C.I. Prakasan v. C.I. Bhanu

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN TUESDAY, THE 10[TH] DAY OF JANUARY 2023 / 20TH POUSHA, 1944** **RSA NO. 903 OF 2013** **AGAINST THE JUDGMENT IN AS 8/2011 OF ADDITIONAL DISTRICT & SESSIONS** **COURT, VADAKARA OS 180/2010 OF MUNSIFF COURT, NADAPURAM** **-----** ## **APPELLANT/RESPONDENT/DEFENDANT:** C.I. PRAKASAN, S/O.BALAN PANICKER, AGED 69 YEARS, CHERIYA ILLAM HOUSE, KAVILUMPARA AMSOM,MOYILOTHARA DESOM,MARUTHONKARA VILLAGE, KOZHIKODE DISTRICT. BY ADVS. SRI.GEORGE THOMAS (MEVADA)(SR.) SRI.MANU GEORGE KURUVILLA SMT.RINU JOSE ## **RESPONDENT/APPELLANT/PLAINTIFF:** C.I. BHANU, S/O.KELAPPAN PANICKER, RTD. A.E.O, AGED 47 YEARS, CHERIYA ILLAM HOUSE,KAVILUMPARA AMSOM,MOYILOTHARA DESOM,MARUTHONKARA VILLAGE,KOZHIKODE DISTRICT-673513. BY ADVS. SRI.G.S.REGHUNATH THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.S.A. No.903 of 2013** **= = = = = = = = = = = = = = = = = = Dated this the 10[th] day of January, 2023** ## **J U D G M E N T** This Regular Second Appeal is by the defendant in a suit for prohibitory injunction against obstruction of a way described in the plaint 'C' schedule. The plaintiff claimed prescriptive easement right over the way. The suit, though dismissed by the trial court, was decreed in appeal. 2. The plaint 'A' and 'B' schedule properties belong to the plaintiff. Plaint 'C' schedule is the way over which prescriptive right is claimed. It is described as having a width of 2.75 metres situated in the property of the defendant. 3. One Kelappa Panicker and his wife Kallyani, had three sons viz, Bhanu Panicker-the plaintiff, Kunhiraman Panicker and Balan Panicker-the father of the defendant. A larger extent of property including the plaint ## **R.S.A. No.903 of 2013** -: 2 :- schedule properties originally belonged to Kelappa Panicker. In the year 1961, he conveyed the properties to his wife and children as per Settlement Deed No.274/1961. In the year 1976, the mother and children executed Ext.A1 Partition Deed. Under Ext.A1 partition, the plaint 'A' schedule property was allotted to the share of the mother, the plaint 'B' schedule which lies on the south of the plaint 'A' schedule, along with properties on the east and west of the plaint 'A' schedule were allotted to Kunhiraman. The property situated to its east was allotted to the defendant's father Balan Panicker. The property situated on the northern side of plaint 'A' schedule was allotted to the plaintiff. On the eastern side of the entire property, that is, on the eastern side of the property allotted to the defendant's father Balan Panicker, is situated in a public road which lies in north-south direction. The family house of the parties were situated in the plaint 'A' schedule property. They were having access to the ## **R.S.A. No.903 of 2013** -: 3 :- public road towards the east. On the death of the mother, the legal heirs Kelappa Panicker, Kunjiraman and Balan Panicker released their rights over the plaint ‘A’ schedule property in favour of the plaintiff under Exts. A2 to A4 documents. In Ext.A4, Kunjiraman Panicker conveyed the plaint ‘B’ schedule property also to the plaintiff. Subsequently, Balan Panicker conveyed 20 cents, which takes in the plaint 'C' schedule, in favour of his son, the defendant. Alleging that, though the plaintiff has a prescriptive right of way over the plaint 'C' schedule the defendant is attempting to obstruct the same, the suit has been filed. 4. The defendant admitted the derivation of title of the properties and also the lie of the properties. He also admitted that the access to the eastern public road was through the property obtained by his father, which was subsequently conveyed to him. But according to him, the access was only a pedestrian access and not a motorable way as claimed by the plaintiff. He would **R.S.A. No.903 of 2013** -: 4 :- contend that the property allotted to his father was a “nilam”, described in Ext.A1 partition as “Iq¼¦Ãv \new”. The means to access to the eastern public road was through a “varamba”/ridge through the “nilam”. Since the “nilam” was not