Kuriakose v. Chellamma and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** ## **WEDNESDAY, THE 1ST DAY OF FEBRUARY 2012/12TH MAGHA 1933** ## **RSA.No. 1047 of 2010 ( )** ## **------------------------** **AS.30/2009 of SUB COURT, PERUMBAVOOR OS.342/2006 of MUNSIFF COURT, PERUMBAVOOR** **APPELLANT(S)/APPELLANT(APPELLANT/PLAINTIFF)/PLAINTIFF: -----------------------------------------------------** **KURIAKOSE, AGED 63 YEARS,S/O.PAILY, EMBASSERY HOUSE, IRINGOLE KARA, PERUMBAVOOR VILLAGE.** **BY ADVS.SRI.DINESH R.SHENOY** **SRI.MAHESH MENON** ## **RESPONDENT(S)/RESPONDENT/DEFENDENTS:** **-------------------------------------** **1. CHELLAMMA, AGED 73 YEARS, W/O.BHASKARAN NAIR,** **PANAMPILLY HOUSE, IRINGOLE KARA PERUMBAVOOR VILLAGE, PIN - 683548.** **2. BINDHU, AGED 37 YEARS, D/O.CHELLAMMA PANAMPILLY HOUSE, IRINGOLE KARA PERUMBAVOOR VILLAGE, PIN - 683548.** **3. GOPAN, AGED 43 YEARS, H/O. BINDU, PANAMPILLY HOUSE, IRINGOLE KARA PERUMBAVOOR VILLAGE, PIN - 683548.** **R1-R3 BY SRI.G.RAJAGOPAL** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RK** **RSA.No. 1047 of 2010 ( ) ------------------------** ## **APPENDIX** ## **PETITIONERS ANNEXURES:** **ANN.A1: COPY OF THE COMPLAINT DATED 29/8/2010 ANN.A2: COPY OF THE COMPLAINT DATED 1/09/2010 FILED BEFORE THE SUB INSPECTOR OF POLICE TOGETHER WITH RECEIPTS ANN.A3: PHOTOGRAPHS OF THE OBSTRUCTION CREATED IN THE PATHWAY DATED 03/09/2010 ANN.A3(a): PHOTOGRAPHS OF THE OBSTRUCTION CREATED IN THE PATHWAY DATED 03/09/2010 ANN.A3(b): PHOTOGRAPHS OF THE OBSTRUCTION CREATED IN THE PATHWAY DATED 03/09/2010 ANN.A3(C): PHOTOGRAPHS OF THE OBSTRUCTION CREATED IN THE PATHWAY DATED 03/09/2010** ## **RESPONDENTS ANNEXURES: NIL** ## **/TRUE COPY/** **PA TO JUDGE** **RK** ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------R.S.A. No.1047 of 2010 -------------------------------------Dated this the 1[st] day of February, 2012.** ## **JUDGMENT** Against concurrent finding that appellant/plaintiff has not established his plea of easement by prescription over plaint C schedule way and hence is not entitled to the decree of prohibitory injunction, appellant has preferred this Second Appeal. 2. The following substantial questions of law are framed: i. Whether the lower appellate court did not commit gross error in rejecting the application for amendment of plaint on the ground that valuable “defence” of the defendant would be effected, when a suit filed as on the date of amendment would not have been barred in law and the amendment sought for did not change the nature of the suit, cause of action or relief's in the plaint? ii. Whether the lower appellate court ought not to have allowed the amendment in order to shorten the litigation and to avoid unnecessary, multiplicity of the proceedings? iii. Whether appreciation of evidence by the lower appellate court is not perverse such that no reasonable Tribunal would have arrived at such findings on the pleadings and the evidence adduced in the case? **RSA No.1047/2010** 2 iv. Whether user of a pathway by the son of the owner of dominant tenement would not be sufficient to enable him claim right of easement by prescription, following the principles of law laid down in Narayanan Nair v. Mariamma Kurian (1988 (2) KLT 486)? v. Whether an inchoate right is also not entitled to be protected in a case where peaceful, continuous user of the pathway has been clearly and categorically proved? vi. Whether in the circumstance that plaintiff claims title and possession under his own father and the possession of the father since 1966 is proved to be as per sale deed of 1966, the courts below were right in holding that the possession of the father could not be tacked on to that of the son? vii. whether in a case where both parties have adduced evidence, question of burden of proof does not loose its significance? 3. Plaint A schedule belongs to the appellant as per Exts.A1 and A2, settlement deed Nos.2604 and 2677 of 1990 executed by his father. Plaint B schedule is the property belonging to the respondent and situated on the immediate west of plaint A schedule. Plaint C schedule is the disputed way described as having length of 20 metres and width of 12 feet, originating from the Panchayat road on the west of plaint B schedule and leading to plaint A **RSA No.1047/2010** 3 schedule along northern portion of plaint B schedule. It is the case of appellant that before the Panchayat road was formed into its present state there was a public pathway along that portion which, during 1983 was taken over by the local authority and immediately thereafter, was formed into the road in its present state. It is pleaded by the appellant that he has been using plaint C schedule as of right, without obstruction for more than 20 years and thus has prescribed a right of easement. Alleging attempt on the part of respondents to obstruct user of plaint C schedule, appellant filed O.S.No.342 of 2006 in the Munsiff's Court, Perumbavoor on 16.10.2006. 