Chandrika Sasidharan v. Raghuvaran and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933** **SA.No. 637 of 1998(A)** **---------------------** **AS.18/1995 of ADDL.DISTRICT COURT ALAPPUZHA. OS.627/1993 of PRINCIPAL MUNSIFF COURT, ALAPPUZHA** **....................** **APPELLANT IN SA/ RESPONDENT IN THE LOWER APPELLATE COURT/ PLAINTIFF IN THE SUIT:** - **-------------------------------------------------------------------------------------------------------** **CHANDRIKA SASIDHARAN, CHANDRIKA NIVAS, PARAVOOR VILLAGE, WARD NO.II, PUNNAPRA PANCHAYAT, ALAPPUZHA.** **BY ADVS. SRI.S.V.BALAKRISHNA IYER SMT.M.M.TEENA** **RESPONDENTS IN SA/APPELLANTS IN THE LOWER APPELLATE COURT/DEFENDANTS IN THE SUIT. :** **----------------------------------------------------------------------------------------------------** **1. RAGHUVARAN, RESIDING AT VELIKKAKATHU PARAVOOR VILLAGE, PARAVOOR MURI, PUNNAPRA PANCHAYAT, WARD X, AMBALAPUZHA, ALAPPUZHA DISTRICT.** **2. SARASAMMA, VELIKKAKATHU, PARAVOOR, PUNNAPRA, WARD X, AMBALAPUZHA.** **3. SETHULAL, VELIKKAKATHU, PARAVOOR, PUNNAPRA, WARD X, AMBALAPUZHA.** **4. GEETHA, VELIKKAKATHU, PARAVOOR VILLAGE, PUNNAPRA, AMBALAPUZHA.** **5. SREEKALA, VELIKKAKATHU, PARAVOOR VILLAGE, PUNNAPRA, WARD X, AMBALAPUHZA.** **6. SUNIL, MINOR, VELIKKAKATHU, PARAVOOR VILLAGE, PUNNAPRA, WARD X, AMBALAPUZHA.** **7. PREETHA, MINOR, VELIKKAKATHU, PARAVOOR VILLAGE, PUNNAPRA, WARD X, AMBALAPUHZA.** - **(MINORS 6 AND 7 REPRESENTED BY THEIR GUARDIAN AND FATHER 1ST RESPONDENT).** - **BY ADVS. SRI.P.G.PARAMESWARA PANICKER SRI.P.GOPAL** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SA.No. 637 of 1998(A) ------------------------------** ||**ORDER O CMP.1744/1998 IN SA NO.637/1998**| |---|---| ||**DISMISSED**| |**28.3.2011**|**Sd/- P.BHAVADASAN , JUDGE**| ||**/ TRUE COPY /**| ||**P.A. TO JUDGEMENTIN**| |**VK**|| ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 637 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of March, 2011. ## **JUDGMENT** The plaintiff in O.S. 627 of 1993 before the Munsiff's Court, Alappuzha, who was non-suited by the lower appellate court, is the appellant. 2. The plaintiff owns and possesses plaint item No.1. Plaint item No.2 is said to be a pathway running through the property of the defendants. The plaintiff claimed both easement by necessity and prescriptive right of easement to the said pathway. Since obstruction was caused by the defendants for the use of the pathway by the plaintiff, the suit was laid. 3. The defendants resisted the suit by pointing out that there is no such pathway which runs through their property and that the plaintiff has other means of access to the outside world. It is specifically contended that at no point of time, plaintiff or her predecessors-in-interest had 2 used any pathway running through their property. If at all the plaintiff had ever made use of the plaint schedule property as if it was permissive, she is not entitled as a matter of right to claim any kind of right over any portion of the defendants' property. On the basis of these contentions, she prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 to 5 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The first defendant examined himself as D.W.1. Exts.C1 to C6 are the commission reports and plans. The trial court on an evaluation of the evidence found that the plaintiff is not entitled to claim easement by necessity. However, it was held that the plaintiff has succeeded in establishing that she is entitled to claim prescriptive right of easement to use plaint item No.2 pathway and decreed the suit. 5. The disappointed defendants took up the matter in appeal as A.S.18 of 1995 before the District Court, S.A.637/1998. 3 Alappuzha. The District Court found that there was categoric admission by P.W.1 that permission was given to her to use the pathway almost 3 ½ prior to the date of the suit. If that be so, one of the essential ingredients to attract prescriptive right of easement is absent in the case and accordingly reversed the judgment and decree of the trial court and dismissed the suit. That has brought the plaintiff before this court. 6. Notice is seen issued on the following questions of law: _“(A) Whether on the facts and in the circumstances of the case, the plaintiff has not proved an easement by prescription?_ _(B) Has not the lower appellate court acted illegally and with material irregularity in misreading the evidence of P.W.1 and are not the conclusions reached by that court that the appellant has been using the pathway on permission, perverse?_ _© Has not the lower appellate court erred in ignoring the pleadings of parties before it rushed_ S.A.637/1998. 4 _to the conclusion that the user of the pathway was on consent?_ _(D) Do not the conclusions of the lower appellate court based on the oral evidence wholly unsustainable which no reasonable tribunal could have arrived at, and do not those conclusions lead to denial of justice to the appellant?”