fit for paddy cultivation, it was gradually raised for planting of coconut, arecanut etc. The defendant's father had converted the property as a “paramba”/garden land. The access to the eastern public road was always through the 75 centimetre width “varamba”/ridge and was only a footpath. A motorable way as claimed by the plaintiff was never in existence. Four years prior to the date of suit, the plaintiff's family bought a Maruti car. At that time on the request of the plaintiff, as an interim arrangement, the plaintiff was permitted to take the car to the plaint 'A' schedule property through the property of the defendant. The permission was granted only as a temporary arrangement. The plaintiff is not entitled for prescriptive right ## **R.S.A. No.903 of 2013** -: 5 :- over the plaint 'C' schedule way. Contending thus, he prayed for dismissal of the suit. 5. Heard learned counsel Sri.Manu George Kuruvila on behalf of the appellant-defendant and Sri.G.S.Reghunath, the learned counsel for the respondent-plaintiff, on the following substantial questions of law:- _(i) Did the first appellate court fail to consider the question regarding the width of the way that the plaintiff is entitled to, especially when the plaintiff claims a right of way over 2.75 metre width way and the defendant contends that the right is only for a 75 centimeter wide foot access ?_ _(ii) In the nature of the rival contentions, was it not obligatory on the part of the first appellate court to consider the extent of easement, independent of finding on the right of easement ?_ _(iii) Does the evidence on record justify the plaintiff's claim for prescriptive easement right over a 2.75 metre wide way ?_ ## **R.S.A. No.903 of 2013** -: 6 :- 6. The learned counsel for the appellant would argue that, the plaintiff has failed to establish his claim for a 2.75 metre wide way. Evidence to prove the user of a 2.75 metre wide way in satisfaction of the ingredients of an easement by prescription including exercise of the right for the statutory period, is totally lacking, it is contended. Sri.G.S.Reghunath, learned counsel for the respondent-plaintiff would contend that, it being undisputed that since four years prior to the suit there existed a way in the manner as claimed by the plaintiff, and as on the date of suit such way being in existence, the burden is on the defendant to prove that the way that was in existence did not have so much width and that it was only a footpath having a width of 75 centimeters. He further argued that, unity of ownership and severance having been admitted, the parties are entitled for the benefit of way as it existed at the time of partition as a quasi-easement. The said right cannot be obstructed or **R.S.A. No.903 of 2013** -: 7 :- prevented by the defendant it is contended. 7. In paragraph 12 of the written statement, the defendant had stated that he has no objection in the plaintiff using the 75 centimeter wide way as a footpath for access to the eastern public road. The relevant portion reads thus:- _“_ F¶m Im-cy hn-h-c ]-{Xn-I-bn ap-¼v hn-h-cn-¨ {]-Im-c-ap ¶ h- ÅXpw {]-Xn ssIh-iw h-kv-Xp-hn ap-¼p-ïm-bn-cpb ¶ hc-¼v Øn-Xn-sN-bv-Xn-cp- Ø-e-¯p-Iq-Sn A-\ym-b-¡mc\pw A-\ym-b-¡mc-sâ B-fp-Ifpw A-\ym-b _A, B_ ]«n-I h- kv-Xp-¡-fn-te¡pw ho-«n-te¡pw ImÂ-\-S-bm-{X-¡v D-]-tbm-Kn ¨p h-¶n-«p-Å-Xp 75 _c.m._ ho-Xn-bpÅ H-cp ImÂ-\-Sh-gn ImÂ-\-S-bm-{X-¡p am{Xw A-\ym-b-¡m-c\pw B-fp-Ifpw XpSÀ¶pw D-]-tbm-Kn-¡p-¶-Xn-\v Cu {]-Xn-¡v bm-sXm-cp B- t£-]-hp-anÃ. A§-s\ H-cp ImÂ-\-S-h-gn-bn Iq-Sn A-\ym-b¡m-c\pw B-fp-Ifpw bm-{X-sN-¿p-¶-Xn\v Cu {]-Xn H-cn¡epw X-S-Ê-s¸-Sp-¯p-¶-XpaÃ. _”_ The aforesaid averments have been reiterated by the defendant in his deposition as DW1. 8. In the light of the aforesaid stand of the defendant, the nature of the right, whether it is an ## **R.S.A. No.903 of 2013** -: 8 :- easement by prescription or as a quasi-easement is not of much significance. What is relevant is the extent of easement; in other words, the width of the way that the plaintiff is entitled to, is the issue. 