Devalal v. Mohanan and Sarala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943** **RSA NO. 532 OF 2017** **AGAINST THE ORDER/JUDGMENT IN AS 305/2013 OF ADDITIONAL DISTRICT** **COURT, IRINJALAKUDA** **OS 348/2010 OF ADDITIONAL SUB COURT, IRINJALAKUDA** ## **APPELLANT/APPELLANT/DEFENDANT:** DEVALAL, AGED 50 YEARS, S/O.KUMARAN, VANNERIKKATTIL @ ALAKKARAN HOUSE, PERINJANAM VILLAGE & DESOM, KODUNGALLUR TALUK,PIN: 680 686, REPRESENTED BY POWER OF ATTORNEY HOLDER & WIFE SHEEJA DEVALAL. BY ADV SRI.MATHEW KURIAKOSE ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** 1 MOHANAN, AGED 62 YEARS, S/O.SANKARAN, KARUKAPARAMBIL HOUSE, PERINJANAM VILLAGE & DESOM, KODUNGALLUR TALUK,THRISSUR, PIN: 680 686. 2 SARALA, AGED 51 YEARS,W/O.MOHANAN, KARUKAPARAMBIL HOUSE, PERINJANAM VILLAGE & DESOM, KODUNGALLUR TALUK,THRISSUR, PIN: 680 686. BY ADV SRI.G.SREEKUMAR (CHELUR) THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.10.2021, ALONG WITH RSA.533/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A Nos.532 & 533 of 2017 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021 / 6TH KARTHIKA, 1943 RSA NO. 533 OF 2017** **AGAINST THE ORDER/JUDGMENT IN AS 304/2013 OF ADDITIONAL** **DISTRICT COURT, IRINJALAKKUDA OS 250/2011 OF ADDITIONAL SUB COURT, IRINJALAKKUDA APPELLANT/APPELLANT/PLAINTIFF:** DEVALAL, AGED 50 YEARS, S/O.KUMARAN, VANNERIKKATTIL @ ALAKKARAN HOUSE, PERINJANAM VILLAGE & DESOM,KODUNGALLUR TALUK, PIN: 680 686, REPRESENTED BY POWER OF ATTORNEY HOLDER & WIFE SHEEJA DEVALAL. BY ADV SRI.MATHEW KURIAKOSE ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 MOHANAN, AGED 62 YEARS, S/O.SANKARAN,KARUKAPARAMBIL HOUSE, PERINJANAM VILLAGE & DESOM, KODUNGALLUR TALUK, THRISSUR, PIN: 680 686. 2 SARALA, AGED 51 YEARS, W/O.MOHANAN,KARUKAPARAMBIL HOUSE, PERINJANAM VILLAGE & DESOM, KODUNGALLUR TALUK, THRISSUR, PIN: 680 686. BY ADV SRI.G.SREEKUMAR (CHELUR) THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28.10.2021, ALONG WITH RSA.532/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A Nos.532 & 533 of 2017 3 K.BABU, J . -------------------------------------R.S.A Nos.532 & 533 of 2017 --------------------------------------Dated this the 28[th] day of October, 2021 ## JUDGMENT These two appeals arise from the common judgment and decree dated 28.02.2017 in A.S.Nos.304/2013 and 305/2013 of the Additional District Court, Irinjalakkuda. The appellant herein was the plaintiff in O.S.No.250/2011, the defendant in O.S.No.348/2010 on the file of the Additional Sub Court, Irinjalakkuda. The appellant instituted O.S.No.250/2011 against the respondents to declare that he has acquired the right of easement over plaint 'B' schedule property and for consequential reliefs. Respondents instituted O.S.No.348/2010 seeking a permanent prohibitory injunction against the appellant from widening the 'B' schedule property. 2. The material facts relevant for the adjudication of these appeals are narrated below: 2.1. The appellant is the owner in possession of the plaint schedule property having an extent of 37 ½ cents in Survey No.41/1 R.S.A Nos.532 & 533 of 2017 4 ('A' Schedule property). The respondents own 17 cents of property in survey No.41 ('C' schedule property) lying on the east of Plaint 'A' schedule property. The West Tippu Sulthan road runs in the northsouth direction on the east of plaint 'A' and 'C' schedule properties. 2.2. A piece of land that lies on the south of 'C' schedule property, which forms part of it, is the subject matter of this litigation. 3. The appellant pleaded that he has acquired the right of easement by prescription over this property through continued, open and uninterrupted use of the same for the last 70 years. The appellant has described the disputed property in the plaint as 'B' schedule property having a width ranging from 9 feet to 12 feet and an approximate length of 155 feet. The respondents resisted the claim of the appellant contending that no way as pleaded as 'B' schedule property is in existence and that the appellant has not established right of easement by prescription over it. The respondents further pleaded that the appellant was permitted to use a beaten track over 'B' schedule property to access his R.S.A Nos.532 & 533 of 2017 5 property as a shortcut from the West Tippu Sulthan road. However, according to the respondents, when the appellant made attempt to widen the way, they were constrained to institute a suit for injunction against the appellant. 