Beatrice Cleetus and another v. Hilda Nasereth and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945 ``` ## **`RSA NO. 558 OF 2019`** ``` AGAINST THE JUDGMENT AND DECREE IN A.S.NO.141/2015 OF III ADDITIONAL ``` ## **`DISTRICT COURT, KOLLAM`** ``` AGAINST THE JUDGMENT AND DECREE IN O.S.NO.867/2004 OF PRINCIPAL ``` ## **`MUNSIFF’S COURT, KOLLAM`** ## **`APPELLANTS/APPELLANTS/DEFENDANTS:`** - **`1 BEATRICE CLEETUS, AGED 59 YEARS`** - **`W/O.CLEETUS, RESIDING AT LASIJA BHAVAN, PERAYAM CHERRY, MULAVANA VILLAGE, KOLLAM TALUK-691503 (FIRST DEFENDANT).`** - **`2 CLEETUS, AGED 63 YEARS`** - **`S/O.YOHANNAN, RESIDING AT LASIJA BHAVAN, PERAYAM CHERRY, MULAVANA VILLAGE, KOLLAM TALUK-691503 (SECOND DEFENDANT).`** ``` BY ADV S.SREEKUMAR (KOLLAM) ``` ## **`RESPONDENTS/RESPONDENTS/PLAINTIFF:`** - **`1 HILDA NASERATH, AGED 67 YEARS RESIDING AT PUTHUSSERYVILA VEEDU, KUMBALAM CHERRY, MULAVANA VILLAGE, KOLLAM TALUK-691503(FIRST PLAINTIFF).`** - **`2 JACOB, (DIED) LRS RECORDED AGED 59 YEARS`** ``` RESIDING AT PUTHUSSERYVILA VEEDU, KUMBALAM CHERRY, MULAVANA VILLAGE, KOLLAM TALUK-691503(SECOND PLAINTIFF). (RESPONDENTS 1,3 AND 4 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED 2ND RESPONDENT AS PER ORDER DATED 27.11.2023 IN MEMO DATED 27.11.2023.) ``` - **`3 FRANCIS, AGED 64 YEARS`** - **`RESIDING AT PUTHUSSERYVILA VEEDU, KUMBALAM CHERRY, MULAVANA VILLAGE, KOLLAM TALUK-691503(THIRD PLAINTIFF).`** ``` RSA NO. 558 OF 2019 & ``` ``` RSA NO. 560 OF 2019 2 ``` |**`4`**|**`VIVANCIYA,`**| |---|---| ||**`AGED 49 YEARS`**| ||**`RESIDING AT KATTUVILA KADAVIL, KUMBALAM CHERRY,`**| ||**`MULAVANA VILLAGE, KOLLAM TALUK-691502(FOURTH`**| ||**`PLAINTIFF).`**| |**`5`**|**`VALSALAKUMARI,`**| ||**`AGED 46 YEARS`**| ||**`RESIDING AT KATTUVILA KADAVIL VEEDU, KUMBALAM CHERRY,`**| ||**`MULAVANA VILLAGE, KOLLAM TALUK-691502(FIFTH`**| ||**`PLAINTIFF).`**| ||**`R1, R3 TO R5 BY ADV SRI.A.JANI`**| ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29.02.2024, ALONG WITH RSA NO.560 OF 2019, THE COURT ON 6.3.2024 DELIVERED THE FOLLOWING: ``` ``` RSA NO. 558 OF 2019 & ``` ``` RSA NO. 560 OF 2019 3 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945 RSA NO. 560 OF 2019 ``` ``` AGAINST THE JUDGMENT AND DECREE IN A.S.NO.140/2015 OF III ``` ``` ADDITIONAL DISTRICT COURT, KOLLAM ``` ``` AGAINST THE JUDGMENT AND DECREE IN O.S.NO.831/2004 OF PRINCIPAL ``` ``` MUNSIFF’S COURT, KOLLAM. ``` ## **`APPELLANTS/APPELLANTS/PLAINTIFFS:`** - **`1 BEATRICE CLEETUS, AGED 59 YEARS`** ``` W/O.CLEETUS, RESIDING AT LASIJA BHAVAN, PERAYAM CHERRY, MULAVANA VILLAGE, KOLLAM TALUK-691503 (FIRST PLAINTIFF). ``` - **`2 CLEETUS,`** - **`AGED 63 YEARS`** ``` S/O.YOHANNAN, RESIDING AT LASIJA BHAVAN, PERAYAM CHERRY, MULAVANA VILLAGE, KOLLAM TALUK-691503 (SECOND PLAINTIFF). ``` ``` BY ADV S.SREEKUMAR (KOLLAM) ``` ## **`RESPONDENTS/RESPONDENTS/DEFENDANTS:`** - **`1 HILDA NASERATH, AGED 67 YEARS`** - **`RESIDING AT PUTHUSSERYVILA VEEDU, KUMBALAM CHERRY, MULAVANA VILLAGE, KOLLAM TALUK-691503 (FIRST DEFENDANT).`** - **`2 VALSALAKUMARI,`** ``` AGED 46 YEARS ``` ``` RESIDING AT KATTUVILA KADAVIL VEEDU, KUMBALAM CHERRY, MULAVANA VILLAGE, KOLLAM TALUK-691503 (SECOND DEFENDANT). ``` ``` RSA NO. 558 OF 2019 & ``` ``` RSA NO. 560 OF 2019 4 ``` ``` 3VIVANCIYA, AGED 49 YEARS ``` ``` RESIDING AT KATTUVILA KADAVIL VEEDU, KUMBALAM CHERRY, MULAVANA VILLAGE, KOLLAM TALUK-691503 (THIRD DEFENDANT). ``` ``` R1 TO R3 BY ADV.SRI.A.JANI ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29.02.2024 ALONG WITH RSA NO.558 OF 2019, THE COURT ON 6.3.2024, DELIVERED THE FOLLOWING: ``` ``` RSA NO. 558 OF 2019 & ``` ``` RSA