K.P. Paul v. Thresyamma

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 SA.No. 812 of 1999(E) --------------------AS.68/1997 of III ADDL.SUB COURT, ERNAKULAM OS.636/1994 of II ADDL.M.C., ERNAKULAM .................... ## APPELLANT/RESPONDENT/PLAINTIFF: ------------------ K.P.PAUL, S/O.PETER, AGED , KOMAROTH HOUSE, VALLARPADAM DESOM, MULAVUKAD VILLAGE BY ADV. SRI.JAIJI ITTEN ## RESPONDENT/APPELLANT/DEFENDANT: -------------------- THRESYAMMA, W/O.RAPHEL, AGED , ITTIKUNNATH HOUSE, VALLARPADAM DESOM, MULAVUKAD VILLAGE. ADV. SRI.T.B.THANKAPPAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rkc ## **P.BHAVADASAN, J.** ------------------------------------SA No.812 of 1999-E ------------------------------------Dated this the 28[th] day of January 2011 ## Judgment The plaintiff, who was non-suited by the lower appellate court, is the appellant. The parties and facts are hereinafter referred to, as they are available before the trial court. 2. The plaintiff obtained kudikidappu rights as per Ext.A1 dated 21.05.1988. According to the plaintiff, even before obtaining the kudikidappu right, he had been staying in the said property and had been using plaint B schedule pathway, which runs through the property of the defendant, for more than 80 years and that is the only way for ingress and egress to his property. Complaining that the defendant was trying to obstruct the use of the pathway which runs through his property, which is shown as B schedule, the suit was laid. SA 812/99 2 3. The suit was resisted by the defendant, pointing out that the plaintiff had no right to use any portion of the property owned by him, as a pathway. The plaintiff has other means of access to the outside world and therefore, it was pointed out that the plaintiff has no manner of right to use plaint B schedule pathway. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 to 3 and exhibits marked as Exts.A1 and A2 from the side of the plaintiff. The defendants had DW1 examined and Exts.B1 and B2 marked. Exts.C1 and C1(a) commissioner's report and plan were also marked. 5. The trial court, on an evaluation of the materials before it, found in favour of the plaintiff and granted a decree accordingly. The defendant took up the matter in appeal as AS No.68/97. The appellate court, on an independent consideration of the evidence on record, found that the necessary ingredients to claim prescriptive right of easement have not been established and therefore, SA 812/99 3 allowed the appeal and non-suited the plaintiff. Hence the second appeal. 6. Notice is seen issued on the following questions of law raised in the second appeal : - 1.Whether the lower appellate court is justified in depriving right of easement in the B schedule pathway. - 2.Whether the lower appellate court has considered the question as to the question of fact on finding in respect of right of easement. - 3.Whether it was proper to decide in favour of the respondent without giving due regard to the oral evidence and in the absence of best available evidence ? 7. The learned counsel for the appellant contended that the lower appellate court was not justified in allowing the appeal and non-suiting the plaintiff. It is pointed out that the commissioner's report is clear to the effect that there exists a way as alleged in the plaint and that evidence was sufficient to show that the plaintiff had been using the pathway for more than the statutory period SA 812/99 4 required to attract the prescriptive right of easement. It was specifically stated in the plaint that what is claimed is prescriptive right of easement. The learned counsel for the appellant contended that the judgment and decree of the lower appellate court are not sustainable in law or on facts. 8. Per contra, the learned counsel for the respondent contended that the plaintiff obtained kudikidappu rights in 1988, which means that the dominant tenement came into existence in 1988. Attention was drawn to the fact that the plaintiff had no case that the landlord, from whom he claimed kudikidappu rights, had been using the plaint schedule pathway. The learned counsel went on contending that even assuming that the plaintiff might have been using the property of the defendant, it does not confer on him any right to use the pathway. Accordingly, it is contended that the lower appellate court has addressed to the issues in the proper perspective and has come to the right conclusion and therefore, no interference is called for with the findings of SA 812/99 5 the lower appellate court. 9. On going through the pleadings and evidence in the case, there seems to be considerable force in the submissions made by the learned counsel for the respondent. In the decision reported in _**Ibrahimkutty v. Abdul Rahumankunju**_ (1992(2) KLT 775), it has been observed that the claim of easement is a precarious right which interferes with the absolute right of ownership and possession of the property of a person. It has been held that the nature of the right claimed must be specified with ingredients of the same so that the other side will be able to know the case he has to meet. In the decision reported in _**Badariya Madrassa Committee v. Antony Robert**_ (2006(20 KLT 636), wherein it is held as follows : “Apart from stating that the way has been used by prescription, there is no specific pleading involving all the seven ingredients of S.15 of the Act, i.e., (1) There must be pre-existing SA 812/99 6 easement which must have been enjoyed by the dominant owner ; (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 twenty years and (7) The enjoyment for 20 years must have been without interruption.” 10. As rightly noticed by the lower appellate court, the kudikidappu right was obtained by the plaintiff only in the year 1988. Till then, his stay in the property obtained as kudikidappu was permissive in character and he has no case that his landlord had been using the B schedule pathway. As per the provisions of the Kerala Land Reforms Act, the landlord from whom kudikidappu rights are obtained, should provide a pathway also. In the case on hand, the commissioner's report shows that the plaintiff has got other means of access to the outside world. SA 812/99 7 11. The trial court was carried away by the deposition of DW1 that the plaint B schedule pathway is the only means of access for the plaintiff to the outside world. But, that cannot be read in isolation and that cannot, by itself confer any right on the plaintiff to use that pathway. It is trite law that there should be a dominant tenement and a servient tenement owned and possessed by two different persons. To acquire prescriptive right of easement, 20 years of use within two years of the suit, will have to be established. In the case on hand, the plaintiff obtained kudikidappu rights in the year 1988 and the right p user, therefore, could begin only from 1988 onwards. Even assuming that B schedule pathway was being used by the plaintiff before 1988, it was not in the character of a dominant owner. There was no dominant tenement before 1988 at all. It was these aspects, which had persuaded the lower appellate court to interfere with the judgment and decree of the trial court. On a consideration of the materials on record, it is felt that the lower appellate court was fully SA 812/99 8 justified in allowing the appeal and non-suiting the plaintiff. The findings of the lower appellate court are essentially, findings of fact, with which no interference is called for. No substantial questions arise for consideration in this second appeal. The second appeal is devoid of any merits and it is accordingly dismissed. However, there will be no order as to costs. **P.Bhavadasan, Judge** sta SA 812/99 9