4. Along with institution of the suit appellant took out emergent commission who inspected the property on the same day and submitted Exts.C1, report and C1(a), sketch. 5. Respondents denied that there is any way as described in plaint C schedule along the northern portion of their property - plaint B schedule. They contended that they got plaint B schedule as per Ext.A4, partition deed of 1998 and Ext.A3, assignment deed of 2005, that the 1[st] respondent and her husband were away at Bangalore until 1998 and some time in the year, 1998 when the 1[st] respondent and husband came to the plaint B schedule, they noticed a gate constructed towards north-western portion of plaint A schedule and opening into the plaint B schedule. Thereon, 1[st] respondent and others constructed a wall in front of the said gate to prevent access to the plaint B schedule. Appellant has never used plaint C schedule for access to plaint A schedule. **RSA No.1047/2010** 4 While so, on 16.10.2006 appellant and his men trespassed into the plaint B schedule and demolished the wall constructed in front of the gate. Regarding that incident, 1[st] respondent and others filed a complaint to the local Police. The same day, after causing the wall to be removed as aforesaid, appellant filed the suit and took out an emergent commission. Respondents further contended that report of the Advocate Commissioner as if there was some way in existence along the northern side of plaint B schedule is not correct and that Advocate Commissioner has not reported regarding indications of removal of wall in front of the gate. 6. Appellant gave evidence as PW1 and examined PWs 2 to 4 to prove the alleged existence of plaint C schedule and its user as pleaded by him. 1[st] respondent gave evidence as DW1. Exts.B1 to B3 are marked on the side of the respondents. Exts.C1 to C2(a) are the reports and sketch/plan submitted by the Advocate Commissioner. 7. Referring to the evidence on record, trial court held that appellant has not proved the requirements to establish a plea of easement by way of prescription and that evidence let in by the appellant did not tally with his pleadings. Trial court dismissed the suit. Appellant preferred A.S.No.30 of 2009 in the Sub Court, Perumbavoor. While that appeal was pending, appellant filed I.A.No.895 of 2009 for amendment of plaint. He filed another application **RSA No.1047/2010** 5 (as learned counsel for appellant submits) to receive in evidence copy of a registered document of the year, 1966 as per which the father of appellant acquired title and possession of plaint A schedule (which was settled in favour of the appellant as per Exts.A1 and A2). Learned Sub Judge while concurring with the finding entered by the trial court as to the claim of easement by prescription, dismissed the applications for amendment and to receive additional evidence. Learned Sub Judge observed that amendment of plaint if allowed at that stage would prejudice the respondents and that appellant could not be permitted to fill up the lacuna in his evidence. Learned Sub Judge also refused to admit in evidence the copy of document of the year, 1966. Hence this Second Appeal. 8. It is contended by the learned counsel for appellant that relevant aspects of the case has not been taken into account by the courts below. It is pointed out by the learned counsel that even though in the plaint it is pleaded that appellant got title and possession of plaint A schedule as per Exts.A1 and A2, settlement deeds of the year 1990 executed by his father, the latter had put the appellant in possession of plaint A schedule even before Exts.A1 and A2. It is contended by the learned counsel that description of eastern boundary of plaint A schedule given in Exts.A1 and A2 showed that property on the east of plaint A schedule was in the possession and enjoyment of the appellant even before Exts.A1 and A2. It is pleaded that having regard to the relationship of the executant of Exts.A1 and A2 and the appellant, claim of appellant that he was **RSA No.1047/2010** 6 put in possession of the suit property even prior to Exts.A1 and A2 ought to have been allowed to be incorporated in the plaint by amendment. That would not in any way prejudice the interest of respondents. It is also argued that the request to adduce additional evidence ought to have been allowed. Learned counsel has placed reliance on the decisions in **Ibrahimkutty v. Abdul Rahumankunju (1992(2) KLT 775), Gaya Prasad v. Pradeep Srivastava ((2001) 2 SCC 604)** and **Rajesh Kumar Aggarwal v.