Balakrishnan v. Nottath Valappil Kunhimol and Bhavani

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945 RSA NO. 136 OF 2024 ``` ``` AGAINST THE DECREE AND JUDGMENT DATED 30.11.2023 IN A.S.NO.92 OF 2017 OF ADDITIONAL DISTRICT COURT, TIRUR ARISING OUT OF THE DECREE AND JUDGMENT DATED 30.06.2011 IN O.S.NO.229 OF 2007 OF MUNSIFF MAGISTRATE COURT,PONNANI. ``` ## **`APPELLANT/1ST APPELLANT/1ST PLAINTIFF:`** ``` BALAKRISHNAN AGED 64 YEARS ``` ``` S/O ANTHURA VALAPPPIL PARANGU, PONANNI TALUK, PALLIKKARA AMSOM DESOM , PO PALLIKKARA, PIN - 679575 ``` ``` BY ADVS. P.CHANDRASEKHAR C.RAMAN ANOOP KRISHNA REGIMOL M.K. ANAND SANKAR ``` ``` JENNY THANKAM ``` ## **`RESPONDENTS/RESPONDENT & 2ND APPELLANT/DEFENDANT & 2ND PLAINTIFF:`** ``` 1NOTTATH VALAPPIL KUNHIMOL AGED 59 YEARS W/O KUNHIPPA, PALLIKKARA AMSOM DESOM, PONANNI TALUK, PALLIKKARA PO , MALAPPURAM DISTRICT, PIN - 679575 ``` ``` 2BHAVANI ``` ``` AGED 55 YEARS ``` ``` W/O. BALAKRISHNAN, ANTHURA VALAPPIL, PALLIKKARA AMSOM DESOM, PONANNI TALUK, PALLIKKARA PO, MALAPPURAM DISTRICT, PIN - 679575 ``` ``` THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` RSA NO. 136 OF 2024 2 ``` ## **JUDGMENT** Dated this the 13[th] day of March, 2024 First plaintiff in O.S.No.229/2007 on the files of the Munsiff Court, Ponnani, is the appellant herein and he assails decree and judgment in the above case, as confirmed in A.S.No.92/2017 by the Additional District Judge, Tirur. 2. Heard the learned counsel for the appellant/1[st] plaintiff on admission. 3. I have perused the judgments of the trial court as well as the appellate court. 4. In this case, plaintiffs filed suit claiming easement by prescription over plaint B schedule pathway, asserting right of easement by prescription. The other side denied the same. 5. The trial court recorded evidence. PW1 was examined and Exts.A1 to A5 were marked on the side of the plaintiffs. CW1 was examined and Exts.C1 to C4 were marked as court exhibits. Finally, the trial court dismissed the suit, holding that the plaintiffs neither pleaded nor proved that they ``` RSA NO. 136 OF 2024 3 ``` had acquired right of easement by prescription over plaint B schedule pathway. In paragraph No.12 of the trial court judgment, the learned Munsiff observed as under: _12. The plaintiffs neither pleaded nor proved that they have acquired right of easement by prescription over plaint B schedule. Admittedly 1[st] plaintiff has purchased property from Krishnan. Krishnan has direct access to Tippu Nagar Road on the Northern side of the property. Krishnan who is the predecessor in interest has no right of way through the plaint B schedule property. So, the plaintiffs cannot claim a right which his predecessor in interest did not have. If a person sues for establishing a right of easement over a pathway, he has to plead and prove that he enjoyed the same as of right for a period of 20 consecutive years within 2 years next before the institution of the suit. This is an essential condition that the right should have been enjoyed within 2 years next before the institution of the suit. No evidence has been adduced to prove the same._ 6. Reading the trial court judgment, it could be seen that the required period of 20 years not completed by the plaintiffs, who allege use of plaint B schedule pathway by asserting easement by prescription. The first appellate court ``` RSA NO. 136 OF 2024 4 ``` also dismissed the suit, holding so. Thus, this is a case, where plaintiffs asserted right of easement by prescription provided under Section 15 of the Indian Easements Act, 1882. 7. Insofar as right of easement by prescription, law is well settled. In the decision of this Court in **Mercy** v. **Agnus** **Maria E.J.** reported in **[2023 KHC 828]** , wherein this Court set out essential ingredients to be complied under Section 15 of the Indian Easements Act, 1882. The same are extracted in paragraph No.15 of the above judgment as under: - _"15. While precising the mandate of S.15 of the Easement Act, the following ingredients must be pleaded and proved:_ - _(1) There must be pre-existing easement which must have been enjoyed by the dominant owner;_ - _(2) the enjoyment must be peaceable;_ - _(3) the enjoyment must be an easement;_ - _(4) the enjoyment must be as of right;_ - _(5) the right must be enjoyed openly;_ - _(6) the enjoyment must have been for a period of twenty years;_ - _(7) the enjoyment for 20 years must have been without interruption; and_ - _(8) the enjoyment must be openly, peaceable, uninterrupted, as of right, as an easement,_ ``` RSA NO. 136 OF 2024 5 ``` _without interruption for twenty years, for the beneficial enjoyment of the dominant tenement."_ 8. Here, required period to complete 20 years neither pleaded nor proved. Therefore, the right claimed by the plaintiffs, asserting easement by prescription necessarily would fail, as rightly found by the trial court and the appellate court. Thus, the concurrent findings do not require any interference at the hands of this Court. 9. In this case, the learned counsel for the appellant failed to raise any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus: _**“2. Power of Court to direct that the appeal be heard on the question formulated by it.** -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section_ ``` RSA NO. 136 OF 2024 6 ``` _100.”_ 10. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied ``` RSA NO. 136 OF 2024 7 ``` that the case involves such question. 11. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168]** , the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** ._ 12. In a latest decision of the Apex Court in **Government of Kerala v. Joseph** , reported in **[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]** , it was held, after referring **Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179]** (three – Judge Bench) _,_ as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a_ ``` RSA NO. 136 OF 2024 8 ``` _substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court._ 13. The legal position is no more _res-integra_ on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general ``` RSA NO. 136 OF 2024 9 ``` importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 14. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. All interlocutory applications pending in this second appeal, stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- **A. BADHARUDEEN JUDGE** Bb