Gomathy v. T.K. Syamala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932** ## **SA.No. 1028 of 1996(E)** **---------------------------------** ## **AS.55/1995 of I ADDL. SUB COURT, TRIVANDRUM OS.2489/1990 of PRL. MUNSIFF COURT, TRIVANDRUM** **....................** ## **APPELLANTS/APPELLANTS/DEFENDANTS 2 AND 3:** **----------------------------------------------------------------------------** **1. GOMATHY, W/O.LATE S. KARUNAKARAN, RESIDING AT MADATHUVILA VEEDU, MADATHUVILAKAM VILLAGE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.** **2. K. KALESAN, S/O.LATE S. KARUNAKARAN, RESIDING AT DO. DO.** - **BY ADV. SRI.B.KRISHNA MANI, SRI.V.PREMCHAND.** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** **------------------------------------------------------------------** **1. T.K. SYAMALA, RESIDING AT MELEPLAPATTI VEEDU, T.C.40/692, KURIYATHI, MANACAUD, THIRUVANANTHAPURAM.** **2. M.K. GOPAKUMAR, RESIDING AT MADATHIVILA VEEDU, MADATHUVILAKOM VILLAGE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.** **3. M.K. UDAYAKUMAR, RESIDING AT DO. DO.** **4. T.K. REMA, DO. DO.** **BY ADV. SRI.G.S.REGHUNATH, SRI.MOHAN JACOB GEORGE, SRI.M.RAMASWAMY.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2010,THE COURT ON 09/07/2010 DELIVERED THE FOLLOWING:** **rs.** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 1028 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of July, 2010. ## **JUDGMENT** Aggrieved by the concurrent findings against them, defendants 2 and 3 before the court below have come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. One Mandakadan owned 65 cents of property. He had two sons, i.e. Kuttan and Subramanian. After the death of Mandakadan, as per Ext.A1 Kuttan, Subramanian and their mother partitioned the properties between themselves. The share of Kuttan was later divided into five shares shown as A, B, C, D and E as per Ext.A3 by the plaintiffs, who are the children of Kuttan. A sketch of the allocation of properties is appended to Ext.A3. Since the partition evidenced by Ext.A1 dated 20.10.1959, the plaintiffs' predecessor in interest as well as the plaintiffs have been using the plaint C schedule S.A. 1028/1996. 2 pathway to gain access to their properties. It so happened that the first defendant, who is residing on the western side of the property owned by the plaintiffs, purchased C schedule pathway from Subramanian, the brother of the predecessor in interest of the plaintiffs. Later on, the predecessor in interest of the plaintiffs assigned plaint B schedule property to the first defendant reserving the right to use B schedule as a pathway by the vendor also of the first defendant. Thus the plaintiffs claim that they are entitled to use plaint B schedule and C schedule pathways to gain access to their properties. While they set up a prescriptive right of easement to use C schedule pathway, as regards plaint B schedule pathway, they rely on a grant. The allegation is that when the plaintiffs tried to lay pipe line through plaint B and C schedule properties, the first defendant obstructed them. It is stated that he has no right to do so. Apprehending further trouble from the defendants, the suit was laid. 3 S.A. 1028/1996. 3. The first defendant, though had entered appearance, died before filing the written statement and defendants 2 and 3 were brought on the party array. They contested the suit. They denied that the plaintiffs had any manner of right over plaint B and C schedule properties. It belongs absolutely to the defendants. They contended that the plaintiffs have alternative means of access to the northern side of their properties. They have direct access, according to the defendants, to the public lane on the north. Even if any right was conferred on the plaintiffs to use plaint B and C schedule properties as pathway that was only a licence. Assuming that they have a right of way, they cannot burden plaint B and C schedule properties more than necessary. On the basis of these contentions, they 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 and 2 and the documents marked as Exts. A1 to A5 S.A. 1028/1996. 4 from the side of the plaintiffs. The defendants had D.W.1 examined. Ext.C1 is the commission report. 5. On an evaluation of the evidence in the case, the trial court came to the conclusion that as far as plaint B and C schedule pathways are concerned, the plaintiff had acquired prescriptive right of easement and granted a decree in favour of the plaintiffs. 6. The defendants took up the matter in appeal as A.S. 55 of 1995. The lower appellate court modified the decree and dismissed the appeal. The lower appellate court felt that while the plaintiffs enjoyed prescriptive right of easement over plaint C schedule property, they had only a right of way through plaint B schedule property. The rest of the decree of the trial court was confirmed. 7. This appeal arises from the judgments and decrees of the courts below. 8. The following questions of law are seen formulated in the Memorandum of Second Appeal: S.A. 1028/1996. 5 _“I. When it is clear that Ext.A1 partition deed does not specify any pathway to plaint A schedule was the courts below justified in declaring a prescriptive easement right in respect of C schedule?_ _II. When it has been clearly found by the Appellate Court that the plaintiffs cannot claim any pre-existing easementary right through plaint B and C schedule, was the appellate court justified in decreeing the suit in respect of C Schedule.?_ _III. Is it not clear that recitals in Ext.A2 will not confer any easement right to the plaintiffs since the same is only a licence?_ _IV. When it is clear that the plaintiffs have failed to prove a clear cut pathway through the plaint B and C schedule property, were the courts below justified in decreeing the suit?_ _V) When the claim of the plaintiffs is that they are entitled to get an easement of way as necessity and when the same has been rejected by the appellate court, was the appellate court justified in allowing a prescriptive easement right in respect of C schedule?_ S.A. 1028/1996. 6 _VI) When the pleadings in the plaint are not specific, is the plaintiff entitled to claim any right?”