** **Modi (2006 (3) KLT 192)** . It is pointed out by the learned counsel that in the first of the said decisions though, this Court observed that the plaint lacked sufficient plea to raise a claim of easement by way of prescription, on an oral request made by the appellant the case was remitted to the trial court allowing him to seek amendment of the plaint. Learned counsel has also pointed out that it was within the power of first appellate court to allow amendment of the plaint. It is further contended that a perusal of Exts.A3 and A4, prior documents of respondents would show that there was a well-formed way as described in plaint C schedule even during 1998. According to the learned counsel, evidence of PWs 1 to 4 as to the existence of the way even prior to 1998 has not been properly considered by the courts below. It is further contended that though the respondents claimed that on returning from Bangalore to the native place they constructed wall in front of the gate installed by the appellant towards northwest of plaint A schedule, Ext.C1, report of the Advocate Commissioner does **RSA No.1047/2010** 7 not indicate that there was any such wall in existence or, that it was demolished by anybody. It is pointed out by the learned counsel from Ext.C1 that though the 1[st] respondent and her husband were present when the Advocate Commissioner inspected the property no mention was made to the Advocate Commissioner about the appellant and others demolishing the disputed wall in front of the gate, not to say that the report does not give any indication of such demolition. According to the learned counsel, when that case of respondents is found to be not correct, it could be taken that appellant was gaining access to the plaint A schedule through plaint C schedule as he claims. It is contended that in the above situation courts below ought to have found in favour of the plea of easement by way of prescription. 9. It is contended by the learned counsel for respondents that there is no sufficient evidence as to when actually the Panchayat road on the west of plaint B schedule came into existence. According to the learned counsel, evidence let in by PWs 1 to 4 in that regard is contradictory and hence not reliable. It is also contended by the learned counsel that Exts.A3 and A4 do not show that there was any way as described in plaint C schedule, at any rate, extending upto western boundary of plaint A schedule. It is pointed out by the learned counsel that the said documents do not also mention the width of the way left by the parties to Ext.A4, partition deed for the use of respondents to whom plaint B schedule was allotted in that partition. It is pointed out by the **RSA No.1047/2010** 8 learned counsel that going by the plaint averments, user of plaint C schedule by the appellant can only be from 1990 onwards which is not sufficient to prescribe a right of easement under Sec.15 of the Easements Act (for short, “the Act”). Referring to the averments in paragraphs 6 and 7 of the plaint it is contended that even as per the version of the appellant, he started using the disputed way on the strength of an agreement with the 1[st] respondent and her husband and, if that be so, claim of easement by way of prescription cannot stand in view of Explanation I to Sec.15 of the Act. 10. Learned counsel has also referred to me Exts.C1 and C1(a) to contend that no such way as described in plaint C schedule was in existence even as on the date of suit, not to say about the period before that and hence the claim made by the appellant cannot stand. So far as removal of the wall in front of the gate (unauthorisedly) put up by the appellant is concerned, it is argued that in Ext.C1 the Advocate has reported that he found the front portion of the gate levelled up (ത�ര��ക) which justified the contention of respondents that on the morning of 16.10.2006 appellant and his men had removed the wall in front of the gate. Learned counsel has invited my attention to Ext.B3, receipt dated 16.10.2006 issued by the local police for 1[st] respondent preferring a complaint to them alleging that on that day appellant and his men forcibly entered plaint B schedule, threatened 1[st] respondent and others and demolished the wall in front of the gate. Learned counsel pointed out from **RSA No.1047/2010** 9 Ext.C1, that the Advocate Commissioner had seen laterate stones towards the western side of the Panchayat road in front of plaint B schedule. Those, according to the learned counsel are the stones with which the wall was made and which was demolished by the appellant. The further contention raised by the learned counsel is that the request for amendment is highly belated and cannot be allowed as it is for, that is intended to fill up the lacuna in the pleadings. It is pointed out by the learned counsel that evidence let in by the appellant is contradictory to his plea and the attempt is to make the evidence in tune with the amended plaint. It is also pointed out by the learned counsel that the case of appellant that even before Exts.A1 and A2, he was in possession of plaint A schedule cannot be accepted in the light of the recitals in Exts.A1 and A2. 