_ 7. Learned counsel appearing for the appellant pointed out that the lower appellate court has misread the evidence of P.W.1 and has reached a wrong conclusion on that basis. Learned counsel emphasized that the existence of the pathway has been found by both the courts below and some stray sentences have been extracted from the evidence of P.W.1 to hold against the plaintiff. The lower appellate court has omitted to note the evidence furnished by the commissioner and other evidences which show that there was no other pathway which the plaintiff could make use of to gain access to the outside world. Learned counsel pointed out that the lower appellate court has S.A.637/1998. 5 mis-appreciated the evidence and therefore the findings are perverse and unsupported both on facts and in law. In support of his contention that the plaintiff is entitled to prescriptive right of easement, learned counsel relied on the decisions reported in **Narayanan Nair v. Mariamma Kurian** (1988 (2) K.L.T. 486) and **Maniyan Krishnan v. Nanukuttan** (1986 K.L.T. 203). 8. Per contra, learned counsel appearing for the respondents contended that the lower appellate court has properly appreciated the evidence in the proper perspective and has come to the right conclusion. Learned counsel referred to the evidence of P.W.1 and pointed out that there was another pathway available to the plaintiff to reach outside world. If that be so, the finding of the lower appellate court is fully justified. According to learned counsel, the findings of the lower appellate court are based on appreciation of evidence and no substantial question of law arises for consideration in this second appeal. S.A.637/1998. 6 9. It is evident that the dispute relates to a pathway shown as item No.2 to the plaint, which runs through the property of the defendants. Both the commissioner reports and plans, namely Exts.C1 to C6 do show the existence of the pathway claimed as item No.2. Exts.C1 to C3 also makes mention of another pathway running though the northern side of plaint item No.2. As rightly pointed by the learned counsel for the appellant, the real question is whether the plaintiff has succeeded in proving that she is entitled to use plaint item No.2 pathway by way of prescriptive right of easement. 10. Learned counsel for the appellant rightly pointed out that the definite stand of the defendants was that there is no such pathway running through their property and at no point of time any portion of their property is being used by the plaintiff as of right. Learned counsel for the appellant is justified in his submission that the claim of the defendants can be found to be untrue going by the commission reports and plans and also the evidence of S.A.637/1998. 7 P.Ws. 1 to 5. The portion of the evidence of P.W.1 which impressed the lower appellate court reads as follows: “ അന�വ�ദ� തന�ട�ണ�യ�ര�ന�. എന�ക�� എന�റ മകളക�� പ��ക�ന�ണ� അന�വ�ദ� തനത�. 3, 3 1/2 വര#� മ����ണ� അന�വ�ദ� തനത�. ആ അന�വ�ദ� പ�ത� ���വല� ച�ട�ല. പ�ത�കള അത�നല നടകര �നതന� ഞങപ,�ട� �റഞ�ട�ണ��.” 11. The evidence of P.W.1 has to be read as a whole. The context in which the above statements were made has to be understood clearly. P.W.1 had stated in her evidence that item No.2 was the only pathway for her to reach outside world. It is an admitted fact that there is a main road lying on the eastern side of the property owned by the defendants. It is to reach that road that item No.2 is being used. P.W.1 has clearly stated that she has no other means of access to her property. She is an adoptive daughter of Mani Kochuparu, who obtained kudikidappu right over item No.2. True P.Ws. 1, 3 and 4 have stated that the pathway has been used for over 17 years. But the S.A.637/1998. 8 evidence of P.W.5 is to the effect that ever since his childhood he has been seeing people using item No.2 to reach item No.1. On the date of his examination he was 50 years of age. 12. Coming back to the evidence of P.W.1, the context in which the extracted portion was spoken to by the plaintiff may be appreciated. She has stated that when the defendants obstructed her use, she asked them to permit her to use the pathway and permission was granted that is about three and half years ago. She has also stated that the defendants have taken objection to the use of the pathway. Then she says that she therefore asked the defendants whether they were willing to sell a portion of the property on the northern side so that she could gain access to the outside world. The above extracted passage could not be read as one of admission by the plaintiff that she used the pathway with the permission of the defendants and that her rights were obstructed by the defendants. When read as a whole, the evidence is clear to the effect that she has been S.A.637/1998. 9 using the pathway as of right till it was obstructed by the defendants. She had spoken about the context of the obstruction made by the defendants. 13. At this juncture, one has to notice the evidence of P.Ws. 2 to 5. P.W.2 is the commissioner, who has stated that during both his visits he reached the plaint schedule property through plaint item No.2. From the evidence of the commissioner, it is very clear that item No.2 pathway exists. P.Ws. 3 and 4 are the residents on the eastern and western sides of plaint item No.1. Both of them had stated that they used to go to plaint item No.1 to purchase milk through the disputed pathway. They have also stated that there is no other pathway available. More important is the evidence of P.W.5. He is definite in his statement that the pathway, i.e., item No.2, is in existence for a long time and he has seen people using the pathway eversince his childhood. It is significant to notice that there is no ill-motive suggested to P.Ws. 3, 4 and 5 as to why they S.A.637/1998. 