K.S.SHAJAHAN, K.S.SHAMEER, K.S.SHABEER v. GIJI JOSE, IRIS JOSE

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 10TH DAY OF OCTOBER 2017/18TH ASWINA, 1939** ## **RSA.No. 1251 of 2013 (G)** **-----------------------AGAINST JUDGMENT & DECREE DATED 28-06-2013 IN AS 1/2011 of SUB COURT, KOCHI-5** **AGAINST JUDGMENT & DECREE DATED 08-10-2010 IN OS 358/2009 of PRINCIPAL MUNSIFF COURT, KOCHI** **APPELLANT(S)/APPELLANTS/DEFENDANTS 2 TO 4 IN THE SUIT:-** ## **-------------------------------------------------------** **1. K.S.SHAJAHAN, AGED 41 YEARS, S/O.K.K.SHERIEF, C.C.2/515, CALVATHY, KOCHI - 682 001.** **2. K.S.SHAMEER, AGED 40 YEARS,** **S/O.K.K.SHERIEF, C.C.2/515, CALVATHY, KOCHI - 682 001.** **3. K.S.SHABEER,AGED 39 YEARS,** **S/O.K.K.SHERIEF, C.C.2/515, CALVATHY, KOCHI - 682 001.** **BY ADV. SRI.M.A.ASIF** **RESPONDENT(S)/RESPONDENTS/PLAINTIFFS IN THE SUIT:-** **--------------------------------------------------** **1. GIJI JOSE, AGED 38 YEARS, W/O.JAISON, ELEMJIKKAL HOUSE, KORASSERY PARAMBU, THOPPUMPADY, KOCHI - 682 005.** **2. IRIS JOSE, AGED 57 YEARS,** - **W/O.JOSE, MALIEKKAL HOUSE, KORASSERY PARAMBU, THOPPUMPADY, KOCHI - 682 005.** **R1 & 2 BY M/S SRI.BABU CHERUKARA** **SMT.ROSAMMA MATHEW** **SRI.P.A.SALIM** **SRI.ANZAR BASHEER SRI.P.ANTO THOMAS SRI.K.S.GIREESAN** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **B. KEMAL PASHA, J.** ................................................................ R.S.A. No. 1251 of 2013 ............................................................... Dated this the 10[th] day of October, 2017 ## **J U D G M E N T** Challenging the concurrent findings entered by the Munsiff's Court, Kochi in O.S.No.358/2009, followed by those of the Subordinate Judge's Court, Kochi in A.S.No.1/2011, defendants 2 to 4 in the suit have come up in second appeal. 2. The suit is one for mandatory injunction as well as permanent prohibitory injunction. The mandatory injunction has been sought for, for the removal of E schedule compound wall constructed at the eastern extremity of plaint C schedule pathway. Perpetual injunction has been sought for against any sort of obstruction to the user of the plaint C schedule pathway by the plaintiffs, their family members etc. 3. The case of the plaintiffs is that they have R.S.A.1251 of 2013 -: 2 :- prescriptive right of easement over plaint C schedule pathway. Sufficient pleadings are incorporated in the plaint with regard to the said right of easement by prescription. According to the plaintiffs, with a view to obstructing the user of the plaint C schedule pathway by the plaintiffs, the defendants constructed plaint E schedule compound wall at the eastern extremity of the plaint C schedule item thereby blocking the entry of the plaintiffs into their property. Further, it has also claimed that the defendants had put up a gate at the western extremity of plaint C schedule pathway which opens to the national highway. According to the plaintiffs, the plaint C schedule item has a width of one metre at its eastern extremity and 90 cms. at its western extremity. 4. The defendants contended that the plaintiffs are not entitled to claim any easement by prescription. It has been contended that at first the plaintiffs had treated the plaint C schedule item as a public pathway and they had approached the Sub Divisional Magistrate for getting the R.S.A.1251 of 2013 -: 3 :- obstructions removed under the provisions of the Code of Civil Procedure. There it was held that the pathway in question was not a public pathway; whereas, it was a private pathway. Thereafter, the present suit was filed. According to the defendants, therefore, the plaintiffs are not entitled to claim any right of easement by prescription. 5. The trial court decreed the suit in terms of the plaint. Aggrieved by the judgment and decree, the defendants filed A.S.No.1/2011 before the lower appellate court. The lower appellate court also concurred with the findings entered by the trial court, and dismissed the appeal. 6. This Second Appeal has been admitted by this Court on the following substantial questions of law formulated in the memorandum of appeal: _“(1) Whether the trial court was justified in allowing the suit and the first appellate court in confirming the judgment and decree of the trial court in granting the prohibitory and mandatory injunction in a_ R.S.A.1251 of 2013 -: 4 :- _suit filed without seeking a declaration for prescriptive easement and without raising an issue to decide on the prescriptive right?_ _(2) Whether the trial court was justified in allowing the suit and the first appellate court in confirming the judgment and decree of the trial court when even according to the admitted case of the plaintiffs they have 15 years 3 months and 2 days of uninterrupted enjoyment alone when 20 years uninterrupted enjoyment is required to perfect the right of prescriptive easement?_ _(3) Are the trial court and first appellate court justified in holding in favour of the respondents after entering a finding that the plaintiffs do not have a definite case as to the right claimed and it is fatal when admittedly the plaintiffs were prosecuting the suit before the court below claiming the pathway as prescriptive easement, when simultaneously before the Secretary Corporation of Kochi, they were contesting_ R.S.A.1251 of 2013 -: 5 :- _the same C schedule pathway as a public pathway?_ _(4) Is the first appellate court justified in holding that Kudikidappu right is purchased by the predecessors of the appellants retaining the easement right of the landlord?