11. Before going into the rival contentions and into the substantial questions of law, it is relevant to refer to the evidence let in by the parties, in short. 12. It is not disputed that the Advocate Commissioner inspected the property on the date of the suit itself - 16.10.2006. In Ext.C1, the Advocate Commissioner has stated that plaint C schedule starts from the tarred Panchayat road on the west of plaint B schedule and at that portion, width of plaint C schedule is 12 ft. On the side of plaint C schedule at the entrance portion the **RSA No.1047/2010** 10 Advocate Commissioner noticed a 20 year old teak tree. On the north of plaint C schedule is a laterate stone wall at a height of 3ft. (which formed the northern boundary of plaint B schedule). At the eastern end of plaint C schedule, there is a gate (put up by the appellant on the north-western boundary of plaint A schedule) having a width of 12 ft. Advocate Commissioner assessed the oldness of that gate as about 10-15 years (as on the date of suit). About 8 ft. west of that gate, Advocate Commissioner found two old stones towards southern side of plaint C schedule (ie. in the plaint B schedule). It is further reported that except those two stones, there was no other circumstances to identify the disputed way as described in plaint C schedule and hence the Advocate Commissioner was not able to assess oldness of the disputed way. It is also stated that there was growth of grass in the portion of plaint C schedule. In continuation of plaint C schedule, the Advocate Commissioner found footpaths in plaint A schedule in between the rubber trees. 13. The Advocate Commissioner was examined as PW4. He stated that he was not able to find any beaten track even through plaint C schedule (ie. along northern side of plaint B schedule) and that there were pits and path-holes in the disputed way portion. He had noticed the front portion of the gate, in the disputed plaint C schedule as levelled up (ത�ര��ക) and, that portion (disputed **RSA No.1047/2010** 11 way) looked like a 'paramba'. The disputed portion was seen swept and levelled. Advocate Commissioner also stated that there was no fixed boundary on the southern side of plaint C schedule. 14. Appellant gave evidence as PW1. His version is that at the place where the Panchayat road is now in existence there was a way in existence even prior to 1979-1980 and steps were taken during 1979-1980 to form a Panchayat road with the assistance of the local people who agreed to surrender land for the said purpose. During 1982-1983, the then existing way was taken over by the Panchayat and a road was formed immediately thereafter. He claimed that the Panchayat road was tarred during 2002-2003. He produced Ext.A9, certificate issued by the local authority to show that the way in existence before the road came into existence was taken over by the local authority during 1982-1983. It is also his case that during 1982-1983, there was some dispute regarding formation of road and thereon the then MLA intervened and settled the dispute. Ext.A10 is the death certificate of the said MLA to show that he expired in the year, 1982. That document is produced to show that the dispute regarding formation of the road was settled even prior to the year, 1982. It is the further version of PW1 that during 1990 he purchased two stage carriages and those vehicles were taken to his house situated in the property belonging to him on the east of plaint A schedule through plaint C schedule. He claimed that even **RSA No.1047/2010** 12 prior to Exts.A1 and A2 by which he got title over plaint A schedule, he was permitted by his father to occupy plaint A schedule and since 1982 onwards he was thus using plaint C schedule. 15. PW2 was a member of the District Panchayat Council. He claimed that he was also involved in the formation of Panchayat road on the west of plaint B schedule during 1979-1980. PW3 is owner of the adjacent property. He was aged 89 years at the time of examination in the trial court. He stated that plaint C schedule was formed immediately after the Panchayat road was formed. He stated that the road was formed about 10-15 years prior to his examination in the trial court but, he was not able to say the period of formation of Panchayat road definitely. He stated that he was aged around 65 years when the Panchayat road was formed (in which case the Panchayat road must have been formed 24 years prior to the examination of PW3 on 23.01.2009). Since the evidence of PW3 did not appear to be convenient to the appellant on all aspects, appellant was permitted to put leading questions to PW3. PW3 stated that the disputed plaint C schedule was not in existence from the date of formation of the Panchayat road and that he thinks that the disputed road was formed sometime after the Panchayat road was formed. The stage carriages belonging to the appellant were taken through the disputed way. He claimed **RSA No.1047/2010** 13 that appellant had put up a gate on the western boundary of plaint A schedule about 10-15 years before the time of his examination. He however denied that respondents had constructed a wall in front of the said gate. 16. 