_ 9. The main argument advanced by the learned counsel for the appellants is that the plaint contained inconsistent pleadings. The plaint averments show that a prescriptive right of easement as well as easement by necessity are claimed. So also easement by way of grant. According to learned counsel, as the pleadings are not definite and precise, it has caused a lot of prejudice to the defendants. The defendants were unaware of the case they had to meet and the courts below have not adverted to this aspect at all. Learned counsel appearing for the appellants placed considerable reliance on the decision reported in **Ibrahimkutty v. Abdul Rajumankunju** (1992(2) K.L.T. 775). It was also contended that on the facts of that case easement by necessity does not arise. The courts below have not appreciated the evidence in the proper S.A. 1028/1996. 7 perspective and they have not looked into the pleadings and the judgments are therefore unsustainable. 10. Learned counsel appearing for the respondents on the other hand pointed out that a lot of confusion is caused due to commission report, which is not correct. A reading of the plaint would clearly show that five sharers as per Ext.A3 partition deed dated 1.11.1988 claimed that they are entitled to use plaint B and C schedule properties as pathway to gain access to their respective properties. Ever since the partition in the year 1959, the plaintiffs as well as their predecessors in interest have been using plaint C schedule property as a pathway to gain access to plaint A schedule property. After the property was partitioned as per Ext.A3, when the first defendant purchased one cent, i.e. Plaint B schedule from the predecessor in interest of the plaintiffs for using it as a way, the predecessor took care to see that the right to use one cent sold to the first defendant as a pathway was reserved for the use of plaintiffs also. There is no confusion in the S.A. 1028/1996. 8 pleadings and the pleadings are very clear and precise. The plaintiffs were resting their claim on easement by prescription as far as plaint C schedule is concerned and easement by grant as far as plaint B schedule is concerned. Learned counsel appearing for the respondents contended that there may not have been a proper appreciation of the facts in the case and the evidence by the courts below. But nevertheless ultimately the conclusion drawn is just and proper. It is therefore contended that the appeal be dismissed. 11. Most of the facts are not in dispute. That the defendants owned property on the western side of the plaintiffs' property is admitted. Plaint B and C schedule are pathways. They run along the southern side of plaint A schedule properties. In fact plaint A schedule property consists of five items shown as A to E as per Ext.A3 partition deed. E schedule property in Ext.A3 is situated on the extreme northern side. A pathway has been laid by the sharers under Ext.A3 to have access to the properties set S.A. 1028/1996. 9 apart to them along the eastern side of plaint A schedule properties. That opens into the road on the southern side. 12. The commission report does not appear to be correct. B schedule shown in the report is actually the B schedule pathway described in the plaint. A lot of confusion is created by the commission report and rough plan in appreciating the facts of this case. However a close reading of the plaint will clearly show that the commissioner has not properly understood the case put forward by the parties and therefore his plan is not acceptable. 13. It is true that in the decision reported in **Ibrahimkutty's case** it has been held that the plaintiffs have to be definite and the plea has to be precise regarding easement. In the plaint in that case, it would appear that the plaintiffs did not specify the nature of right of easement and made a general statement that he is entitled to easement right. This court observed that, that may not be sufficient and the plaintiff has has to precisely state what exactly the nature of right claimed, i.e. whether easement S.A. 1028/1996. 10 by necessity, easement by prescription or easement by grant. 14. It is true that the plaintiffs have averred in the plaint that plaint B and C schedule are the only means of access to their properties and they have been using plaint C schedule for a long time. The claim that this is the only pathway has to be understood in the context that they have no other means of access and it is not a claim for easement by necessity as such. It is only to show that if the right claimed is denied, they will not have access to their properties. No where it is seen averred in the plaint that the easement claimed with regard to B and C schedule properties is made on the basis of severance of tenements. In fact the predecessor of the plaintiffs as well as the plaintiffs have been using C schedule pathway from the date of Ext.A1 onwards to reach their properties, which was divided among them as per the partition deed of 1988. In fact B and C schedule pathways run along southern boundary of A schedule properties and the property owned S.A. 1028/1996. 11 by Subramanian. B schedule shown in the commission report is wrong. Going by the above facts, it can be seen that the principle laid down in the decision cited by the learned counsel for the appellants does not apply to the facts of the case. 15. It has been clearly averred in the plaint that as far as plaint C schedule is concerned, what is claimed is prescriptive right of easement for the reason that the plaintiffs as well as their predecessors have been using the pathway to gain access to their properties from 1959 onwards till 1988, and thereafter when Kuttan's legal heirs partitioned the properties. 16. There is a lot of confusion created by the judgments of the courts below. It is not discernible from the orders what is exactly the nature of the claim considered in favour of the plaintiffs. 17. Whatever that be, a proper understanding of the plaint schedule and the case put forward by the respondents, will show that what is claimed is easement by S.A. 1028/1996. 12 prescription as regards plaint C schedule property, and easement of grant as far as plaint B schedule is concerned. It is not as if there are inconsistent pleadings in the plaint. The courts below should have taken some pains to understand the case in the proper perspective. A reading of the judgment of the trial court will show that the trial court was not sure as to what is the nature of the claim put forward by the plaintiffs. Be that as it may, the fact remains that the plaintiffs have succeeded in establishing their rights over plaint B and C schedule properties. The result is that, this appeal is without merits and it is only to be dismissed. I do so. There will be no order as to costs. **P. BHAVADASAN, JUDGE** sb.