9. Though the defendant has admitted the existence of way having a width as claimed by the plaintiff as on the date of suit, it is his contention that it was formed consequent on the permission granted by him four years back to take the new Maruti car purchased by the plaintiff to the plaint 'A' schedule property. 10. Both sides having adduced evidence, whether the evidence on record is sufficient to find the user of a way having a width of the way as 2.75 metres for the statutory period under Section 15 or at the time of partition (in the context of the argument on quasieasement), needs to be considered. 11. The plaintiff while examined as PW1, in crossexamination, stated thus:- **R.S.A. No.903 of 2013** -: 9 :- _“_ ap¸-Xmï-v hÀ-jw ap-¼v A-\ym-bw _A_ ]«n-I Ø-e-t¯-¡p Im . hÀ-jw \-S-h-gn-bm-bn-cp¶p ap-¸¯-©p ap-s¼ A-\ymbw _A_ ]-«n-I-bn-se Ø-e-t¯-¡p hm-l-\ K-XmK-Xtbm-Kyam-b h-gn D-ïm-bn-cpt¶m F-¶p HmÀ-¡p-¶nÃ. B Ime¯v _motorcycle_ h-cm-\p-Å ku-Icyw D-ïm-bn-cp¶p. _”_ 12. Even according to him, 35 years back the disputed way was only a foot path. So, at the time of Ext.A1 partition, it was only a footpath (\-Shgn). There is no evidence on record to find as to when the footpath was widened into a 2.75 metre way. PW1, in his crossexamination has stated “A-\ym-bw C ]«n-I h-gn A-hIm-i cqt]-W D-]-tbm-Kn-¨v Xp-S-§n-b-Xv 1982 ap-X-emWv.” Therefore, the prescriptive right claimed is from the year 1982. There is total lack of evidence to find that, in the year 1982, the footpath was widened and was formed as a 2.75 metre wide way, and that the plaintiff was using the same satisfying the ingredients to acquire an easement by prescription. Easement being a precarious right claimed over the property of another, definite pleadings **R.S.A. No.903 of 2013** -: 10 :- and evidence is necessary. _(See_ _**K.R. Suraj & Ors. v. Southern Railway, Union of India & Ors., 2020 (6) KLT 645, Kallen Devi v. Raghavan, 2012 (3) KLT 142, Ibrahimkutty v. Abdul Rahuman Kunju, 1992 (2) KLT 775** )_ . The plaintiff has to prove that a 2.75 metre wide way was being used by him for the statutory period on satisfying the other elements required to acquire a prescriptive easement right. Though the learned counsel for the respondent would argue that based on the probabilities it has to be assumed that a 2.75 metre wide way was being used by the parties and their predecessors, in the light of the candid admission of PW1 that the way in question was earlier only a footpath (\-Shgn), it is for the plaintiff to prove that he was using 2.75 metre wide way for the statutory period. The plaintiff has failed to prove the same. 13. As regards the contention of the learned counsel for the respondent that the plaintiff has a quasi-easement right of way, it is to be noticed that, ## **R.S.A. No.903 of 2013** -: 11 :- no such claim was put forward by the plaintiff before the trial and appellate courts. The specific claim of the plaintiff was that he has acquired a prescriptive right of way. The relevant pleading is in paragraph 10 of the plaint which reads thus :- _“Plaintiff is in enjoyment of the plaint C schedule property as the way leading from Kuttiady-Thottilpalam road to his house and plaint A and B schedule properties as of right, peacefully, continuously, openly and uninterruptedly as of right as an easement for the last more than 34 years. Plaintiff has acquired a right of way by prescriptive easement over the plaint C schedule property.”_ 14. Though the learned counsel for the respondentplaintiff would contend that right of way as quasieasement could be claimed even without any plea, as noticed supra, any plea of easement has to be specifically urged. The plaintiff could not now be heard to contend that he has acquired a quasi-easement right of way over the plaint 'C' schedule. Be that as it may, **R.S.A. No.903 of 2013** -: 12 :- even assuming that the respondent-plaintiff is entitled to urge a claim of quasi-easement, then again the question relevant is as to what was the width of the way at the time of partition, and whether such an easement is necessary for enjoying the property as it was enjoyed at the time of partition. It is only the benefit enjoyed by the parties at the time of Ext.A1 partition in 1976 that the plaintiff could at best claim as a quasieasement. This is so in terms of Section 13 of the Indian Easement Act, which reads thus:- _“_ _**13. Easements of necessity and quasi-easements.