1[st] respondent testified as DW1 and stated that until 1998, herself and husband were staying permanently at Bangalore, they came to the native place sometime in the year, 1998 and then noticed the gate put up by the appellant on the western boundary of plaint A schedule. When the appellant was asked about that, he pacified the 1[st] respondent and others explaining that the gate was put up only on his boundary and there is no reason why the 1[st] respondent and others be worried about that. In view of that statement of appellant, respondents did not proceed in the matter further but, put up a wall across the gate in front of it to prevent access from plaint B schedule to plaint A schedule. She further stated that on 16.10.2006 appellant and his men forcibly entered plaint B schedule and removed the compound wall in front of the gate concerning which she preferred complaint to the local police. 17. For a claim of easement by way of prescription Sec.15 of the Act to be accepted, appellant has to show that he has been using plaint C schedule peaceably, as an easement, without interpretation and continuously for a period of 20 years. Explanation - I to the said provision says that nothing is an enjoyment within the meaning of that Section when the user was in pursuance **RSA No.1047/2010** 14 of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfillment of which it is to cease. 18. With reference to Explanation - I to Sec.15 of the Act, learned counsel for respondents has invited my attention to paragraphs 6 and 7 of the plaint. There, what is pleaded by the appellant is that during 1979-1980, steps were taken for construction of Panchayat road along the west of plaint B schedule, at that time plaint B schedule belonged to the 1[st] respondent alone and 1[st] respondent and her husband refused to surrender any portion of plaint B schedule for formation of the Panchayat road. Thereon an agreement was entered between the appellant, 1[st] respondent, her husband and PW3 as per which 1[st] respondent agreed to surrender land from plaint B schedule for formation of the Panchayat road. As per that agreement, for formation of Panchayat road sufficient land was to be taken from plaint B schedule belonging to the 1[st] respondent. 1[st] respondent was to be compensated by giving to her some land belonging to PW3 on the west and north of the property belonging to the 1[st] respondent. Appellant was to pay certain amount as compensation to PW3 for the land taken from him to compensate the loss suffered by the 1[st] respondent. To compensate appellant paying compensation to PW3, 1[st] **RSA No.1047/2010** 15 respondent agreed to provide a 12 ft. wide way along the north of plaint B schedule belonging to her. As per that agreement, PW3 surrendered land for formation of Panchayat road and appellant gave `1,000/- to PW3 as compensation for half of the land he surrendered to 1[st] respondent (who in turn surrendered land for formation of the Panchayat road. From 1980, appellant used to gain access to plaint A schedule through plaint C schedule formed along northern portion of plaint B schedule. 19. Thus going by the averments in paragraphs 6 and 7 of the plaint it would appear that it is pursuant to an agreement as stated therein that the disputed plaint C schedule was formed, according to the appellant, sometime during 1980. Now the question is whether Explanation - I to Sec.15 of the Act would apply? For the said provision to apply, the user must have been under an agreement with the owner or occupier of the servient tenement and it is apparent from the agreement that such right has not been granted as an easement. 20. It is pointed out by the learned counsel for appellant that Explanation - I to Sec.15 of the Act has no application. The expression “as an easement” is understood as meaning, as a right which the owner or occupier of certain land, possess for the beneficial enjoyment of that land to pass over to the **RSA No.1047/2010** 16 servient tenement. The expression “as an easement” indicates that the right must be enjoyed by a person in his capacity as an owner or occupier of the dominant heritage for its beneficial enjoyment. 