Cicily, W/o Late Thomas, et al. 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. 1298 of 2013 (D) -------------------------** **AGAINST THE JUDGMENT AND DECREE DATED 20.08.2013 IN AS 8/2011 of SUB COURT, KOCHI-5** **AGAINST THE JUDGMENT AND DECREE DATED 30.11.2010 IN OS 262/2008 of PRINCIPAL MUNSIFF COURT, KOCHI** ## **APPELLANTS/APPELLANTS/DEFENDANTS-CLAIMANTS IN COUNTER CLAIM.:** **-------------------------------------------------------------** **1. CICILY,W/O.LATE THOMAS, AGED 72 YEARS, CHITTEZHATH HOUSE, HOSPITAL JUNCTION, NARAKKAL-682505, ERNAKULAM DISTRICT.** **2. BABU THOMAS, S/O.LATE THOMAS,** - **AGED 50 YEARS, CHITTEZHATH HOUSE, HOSPITAL JUNCTION, NARAKKAL 682505, ERNAKULAM DISTRICT.** **3. RAJU THOMAS, S/O.LATE THOMAS, AGED 48 YEARS,CHITTEZHATH HOUSE, HOSPITAL JUNCTION, NARAKKAL 682505, ERNAKULAM DISTRICT.** **4. SHEELA POULOSE, D/O.LATE THOMAS, AGED 42 YEARS, MANDAPATHIL HOUSE, NEAR MAMPILLI WORKSHOP, MANJANAKKADU ROAD, NARAKKAL 682505, ERNAKULAM DISTRICT.** **5. RANI MATHEW, D/O. LATE THOMAS,** - **AGED 40 YEARS, KONNULLY HOUSE, KOCHUPALLY ROAD, THOPPUMPADY, KOCHI-682005,ERNAKULAM DISTRICT.** **6. MINI BENNY, D/O.LATE THOMAS,** - **AGED 38 YEARS, THUNDATHIL HOUSE, HOSPITAL JUNCTION, NARAKKAL 682505, ERNAKULAM DISTRICT.** **BY ADVS.SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN** **RSA.No. 1298 of 2013 (D)** **-------------------------** ## **RESPONDENT/RESPONDENT/PLAINTIFF-DEFENDANT IN COUNTER CLAIM.:** **------------------------------------------------------------** **K.C.BABU, S/O.CHAKKUNNI, AGED 46 YEARS, RESIDING AT KOLLANNUR PALACE, KATHRUKKADAVU, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT-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, ALONG WITH RSA. 1300/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DSV/-** ## **B. KEMAL PASHA, J.** ============================ R.S.A.Nos.1298 & 1300 of 2013 ============================ _Dated this the 16[th] day of June, 2017_ ## **J U D G M E N T ----------------------** Challenging the concurrent findings entered by the Munsiff’s Court, Kochi, in O.S.No.262 of 2008, followed by those of the Subordinate Judge’s Court, Kochi, in A.S.Nos. 7 of 2011 and 8 of 2011, the defendants have come up in Second Appeals. 2. The suit was filed by the respondent herein, seeking a decree of perpetual injunction restraining the defendants and their agents, successors and servants from trespassing into and from putting up or making any new constructions or from enlarging the existing B schedule structures coming within A schedule property and also restraining them from causing any obstructions to the plaintiff in constructing the wall/fence around and within the plaint A schedule, without causing any obstructions to the R.S.As.1298 & 1300/13 : 2 : enjoyment and user of their house by defendants and, also from causing any obstructions to the peaceful possession and enjoyment of the plaint A schedule property by the plaintiff. 3. In the suit, defendants 1 to 3 had filed a joint written statement setting up counter claims, for getting their acquired easement right by prescription declared over counter claim B schedule way for the ingress and egress to the defendants to and from their house including vehicular traffic. A decree of perpetual injunction was also sought for, for restraining the plaintiff and his men etc. from causing any obstructions to the user of the counter claim B schedule way by the defendants and also from causing obstructions or inconvenience to the user of the defendants and their family members over counter claim A schedule property. 4. After trial, the Munsiffs Court, Kochi, decreed the suit, thereby restraining the defendants from enlarging plaint B schedule structures and from trespassing into any other R.S.As.1298 & 1300/13 : 3 : portions of plaint A schedule property except plaint B schedule items and building and, also restraining the defendants from causing obstructions to the construction of the boundary wall or fence around and within plaint A schedule property, without causing obstructions to the defendants in their enjoyment of their house. The counter claims were dismissed. 5. Two separate appeals were found filed by the defendants as A.S.No.7 of 2011, challenging the decree in the suit and A.S.No.8 of 2011, challenging the dismissal of the counter claim, before the Subordinate Judge’s Court, Kochi. The lower appellate court dismissed both the appeals and hence these Second Appeals. 