NO. 560 OF 2019 5 ``` ## **COMMON JUDGMENT** Dated this the 6[th] day of March, 2024 R.S.A.No.558/2019 has been filed by Beatrice Cleetus and another, who are the defendants in O.S.No.867/2004 on the files of the Principal Munsiff Court, Kollam, challenging decree and judgment in the above case, dated 22.6.2015, as confirmed by the Additional District Judge, Kollam, in A.S.No.141/2015, as per decree and judgment, dated 28.2.2019. Hilda Nasereth and others are the respondents in this Regular Second Appeal and they are the plaintiffs in the above suit. 2. R.S.A.No.560/2019 is also at the instance of Beatrice Cleetus and another, who are the plaintiffs in O.S.No.831/2004 on the files of the Principal Munsiff Court, Kollam. The appellants impugn decree and judgment in O.S.No.831/2004, dated 22.6.2015, as confirmed by the Third Additional District Judge, in A.S.No.140/2015. Hilda ``` RSA NO. 558 OF 2019 & ``` ## **`RSA NO. 560 OF 2019 6`** Nasereth and others are the respondents in this Regular Second Appeal, who are the defendants in the above suit. 3. Heard the learned counsel for the appellants as well as the learned counsel appearing for the respondents, in detail. 4. I shall refer the parties in these appeals as ‘Beatrice Cleetus and another’ and ‘Hilda Nasereth and others’, for convenience. 5. As on 3.3.2021, this Court raised the following substantial questions of law while admitting these appeals. _“i) Whether the easement by prescription can be granted over a pathway without requisite conditions and stipulations as contemplated under the Easement Act;_ _ii) Whether the two Courts Below went wrong in granting the easement by prescription over the property different from the one as alleged by the respondents before the revenue authorities;_ _iii) Whether the trial court and appellate court went wrong in declaring the easement by prescription over the scheduled pathway_ ``` RSA NO. 558 OF 2019 & ``` ``` RSA NO. 560 OF 2019 7 ``` _without taking into consideration of the commission report.”_ 6. O.S.No.831/2004 has been filed by Beatrice Cleetus and another and they sought the relief of permanent prohibitory injunction, restraining the defendants and their people from cutting open a pathway through the plaint schedule property or from committing any waste or damage therein. The extent of the plaint schedule property in O.S.No.831/2004 is 5.06 Ares and 20.20 Ares (25.26 Ares). According to Beatrice Cleetus and another, they are having absolute title and possession over the plaint schedule property and the Hilda Nasereth and others have no manner of right over the same. Since Beatrice Cleetus and another apprehended trespass upon the plaint schedule property for the purpose of creating a new road, O.S.No.831/2004 was filed. 7. Hilda Nasereth and others resisted the suit claiming easement right of way through the plaint schedule property in O.S.No.831/2004. Apart from that, ``` RSA NO. 558 OF 2019 & ``` ## **`RSA NO. 560 OF 2019 8`** they filed O.S.No.867/2004 contending that F schedule pathway is the only way available to plaint A to F schedule properties belong to them and they have perfected right of easement by prescription over the same. 8. Earlier, the trial court granted decree to the plaintiffs in O.S.No.867/2004, while dismissing O.S.No.831/2004. A.S.Nos.55 and 56 of 2008 filed thereof also confirmed the said verdict. The matter reached before this Court as R.S.A.No.1056/2012, at the instance of Beatrice Cleetus and another, where Hilda Nasereth and others filed cross objection No.77/2012. As per judgment, dated 19.11.2012, this Court set aside the verdicts of the trial court and the appellate court and remanded the matter back to the Munsiff Court for fresh decision, after giving both sides opportunity to adduce evidence in support of their respective contentions. 