_ _(5) Is the first appellate court justified in holding that C schedule pathway is the right of way mentioned in Ext.A8(a)?”_ 7. Heard the learned counsel for the appellants and the learned counsel for the respondents. 8. The learned counsel for the appellants has argued that when the plaintiffs had initially claimed the right over the plaint C schedule pathway by treating it as a public pathway, they cannot claim any right of easement by prescription over the pathway under Section 15 of the Indian Easements Act. It has been further argued that as per Ext.A8(a) purchase order passed in favour of the defendants for purchase of _kudikidappu_ in the year 1993, it R.S.A.1251 of 2013 -: 6 :- was specifically ordered that none of the parties should obstruct the plaint C schedule pathway. The vendor of the plaintiffs is the 2[nd] respondent in Ext.A8(a). It is argued that till the purchase certificate, plaint D schedule property belonged to the said 2[nd] respondent and therefore, he could not have claimed any right of easement over that portion of his own property. In that sense it has been argued that even if prescriptive right of easement is claimed, it could be claimed only for the period from 1993 onwards, and in such case there was no matured right of easement as on the date of suit. 9. _Per contra_ , the learned counsel for the respondents has argued that in the suit as well as during the trial, the plaintiffs had no case that the pathway in question is a public pathway. It has also been argued that the plaint C schedule pathway was transformed into a concrete pathway by the Municipality and therefore, the plaintiffs had an impression that the earlier pathway was transformed into R.S.A.1251 of 2013 -: 7 :- a public pathway by spending public money, and it was therefore, they had approached the learned Sub Divisional Magistrate, when obstruction was caused to the said pathway. 10. The learned counsel for the appellants has invited the attention of this Court to the decision in S.A. No.765/2000 rendered by a learned Single Judge of this Court in _**M.N. Gopalan v. Saramma George**_ wherein it was held that the claim of public pathway and the claim of prescriptive right of easement cannot co-exist. In this case, the facts are not similar to those in the decision noted _supra_ . Here in this particular case, admittedly a pathway is there and the same is scheduled as plaint C schedule item in the sketch prepared by the Commissioner. It has been shown that the plaint schedule pathway passes through the southern side of the plaint B schedule pathway belonging to the plaintiffs in its entirety and it terminates at the western boundary of the plaint A schedule property. If, as a matter of R.S.A.1251 of 2013 -: 8 :- fact, the plaint C schedule pathway was not meant for the plaintiffs also, it should have ended at the beginning of plaint D schedule property. When the said pathway proceeds further towards east and ends at the western boundary of plaint A schedule, it has to be understood that the pathway was being used by the persons holding plaint A schedule property also. 11. It is true that the plaintiffs had to approach the Sub Divisional Magistrate with proceedings under the Code of Criminal Procedure when obstruction was caused to the pathway. As rightly revealed by PW1 in cross examination, they thought that the pathway was transformed into a public pathway because of the fact that the Municipality had maintained plaint C schedule pathway and made it as a concrete pathway by using public funds. Whatever it is, the plaintiffs have a specific case that they had been making use of the pathway as of right in continuation of the very same right exercised by the predecessors-in-interest of the R.S.A.1251 of 2013 -: 9 :- property. In such a situation, when the Municipality had also entered the pathway and maintained the pathway, it cannot be said that the plaintiffs have lost their right to make use of the pathway through a right of easement by prescription. 12. In these circumstances, it cannot be said that the plaintiffs have to be non-suited merely because they had exercised their right to approach the Sub Divisional Magistrate for the removal of obstructions from the pathway which is being maintained by the Municipality. Admittedly, such a pathway exists even now. 13. Regarding the other argument that the right of easement by prescription could commence only in the year 1993 because of Ext.A8(a), it has to be noted that the plaint D schedule property, of which the vendor of the defendants was given purchase certificate, was in his possession and enjoyment even prior to 1.1.1970. Therefore, it is idle to contend that the 2[nd] respondent in Ext.A8(a) had the said property with him. No such property was with him; whereas, R.S.A.1251 of 2013 -: 10 :- it was with the _kudikidappukaran_ . Therefore, one cannot contend that the 2[nd] respondent in Ext.A8(a) could not have claimed right of easement by prescription through that portion of plaint C schedule passes through the southern extremity of plaint E schedule item. 14. From all the above, it has clearly come out that the courts below have correctly dealt with the matters in controversy in the suit. The evidence was appreciated in its correct perspective. There is absolutely nothing to interfere with the concurrent findings entered by the courts below. This second appeal is devoid of merits and is only to be dismissed, and I do so. In the result, this RSA is dismissed. There is no order as to costs. All the interlocutory applications in this appeal are closed. ## **Sd/- B. KEMAL PASHA, JUDGE.** ul/- // true copy // P.S. to Judge.