10 should depose against the defendants and in favour of the plaintiff. 14. In the decision reported in **Narayanan Nair's case** (supra), it was held as follows: _“Even otherwise in considering the prescriptive right, the availability of another access is only of ratiocinative and in the appreciation of evidence. It cannot affect the otherwise available prescriptive right. Such an access could negative only the easement of necessity and not the prescriptive easement.”_ 15. In the decision reported in **Maniyan Krishnan's case** (supra) the ingredients necessary to attract prescriptive right of easement are stated. 16. The trial court has analysed the evidence and came to the conclusion that item No.2 is the only means of access of the plaintiff to gain access to outside world. 17. The main contention taken by the counsel for the respondents is that if the use was permissive, 20 years statutory period of use is not established and that there are S.A.637/1998. 11 other ways available to the plaintiff and so also there has been interruption in the use of item No.2 pathway. 18. As regards permissive use, it has already been dealt with in the earlier paragraphs. Here, one has to remember that the definite case of the defendants was that there is no pathway as plaint item No.2 at all. They have been taking statements from the evidence of P.W.1 to contend that the use, if at all, any was permissive. As already stated, the evidence has to be read as a whole. It is true that P.Ws. 1, 3 and 4 have stated that they were using item No.2 pathway to reach item No.1 for more than 17 years. They have not stated that it has been used for more than 20 years. P.W.5 resides on the northern side of the plaintiff's property. He has stated that he was aged 50 years on the date of his examination. He has categorically stated that he has seen people using item No.2 pathway for gaining access to plaint item No.1. 19. P.W.2, the commissioner, has categorically stated that the pathway used by him is item No.2. It is true S.A.637/1998. 12 that in Ext.C3 sketch it has been shown that there is a pathway on the northern side of the property of V.S.Achuthanandan. But there is nothing to show that there is such a pathway, which the plaintiff can be used as a matter of right. The main suggestion to the plaintiff was that she could use the property of V.S. Achuthanandan, which is situated on the immediate eastern side of the plaintiff's property. In Exts.C4, C5 and C6 the commissioner has categorically stated that he was unable to locate any other pathway. 20. Viewed in the light of the evidence, it appears that the finding of the lower appellate court is unjustified. The evidence is overwhelming to the effect that there is a pathway shown as item No.2 running through the property of the defendants. There is nothing to show that the plaintiff has any other means of access to her property other than item No.2. It is true that merely because there is no other pathway available to the plaintiff to gain access to outside world, the cannot use the pathway running through the S.A.637/1998. 13 property of the defendants. But on a reading of the evidence of P.Ws. 3, 4 and 5, who had no animosity towards the defendants, it is clear that item No.2 has been used by the people to gain access to plaint item No.2 for a long time. Their evidence is also clear to the effect that there is no other pathway by which one can gain access to plaint item No.1. In fact one of the witnesses who resides on the western side of item No.1 says that she has to go around and come to the property of the defendants to reach the property of the plaintiff. 21. Evidence of D.W.1 is to the effect that there is no pathway through his property. He has no case that there is a pathway through his property, which was used by the plaintiff as per the permission granted by him. The case of the defendants is that the pathway infact reaches their property and thereafter its existence is in doubt. However, the evidence in the case consisting of the commission reports and the oral testimony of P.Ws. 3, 4 and 5 will leave one in no doubt that there runs a pathway shown as item S.A.637/1998. 14 No.2. The evidence is also clear to the effect that the pathway was being used by the people for a long time to gain access to item No.1. For the above reasons, this court is unable to accept the finding of the lower appellate court. The lower appellate court has misconstrued and misdirected itself both on facts and in law, which has resulted in miscarriage of justice. The lower appellate court ought not to have reversed the findings of the trial court. In the result, the questions of law are answered in favour of the appellant and the second appeal is allowed, the judgment and decree of the lower appellate court are set aside and that of the trial court is restored. There will be no order as to costs. **P. BHAVADASAN, JUDGE** sb.