6. These Second Appeals were admitted by this Court on the following substantial questions of law raised in the appeal memorandum: _“(i) As pointed out by the Supreme Court in the decision_ R.S.As.1298 & 1300/13 : 4 : _Boramma v. Krishna Gouda 2000(4) CCC 148 SC = 2000 (9) SCC 214, will it be a sound rule of appreciation of evidence to pick up an answer from cross examination of a witness and draw an adverse inference, taking it in isolation?_ _(ii) Is not the court bound to see as to how the testimony of the witness is and as to how that answer fits in with the rest of the evidence and probabilities of the case?_ _(iii) Will stray sentences in cross examination constitute admission and can slip answers given by a party be misconstrued and isolated sentences taken advantages of ?_ _(iv) Will not open and notorious user during the statutory period of prescription give rise to a presumption that the user was as of right, especially in the absence of any rebuttal?_ R.S.As.1298 & 1300/13 : 5 : _(v) Whether ineffectual opposition in evidence (there was actually no opposition at all) to the exercise of what is claimed to be a right, support the right?_ _(vi) Even in a case where a right of easement or possession is not pleaded for the user of a pathway, cannot the plaintiff in such a case sue for an injunction alone, as has been held in AIR 1965 SC 1147 v. (Mangalore Municipality Mahadeoji) and followed in 1991 (2) KLT 477 (para 8) (Vavvakkavau Muslim Thaikkavu Pally v. Narayan Purushan)?_ _(vii) Whether in the facts and circumstances of the case, are the judgments and decrees of the court below are sustainable?”_ 7. Heard the learned counsel for the appellants and the learned counsel for the respondent. 8. The learned counsel for the appellants has argued R.S.As.1298 & 1300/13 : 6 : that when there is long user of counter claim B schedule pathway from the Vypin-Munambam Road by the defendants for having access to their building, that itself creates an easement by prescription and therefore, the courts below ought to have granted a decree on the counter claim as prayed for. 9. The learned counsel for the appellants has relied on the decision in **Joseph v. Joseph and another** [1973 KLT 391] and argued that a user of a pathway initially procured through permission could subsequently turn to be adverse and as of right. The learned counsel for the respondent has argued that the user of the building as such in plaint B schedule property and the structures in plaint B schedule property by the defendants and their predecessor in interest are merely by way of a licence and therefore, the entry of the licensee to the said structures or the building as the case may be through any of the remaining portions of the plaint A schedule property can only be permissive. R.S.As.1298 & 1300/13 : 7 : Therefore, it is argued that the defendants are not entitled to the declaration sought for over the counter claim B schedule pathway. It has also been argued that there is only a rough sketch appended with the Commissioner's Report as Exhibit-C1(a), which does not show any of the measurements of the property and therefore, a decree cannot be passed on the strength of Exhibit-C1(a) or Exhibit-C1 in respect of the counter claim. 10. In **Joseph's case** ( _Supra_ ), a learned Single Judge of this Court held that even if the right of user to start with, was with permission, it must be presumed that by the death of the person granting the licence or permission, the right ceased; and thereafter, the plaintiff must have been using it in his own right without reference to the defendants. Here, in this particular case, it was already held finally in O.S.No.726 of 1976 that the licence created in respect of the building in favour of Thomas, who was the predecessor in interest of the appellants, became an irrevocable licence R.S.As.1298 & 1300/13 : 8 : on account of the constructions carried out by him in the property as well as the building which are of permanent in nature by spending his own money. Therefore, it has been concluded that the licence in respect of the building and other structures coming within the plaint B schedule items are having