21. In the plaint what is averred is that appellant got title and possession of plaint A schedule as per Exts.A1 and A2, documents of the year, 1990. If one were to go by that version, it has to be said that appellant was neither the owner nor occupier of plaint A schedule prior to 1990. If that be so, user of the way in the manner pleaded by the appellant in paragraphs 6 and 7 until 1990 cannot be said to be as an 'easement' and it is in the year, 1990 that appellant became the owner in possession of plaint A schedule. If that be so, going by the averments in the plaint, appellant started using plaint C schedule as an easement, as of right, as owner and occupier of plaint A schedule since 1990 onwards, while the suit was filed in the year, 2006. 22. Obviously it is to overcome that difficulty in the pleading that appellant filed I.A.No.895 of 2009 for amendment of plaint to state that even before Exts.A1 and A2, settlement deeds of the year, 1990 he was put in possession and enjoyment of plaint A schedule. No doubt, appellant has given evidence in that line when examined as PW1. But, there was no foundation for **RSA No.1047/2010** 17 that in the pleading. Learned Sub Judge dismissed I.A.No.895 of 2009 observing that amendment if allowed would prejudice the respondents and that appellant cannot be allowed to fill up the lacuna. 23. No doubt, appellate court has the power to allow amendment of pleadings at any stage of the proceedings and before the judgment is pronounced to decide the real controversy between the parties. Every amendment is intended to settle the real controversy between the parties. But I cannot forget the recitals in Exts.A1 and A2. Though it is the claim of appellant when examined as PW1 that he was put in possession of A schedule property prior to 1990, recitals in Exts.A1 and A2 stares at him - there, it is stated that appellant's father divested himself of his right, title, interest and possession of plaint A schedule and has transferred the same to the appellant by Exts.A1 and A2. In otherwords, going by Exts.A1 and A2 it appears to me that it is by the said documents that appellant got possession of plaint A schedule as well. 24. I do not forget that transfer of possession referred to in the document is not a term of the contract and hence it is open to the party concerned to adduce evidence either that he did not get possession of the property as recited in the document or he got possession earlier. But in this case I must bear in mind that the documents are executed in the year, 1990 by **RSA No.1047/2010** 18 the father of the appellant reciting that he has transferred possession of plaint A schedule to the appellant. There was no reason why if the appellant was given possession of the property prior to 1990, such a recital was made in Exts.A1 and A2. There is no explanation given by the appellant for the recital in Exts.A1 and A2 regarding appellant getting possession of plaint A schedule only in the year, 1990. If that be so, I am inclined to agree with the view taken by the learned Sub Judge that purport of I.A.No.895 of 2009 was to fill up lacuna in the case pleaded by the appellant that he got title and possession of plaint A schedule in the year 1990. Viewed in that line I do not find reason to interfere with the dismissal of I.A.No.895 of 2009. In that view, it was not necessary to admit in evidence the certified copy of document of 1966 under which the father of appellant acquired title of plaint A schedule. 25. The next question is whether appellant was using plaint C schedule for the statutory period as provided under Sec.15 of the Act and whether there was any such way in existence as described in plaint C schedule? 26. Ext.A4 is the copy of partition deed executed between the 1[st] respondent and others. Page No.3 of Ext.A4 referred to A, C and D schedule item No.II mentioned therein. It is not disputed that the said items formed plaint B schedule. It is stated in Ext.A4 that along the northern portion of C and D schedule item No.II in Ext.A4, a way is set apart upto the A schedule in Ext.A4 **RSA No.1047/2010** 19 (which also forms part of plaint B schedule and it to be more precise, forming the eastern portion of plaint B schedule). Learned counsel has invited my attention to the northern boundary of plaint A schedule in Ext.A4 as the “way”. It is pointed out by the learned counsel that though in the body of Ext.A4 it is stated that a way is set apart in Ext.A4 upto the A schedule therein, description of the northern boundary of A schedule in Ext.A4 which forms the eastern portion of plaint B schedule would show that upto to the eastern boundary of plaint B schedule, way was provided in the partition deed of the year 1998. My attention is also drawn to Ext.A3, assignment deed of the year, 2005 executed by the brother of 1[st] respondent in favour of daughter of the 1[st] respondent regarding a portion of plaint B schedule (7.58 Ares in R.S.No.261/3). That according to the learned counsel formed eastern portion of plaint B schedule. As northern boundary is described as the way and western portion is described as property belonging to the 1[st] respondent (ie. western portion of plaint B schedule). It is also pointed out by the learned counsel that the evidence of PWs 1 to 4 read as a whole would indicate that right from the time of formation of Panchayat road on the western portion of plaint B schedule, plaint C schedule was in existence. 