4. According to the appellant 'B' schedule property was used as a cartable way. Respondents resisted this claim contending that the appellant never used the way as cartable. 5. Both the suits were jointly tried by the Trial Court. Evidence in this case consists of the oral evidence of PWs 1 to 3 and DWs 1 and 2, Exhibits A1 to A11 marked on the side of the appellant and Exhibits B1 and B2 marked on the side of the respondents. Exhibits C1 to C5 series were marked as Court Exhibits. 6. After appreciating the rival contentions the Trial court dismissed O.S.No.250/2011 and decreed O.S.No.348/2010 restraining the appellant and his men from widening the pathway having a width of 3 ½ feet noted by the Advocate Commissioner in Ext.C4 Report. 7. The appellant challenged the common judgment and R.S.A Nos.532 & 533 of 2017 6 decree passed by the Trial court before the First Appellate Court filing A.S.Nos.304/2013 & 305/2013. The First Appellate Court confirmed the findings of the Trial court and dismissed the appeals. Aggrieved by the common judgment of the First Appellate Court in A.S.Nos..304/2013 & 305/2013, which confirmed the judgment and decree passed by the Trial court, the appellant has approached this Court by way of filing these second appeals. 8. On 09.06.2020, this Court admitted these regular second appeals and formulated the following substantial questions of law: - (i) Have not the Courts below erred in arriving at a finding that the appellant failed to prove that he acquired easement right of way by prescription through the plaint 'B' schedule pathway despite the admission of the respondents regarding the user of way and drawing of water pipeline and telephone line by the appellant through that way; and ignoring the commission reports and other evidence available on record including Ext.A6 C.D of the marriage ceremony and the photographs? - (ii) Have not the Courts below erred in non-suiting the appellant for the reason that the appellant might have been using the way through his brothers property, especially in a suit for declaration and injunction based on easement right of way by prescription and ignoring the fact that much prior to the acquisition of property having access of road by the wife of the appellant's brother, the appellant and his predecessors acquired right of easement of way by prescription through the plaint 'B' schedule pathway? - (iii) Whether the Courts below erred in appreciating the pleadings, evidence and the law in its correct perspective. - (iv) Whether the Courts below erred in passing a decree against the appellant from widening the pathway despite the fact that the respondents/plaintiffs did not mention the width of the pathway anywhere in the plaint. R.S.A Nos.532 & 533 of 2017 7 9. The learned counsel for the appellant contended that the appellant could establish that he has acquired the right of easement by prescription over 'B' schedule property. The learned counsel relying on Maniyan Krishnan v. Nanukuttan (1986 KHC 47) contended that where there is a finding to the effect that the appellant was using a portion of plaint 'B' schedule property as a way openly and peaceably to the knowledge of the respondents the presumption would be that he had been using the same as of right, and so the First Appellate Court and the Trial Court went wrong in declining the relief of declaration as prayed for in the original suit. The learned counsel also contended that the findings of facts by the Lower Appellate Court as well as the Trial court are perverse in so far as the Courts held that the appellant failed to establish right of easement by prescription over 'B' schedule property. 10. The learned counsel for the appellant also contended that the appellant is entitled to declaration of right of easement by prescription over the portion of 'B' schedule property having a width of 3 ½ feet, the use of which by him was found by the Trial R.S.A Nos.532 & 533 of 2017 8 Court. 11. Per contra, the learned counsel for the respondents contended that the appellant failed to establish a legal right over the plaint 'B' schedule property, and hence he is not entitled to any of the reliefs prayed for. The learned counsel further contended that the findings of facts by the First Appellate Court and the Trial court require no interference. 12. The appellant claims that he is entitled to a declaration of easement right over 'B' schedule property. 13. The challenge of the respondents is that no way as claimed by the appellant is in existence. 