the nature of an irrevocable licence in favour of the predecessor in interest of the appellants and the same is being continued by the appellants. At the same time, the licensee or licensees cannot claim as of right any pathway leading to plaint B schedule items through other portions of plaint A schedule property. Such access to the plaint B schedule items is also merely on the basis of a licence. So long as such pathway and access is on the basis of a licence and continues to be so, the licensees cannot claim that such user over the pathway is as of right, in order to bring it within the purview of an easement by prescription. A prescriptive right cannot be created so long as the user continues to be permissive. R.S.As.1298 & 1300/13 : 9 : 11. In the decision in **Joseph's case** ( _Supra_ ), the licenser died and consequently, within the meaning of Section 59 of the Easements Act, the licence came to an end because of the fact that the licence was a revocable one. In such case, just on the death of the licenser, the licence extinguished and therefore, from that time onwards the user became adverse. That is not the case herein. In this particular case, the building and other structures in the plaint B schedule item has attained the characteristic of an irrevocable licence within the meaning of Section 60 (b) of the Easements Act. Therefore, whether it is revocable or irrevocable licence, it continues to be a licence. So long as it continues to be a licence, the user is merely permissive. The restriction on the licenser is only to the effect that the licenser cannot revoke the licence in respect of the user of the building and structures in plaint B schedule item. Even when it cannot be revoked, it can continue only as a licence and nothing more. When it is a mere licence, the appellants R.S.As.1298 & 1300/13 : 10 : cannot claim as of right an easement by way of prescription over the pathway, if any, leading through other portions of plaint A schedule property to plaint B schedule items. 12. At the same time, it is the admitted case of respondent/plaintiff that there is plaint C schedule pathway to enable the appellants to have access from the southern pathway to plaint B schedule items. The respondent/plaintiff is not standing in the way of the appellants from making use of plaint C schedule pathway to have access to plaint B schedule items. Therefore, as rightly found by the lower appellate court, it cannot be said that plaint B schedule items will not get land locked, even if the respondent is permitted to put up compound wall or fencing over other portions of plaint A schedule item excluding plaint B schedule items and plaint C schedule pathway. It is true that when the plaint C schedule pathway is passing through almost the middle of the plaint A schedule property, the properties of the respondent become separated on account R.S.As.1298 & 1300/13 : 11 : of the pathway. At the same time, it is a fact that the appellants have an access to plaint B schedule items for which plaint C schedule item has been specifically provided by the respondent. Matters being so, the declaration sought for and the consequential perpetual injunction sought for by the appellants through the counter claims are not legally sustainable and the courts below are perfectly right in denying the said counter claims to the appellants. 13. Regarding the decree granted to the respondent/plaintiff by the trial court and confirmed by the lower appellate court, there is absolutely nothing to interfere with it. The plaintiff is entitled to have such a decree of perpetual injunction and the courts below have rightly granted the relief. The decree granted by the trial court in favour of the plaintiff stands as such without any further modification. Even though some other questions were also raised in the appeal memorandum as substantial questions of law, any such questions do not arise in this matter and R.S.As.1298 & 1300/13 : 12 : therefore, this Court is not addressing on those aspects. In the result, these Regular Second Appeals are dismissed and all the pending interlocutory applications in these Regular Second Appeals are closed. In the nature of these Regular Second Appeals, there is no order as to costs. Sd/- **B.KEMAL PASHA,** **JUDGE** DSV/19/6/17 // True Copy // P.A. To Judge