—** Where one person transfers or bequeaths immovable property to_ _**—** another,_ _--------------(a)_ _--------------(d)_ _Where a partition is made of the joint property of several persons,_ _**—**_ _-------------(e)_ _(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different_ **R.S.A. No.903 of 2013** **==> picture [40 x 9] intentionally omitted <==** _intention is expressed or necessarily implied, be entitled to such easement._ _Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.”_ 15. There is no evidence to the effect that as on the date of Ext.A1 partition, there existed a 2.75 metre wide way for access to the eastern public road. As noticed supra, even according to the plaintiff, the way that was in existence was only a footpath. There is no evidence that prior to Ext.A1 it was widened to 2.75 metre wide way. Here, it is also to be noted that, PW1 in his cross-examination has stated that 'C' schedule was lying 2 metres lower in level than plaint 'A' and 'B' schedule properties and that there were laterite stone steps constructed for access from the plaint 'A' and 'B' schedule to the 'C' schedule. He further stated that, a way was formed at the places where steps ## **R.S.A. No.903 of 2013** -: 14 :- existed, by making a slope. Even according to him, it was so made only in the year 1977; it is subsequent to Ext.A1 partition. This is noted only to point out that, the claim for a quasi-easement could not be made in respect of the plaint 'C' schedule way described as having a width of 2.75 metres. The way that existed at the time of partition was only laterite stone steps which could not be understood to be a “motorable way”. Therefore, the argument based on quasi-easement fails even on the merits apart from the absence of plea. 16. Even going by the plaintiff's case, the car was purchased only 6 years prior to the suit. There is no evidence that there was a four-wheeler access to the plaint 'A' and 'B' schedule properties at any time prior to that. Therefore, it could only be concluded that the plaintiff has failed to prove his right over 2.75 metres wide way as described in the plaint 'C' schedule. 17. Incidentally it is also to be noted that, though in the written statement the specific case of the **R.S.A. No.903 of 2013** -: 15 :- plaintiff is that the plaint 'C' schedule is the only access to the plaint 'A' schedule property, PW1 in cross-examination has admitted that, on the northeastern portion of the property obtained by him under Ext.A1 partition there exists a public road and that the plaint 'A' and 'B' schedule properties are lying adjacent to the said property. 18. The first appellate Court, but for saying that the right acquired by Kallyani passes on to the plaintiff, does not enter a finding regarding the right or the extent of the right. Ext.A1 partition was in the year 1976 and Kallyani died before the year 1982. Further, the appellate court, with regard to the right of plaintiff, apart from merely stating that, there are “satisfactory cogent evidence”, that “there is evidence forthcoming”, that “there is convincing and satisfactory evidence”, there is no discussion regarding the evidence. I have referred to the materials on record (supra) and held that the plaintiff has not established ## **R.S.A. No.903 of 2013** -: 16 :- his right over a 2.75 metre wide way. The trial Court was right in having negatived the plaintiff’s claim. The interference by the first appellate court was not based on any materials. Substantial questions of law are answered as above. The decree and judgment of the trial court is liable to be restored. Resultantly, the Regular Second Appeal is allowed. The decree and judgment of the first appellate court is set aside and that of the trial court is restored. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge