mention the rights of user of a pathway in a sale deed be material, if the existence of_ R.S.A.1343/13 : 4 : _pathway is proved otherwise including report and plan of Advocate Commissioner and is not the principle laid down in_ _**1903 (2) Ch. D. 165** (International Tea Stores Co. v. Hobbs);_ _**1968 (1) MLJ 502** [Palanisamy Naiker v. Chinnasamai Naikar] and_ _**1988 (2) KLT 486** (para 8, 10) [Narayanan Nair v. Maniamma Kurien] applicable in such a situation?_ _(iv) When kudikidappu right is granted, is not a pathway absolutely necessary for the convenient enjoyment of the kudikidappu and are the courts below justified in dismissing the suit and appeal on hyper technical grounds?_ _(v) When the object of pleadings is to put the opposite party on the vigil regarding the case of the plaintiff, and where the pleadings, though not specific, does disclose the case that the opposite party is to meet, then would it not be proper for the courts to grant_ R.S.A.1343/13 : 5 : _relief notwithstanding the position in law that the court cannot grant relief to parties on a case for which there was no foundation in the pleadings?”_ 6. All the questions raised in the appeal memorandum can be addressed together in the following manner. This is a case, wherein, the plaintiffs are claiming a right of way over plaint E schedule pathway allegedly passing through the portions of the property of the defendant. The property of the plaintiffs are situated at the western side of the property of the defendant. When the plaintiffs are claiming a right of way through any of the portions of the property of the defendant, they ought to have set up specific legal right in respect of such user. According to the plaintiffs, they were _kudikidappukars_ or successors of transferees of _kudikidappukars_ . The fact that they became _kudikidappukars_ in a particular property does not give rights to them to make use of any other portions of the property of the defendant, as a pathway. When they are claiming R.S.A.1343/13 : 6 : portions of the property of the defendant, as a pathway, they ought to have set up either a specific claim for easement by prescription or any other easement. 7. Strangely enough nothing has been pleaded in the plaint regarding the entitlement of the plaintiffs to have an easement by prescription over any of the portions of the property of the defendant. When easement being a precarious right, which affects another person and right of such another person over his property, the easement by prescription has to be specifically pleaded in unequivocal terms, which should contain all the ingredients to invite easement by prescription. Here, nowhere in the plaint, such a right has been pleaded and therefore, both the courts below were right in non-suiting the plaintiffs. 8. In fact, the above said substantial questions of law do not arise at all, in the absence of any specific pleading in the plaint with regard to any such easement by prescription. Matters being so, there is absolutely nothing to interfere with R.S.A.1343/13 : 7 : the concurrent findings entered by both the courts below. Therefore, this Regular Second Appeal is only to be dismissed and I do so. In the result, this Regular Second Appeal is dismissed. In the nature of this Regular Second Appeal, there is no order as to costs. All the interlocutory applications pending in this Regular Second Appeal are closed. Sd/- **B.KEMAL PASHA,** **JUDGE** DSV/19/6/17 // True Copy // P.A. To Judge