9. It is submitted by the learned counsel for ``` RSA NO. 558 OF 2019 & ``` ## **`RSA NO. 560 OF 2019 9`** Beatrice Cleetus and another that, while remanding the matter by this Court, an interim arrangement was made as clause No.(iii). But when Beatrice Cleetus and another attempted to exercise more right, O.P. (C).No.3089/2013 was filed and as per judgment, dated 12.3.2014, this Court ordered that the arrangement in the second appellate judgment would be provisional and would be superseded by the decree to be passed in the two suits. Further, this Court held that no survey stones however be placed or electric posts erected over the space till the suits are disposed of with all expedition, while dismissing the Original Petition. 10. The main contention raised by the learned counsel for Beatrice Cleetus and another is that, it is the primary duty of parties who assert right of easement by prescription to plead and prove the same. The learned counsel relied on the decision of this Court in **Mercy** v. **Agnus Maria E.J.** reported in **[2023 KHC 828]** to buttress this point, wherein this Court set out essential ``` RSA NO. 558 OF 2019 & ``` ## **`RSA NO. 560 OF 2019 10`** 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, without interruption for twenty years, for the beneficial enjoyment of the dominant tenement."_ 11. It is zealously argued by the learned counsel for Beatrice Cleetus and another that, in 15.10.2004, Beatrice Cleetus and another filed suit for injunction when they apprehended trespass upon the plaint ``` RSA NO. 558 OF 2019 & ``` ## **`RSA NO. 560 OF 2019 11`** schedule property under the guise of creating a new pathway through therein and Adv.Smt.Jasmine.M. was appointed as Advocate Commissioner. It is also submitted that Exts.C3, C4 and C5 are the rough sketch, report and mahazar filed by Adv.Smt.Jasmine.M, who was examined as CW2. Referring to the report with particular mention to the rough sketch, the learned counsel submitted that, as per Ext.C3 rough sketch, availability of any way through the property of Beatrice Cleetus and another reported by the Commissioner and the Commissioner while giving evidence as CW2 also did not state existence of any way through the property of Beatrice Cleetus and another. It is also submitted that in O.S.No.867/2004, dated 1.11.2004 (after 15 days from filing of O.S.No.831/2004), Adv.Smt.Raji G.S. was appointed as Advocate Commissioner and Exts.C1 and C2 are the report and mahazar prepared by her. It is pointed out by the learned counsel for Beatrice Cleetus and another that, as per Ext.C1 and C2 coupled with the ``` RSA NO. 558 OF 2019 & ``` ## **`RSA NO. 560 OF 2019 12`** evidence of CW1 also, the existence of ‘F’ schedule pathway not specifically located. Therefore, Hilda Nasereth and others miserably failed to prove the existence of F schedule pathway and use of the same, as mandated under Section 15 of the Indian Easements Act, 1882. Therefore, O.S.No.867/2004 must fail and O.S.No.831/2004 would succeed. Therefore, the concurrent verdicts would require interference by answering the substantial questions of law, is the submission of the learned counsel for Beatrice Cleetus and another. 12. Refuting this contention, the learned counsel appearing for Hilda Nasereth and others read out the relevant portions of Exts.C1 to C5, Commission Reports rough sketch and mahazar along with the depositions of CW1 and CW2. The learned counsel for Hilda Nasereth and others submitted that, as per the evidence of CW2, it has been stated that CW2 was not asked to identify the existence of any way through the property of Beatrice ``` RSA NO. 558 OF 2019 & ``` ## **`RSA NO. 560 OF 2019 13`** Cleetus and another and therefore, she failed to report existence of any way through the property of Beatrice Cleetus and another. But, when CW1 visited the property for the purpose of preparing Exts.C1 and C2, it was found that there was attempt to destroy the pathway in existence. Apart from that, the learned counsel for Hilda Nasereth and others submitted that Beatrice Cleetus and another destroyed the way and thereafter, filed O.S.No.831/2004 to deny the right of way available to Hilda Nasereth and others and on knowing destruction of the F schedule way, Hilda Nasereth and others filed petitions before the Revenue Divisional Officer, Kollam. He has placed reliance on Exts.A6 to A10 in this regard. 13. While addressing the rival arguments with reference to the first substantial question of law, it is answered that, easement by prescription could not be granted over a pathway without satisfying the requisites and stipulations contemplated under Section 15 of the Indian Easements Act, 1882, as hereinabove referred. ``` RSA NO. 558 OF 2019 & ``` ## **`RSA NO. 560 OF 2019 14`** 14. The second substantial question of law is, _Whether the two Courts Below went wrong in granting the easement by prescription over the property different from the one as alleged by the respondents before the revenue authorities?_ The third substantial question of law is _Whether the trial court and appellate court went wrong in declaring the easement by prescription over the scheduled pathway without taking into consideration of the commission report?_ 15. In nutshell, the question to be considered is whether Hilda Nasereth and others proved easement by prescription pleaded in the plaint, as mandated under Section 15 of the Indian Easements Act, 1882, as per the available evidence? 16. Before that, an additional way through the property of Sri.Fraicer suggested by Beatrice Cleetus and another, available to Hilda Nasereth and others, to be addressed. In this connection, DW6, Sri.Fraicer given evidence that, he is the brother of the 1[st] defendant and the brother-in-law of the 2[nd] defendant. He had permitted ``` RSA NO. 558 OF 2019 & ``` ## **`RSA NO. 560 OF 2019 15`** Hilda Nasereth and others to walk through his property during the pendency of the suit and Beatrice Cleetus and another also used to walk through his property. In the matter of right of easement by prescription, availability to alternative way is of no significance. It was found by the trial court as well as the appellate court that, as per Exts.C1, C2 as well as C3 to C5, there is an opening in the south western corner of plaint A, B, C and D schedule properties in O.S.No.867/2004, for having access to the plaint E schedule property and new cultivation in the said area also reported as per Exts.C1 and C2. The same would go to show that, there was a pathway as ‘F’ schedule and the same was destroyed by Beatrice Cleetus and another by tilling the soil and by cultivating the same. As per Exts.C1 and C2, it is discernible that Beatrice Cleetus and another constructed a new mud wall on the southern end of the pathway, with intent to obstruct the entry of Hilda Nasereth and others to their property and a gap of 3.2 ft. width is available at present ``` RSA NO. 558 OF 2019 & ``` ``` RSA NO. 560 OF 2019 16 ``` also. In this regard, the antecedents led to filing of O.S.No.831/2004, assume significance. The case of Hilda Nasereth and others is that, before filing of O.S.No.831/2004, Hilda Nasereth and others filed petitions before the Executive Magistrate, Kollam regarding obstruction of the way and its restoration in its original position. Ext.A6 is the order of the Executive Magistrate and the same would reveal that there was a pathway through the plaint schedule property in O.S.No.831/2004 used by Hilda Nasereth and others and predecessors and the same was obstructed by Beatrice Cleetus and another before filing of the suit. In fact, Ext.A6 also in support of existence of plaint F schedule, as contended by Hilda Nasereth and others. Ext.A7 is the photocopy of complaint filed by Hilda Nasereth and others before the Revenue Divisional Officer, Kollam against Beatrice Cleetus and another. Ext.A8 is the photocopy of the report filed by the Village Officer, Mulavana, before the Tahsildar, Kollam, in respect of the ``` RSA NO. 558 OF 2019 & ``` ``` RSA NO. 560 OF 2019 17 ``` way, as on 27.10.2003 (much before filing of O.S.No.831/2004). Ext.A10 is a certificate issued by the President, Perayam Grama Panchayat in respect of Ext.A9 and this certificate also would reveal that in the enquiry by the panchayat committee, the allegations of obstruction of a way, was found to be true. PW2 examined in this case is the Panchayat President of Perayam Grama Panchayat. He supported the said fact. But, DW1 denied the existence of way and examined DW2 to DW4, in support of the said contention. 17. On perusal of the verdicts under challenge, the trial court as well as the appellate court, relied on the evidence of CW1 and CW2, Exts.C1 to C5, Exts.A6 to A9 and supported by the evidence of DW2 and DW6, found that Hilda Nasereth and others used a way, having a width of 3.2 ft. as ‘F’ schedule towards plaint A to E schedule properties and accordingly, non suited Beatrice Cleetus and another, while granting decree in favour of Hilda Nasereth and others, declaring easement by ``` RSA NO. 558 OF 2019 & ``` ``` RSA NO. 560 OF 2019 18 ``` prescription over plaint ‘F’ schedule pathway, having an extent of 3.2 ft. width only, with direction to Beatrice Cleetus and another to restore the same in its original position. 18. On a meticulous analysis of the evidence discussed at par with the arguments tendered, the inevitable conclusion is that, the trial court or the appellate court did not went wrong in granting the right of easement by prescription and the same was properly pleaded and proved in relation to 3.2 ft. pathway and no substantial difference insofar as the existence of ‘F’ schedule way, could be noticed in the records of the Revenue authorities also. 19. As I have already mentioned, the evidence discussed would go to show that, Hilda Nasereth and others pleaded and proved right of easement by prescription over plaint ‘F’ schedule pathway in O.S.No.867/2004 and thereby, the trial court as well as the appellate court rightly granted the decree. In fact, the ``` RSA NO. 558 OF 2019 & ``` ``` RSA NO. 560 OF 2019 19 ``` concurrent verdicts do not require any interference, in any manner. Therefore, both these Regular Second Appeals fail and accordingly, the same are dismissed. All interlocutory orders stand vacated and all interlocutory applications pending in these Regular Second Appeals, stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- **A.BADHARUDEEN JUDGE** Bb