14. The appellant gave evidence as PW1 in support of his pleadings. From the side of the appellant PWs 2 and 3 were also examined. PW2 is a neighbouring property owner. He would depose that the neighbours of his land used to walk through his property and that he had not objected to such use and the practice prevailing in the locality is that the people used to walk through the property of their respective neighbours. PW2 also gave evidence R.S.A Nos.532 & 533 of 2017 9 that the appellant and his ancestors were using 'B' schedule property as a way to have ingress and egress to 'A' schedule property. Respondent No.2 gave evidence as DW1. She gave evidence in support of the pleadings of the respondents, to the effect that, the appellant has never used 'B' schedule property as of right. 15. The Advocate Commissioner who prepared Ext.C1 to C3 was examined as PW3. The Commissioner, who prepared Ext.C4 series was examined as DW2. 16. While examined as PW1, the appellant admitted that coconut trees and other trees were found standing in plaint 'B' schedule property. However, the specific case of the respondents is that they only permitted the appellant to walk through 'B' schedule property as a shortcut to have access to the West Tippu Sulthan road. 17. The conditions necessary for the acquisition of right of easement by prescription are (1) there must be pre-existing easement which must have been enjoyed by the dominant owner; R.S.A Nos.532 & 533 of 2017 10 (2) the enjoyment must have been peaceable; (3) the enjoyment must have been as an easement; (4) the enjoyment must have been as of right;(5) the right must have been enjoyed openly; (6) the enjoyment must have been for a period of 20 years; and (7) the enjoyment for 20 years must have been without interruption. 18. Unless all these ingredients are proved no right of easement can accrue to the owner of a dominant heritage. Ordinarily, a Court can find a case and decree the suit only based on the pleadings of the parties. Where the claim is for an easement right, it is all the more necessary that the pleadings should be specific and precise. There is reason therefore. 'Easement' is a precarious and special right. The right of easement is one which a person claims over a land which is not his own. Since the right of easement is a precarious and special right claimed over the land of another, it is highly essential that the pleadings must be precise. [Vide: Ibrahimkutty v. Abdul Rahumankunju (1992 (2) KLT 775)] . 19. In Justiniano Antao and others v. Smt. Bernadette B. Pereira (AIR 2005 SC 236) , the Apex Court held that to establish a R.S.A Nos.532 & 533 of 2017 11 right by way of prescription one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. In addition, there should be categorical pleadings that since what date to which date one is using the access for the last 20 years. In order to establish the right of prescription to the detriment of the other party, one has to aver specific pleadings and categorical evidence. 20. In Chapsibhai Dhanjibhai Danad v. Purushottam – (AIR 1971 SC 1878) following the principle in Raychand Vanmalidas v. Maneklal Mansukhbhai (AIR 1946 Bom 266) the Supreme Court held that as easement by prescription under Sections 12 and 15 of the Easements Act is in fact an assertion of a hostile claim of certain rights over another man's property and in order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to exercise that hostile claim on a property which is not his own and where no such consciousness is proved he cannot establish a prescriptive acquisition of the right. 21. The Apex Court in Krishna Narain Agarwal v.Carlton Hotel R.S.A Nos.532 & 533 of 2017 12 (P) Ltd., (1969 SCD 1105) has laid down that to establish the claim under Sec.15 of the Easements Act, continuous user for 20 years as of right to do the act complained of in assertion of a title, peaceably and openly must be made out. 22. The Trial Court found that the appellant failed to establish the existence of way as described in the plaint ('B' schedule way), and hence he is not entitled to a declaration as prayed for. The Trial Court also held that the respondents are entitled to get a prohibitory injunction against the appellant from widening the existing way having a width of 3 ½ feet. The First Appellate Court confirmed the said findings. 23. This Court in Shiva Temple of Poovathur Panniprayar Devaswom Board v. Parameswaran Pillai and others [2010 (2) KHC 722)] has held that, persons, including adjacent property owners, walking hither and thither along an open property would not accrue any right by such walking so long as such usage is without any right, especially when such properties are left open without fencing and such user would neither reduce the right of the title holder nor R.S.A Nos.532 & 533 of 2017 13 entitle the respondents to get an injunction as sought for. 24. The First Appellate Court noted the existence of a pathway on the eastern side of the property of the brother of the appellant, who is having property on the south of plaint 'A' schedule property as a probability to arrive at a conclusion that the appellant failed to establish right of easement by way of prescription over plaint 'B' schedule property. 25. The learned counsel for the appellant, relying on the admission of the respondents regarding the user of the way by the appellant and drawing of water pipe line and telephone line through the way contended that, the Courts below went wrong in recording the finding that he failed to acquire right of easement by prescription over plaint 'B' schedule property. 26. It is the specific case of the respondents that as a shortcut they permitted the appellant to use a portion of 'B' schedule property as a beaten track to access the eastern road. 27. The learned counsel for the appellant heavily relied on Maniyan Krishnan v. Nanukuttan (supra) to contend that evidence R.S.A Nos.532 & 533 of 2017 14 of user of the way by the appellant would presume that he had been using the same as of right, and hence, the appellant is entitled to the right of easement by prescription over 'B' schedule property. Where there is concrete evidence as a fact in issue, there is no question of applying the rule of presumption. 28. I have carefully examined the pleadings, evidence and other materials placed before the Court. The First Appellate Court re-appreciated the pleadings and evidence and held that the plaintiff failed to establish the existence of 'B' schedule property as pleaded. 29. The facts considered in the Maniyan Krishnan (supra) are different from the facts of the present case. In the case on hand, the respondents pleaded that the user was permissive in character. This is a case in which the appellant failed to establish the existence of 'B' schedule property as a way and the user of the same as of right. The appellant has failed to establish the requirements for establishing the right of easement by prescription over the same. So, the ratio in the Maniyan Krishnan cannot be R.S.A Nos.532 & 533 of 2017 15 pressed into service in the instant fact situation. 30. The learned counsel further contended that the observation of the Courts below that the appellant must have used the eastern pathway now in existence through the property of his brother is against evidence, and it is contended that the way was in existence after the partition of the 'tharavadu' properties of the appellant and other members of his family, which took place in 2000. Such observation of the Courts below was one of the probabilities for entering into a conclusion that the appellant failed to establish the right of easement by prescription over 'B' schedule property. 31. In a claim for easement in respect of a defined property, it is the burden of the party who makes the claim, to establish with specific pleadings and evidence that he has acquired the right of easement by prescription over the same. In the instant case, the First Appellate Court and Trial Court after appreciating the pleadings and evidence, held that the appellant failed to establish the existence of 'B' schedule property as a way and user of the R.S.A Nos.532 & 533 of 2017 16 same during the statutory period as of right openly, peaceably as an easement without interruption. This Court finds no reason to interfere with the said finding of facts. The questions of law are answered, hence, against the appellant. 32. The learned counsel for the appellant further contended that as there is evidence regarding the existence of pathway having an average width of 3 ½ feet, the appellant may be permitted to use the same as a cartable way for riding two-wheelers. The learned counsel for the respondents opposed that contention and submitted that as the appellant failed to establish any manner of right over any portion of 'B' schedule property, granting of such permission will in effect nullify the decree passed by the Courts below. The Regular Second Appeals lack merit. Hence, Regular Second Appeals stand dismissed. Sd/K.BABU, JUDGE KAS