27. According to the appellant, he was taking his stage carriages to his house in the property on the east of plaint A schedule, from the Panchayat road on the western side through plaint C and A schedules. Though, appellant **RSA No.1047/2010** 20 gave oral evidence in that line and some of the witnesses also stated about appellant having stage carriages and taking those vehicles through the disputed plaint C schedule, appellant did not produce documents to show when he purchased those vehicles. At any rate, he is sure that it was since 1990 onwards that he was taking the vehicles through plaint C schedule while the suit was filed in the year, 2006. That apart, the manner in which plaint C schedule is shown by the Advocate Commissioner in Ext.C1 does not show that there was any constant or continuous user of plaint C schedule even as claimed by the appellant. I referred to Ext.C1, report where the Advocate Commissioner has stated that except the two old stones situated on the southern side of disputed plaint C schedule about 8 ft. west of the gate, there was no other indication to show existence of plaint C schedule. There was growth of grass at that portion. Advocate Commissioner has not indicated that there was even any beaten track through the portion of property described as plaint C schedule. Instead, what the Advocate Commissioner has stated is about beaten tracks in the plaint A schedule and going among the rubber trees planted therein. But, from those beaten tracks in plaint A schedule no inference is possible that there was any way (C schedule) as claimed by the appellant. 28. Exts.A3 and A4 in my view do not come to rescue of the appellant. Ext.A4 is of the year, 1998 and admittedly is a partition deed executed in the family of 1[st] respondent. In that partition deed what is stated in page No.3 is that **RSA No.1047/2010** 21 upto A schedule therein (ie. forming eastern portion of plaint B schedule) a way is provided for the use of that sharer along the north of C schedule and D schedule item No.II therein (forming the rest of plaint B schedule). True that northern boundary of A schedule in Ext.A4 (ie. eastern portion of B schedule) is described as the 'way' but, the description in the body of Ext.A4 is that the way was provided only upto the A schedule in Ext.A4. There was no reason why in that partition deed a way should have been provided upto the eastern boundary of A schedule therein (ie. plaint B schedule). If that be so, the way described in Ext.A4 did not extent upto the eastern boundary of plaint B schedule(and the plaint A schedule in Ext.A4). Assuming that a way was provided for the use of A schedule sharer in Ext.A4, there is no mention in Ext.A4 about the width of that way. Therefore, from Ext.A4, I can only understand that a way was provided for use of the sharer of A schedule in Ext.A4 and, there was no necessity to provide that way upto the eastern boundary of plaint B schedule as now pleaded by the appellant. Ext.A3 is also not of much assistance since that document is of the year, 2005 and the situation is not improved from what I have stated with reference to Ext.A4. 29. Oral evidence given by PWs 2 to 4 is also not very much convincing as to time at which C schedule was allegedly formed. I referred to the evidence of PW3 to whom reference was made in paragraphs 6 and 7 as regards the agreement I have referred above. Even PW3 stated the oldness **RSA No.1047/2010** 22 of the gate put up by the appellant as 10 -15 years. No doubt, as regards the existence of plaint C schedule, though he stated that it came into existence about 10-15 years back, he hastened to add that he was aged 65 years at the time of formation of Panchayat road in which case it was formed about 24 years prior to the date of examination of PW3. But the evidence given by him is not convincing to show that the disputed way was in existence during the statutory period. 30. As regards the gate on the western side of A schedule, evidence given by the Advocate Commissioner is that its oldness is about 15 years. Nothing is brought out to discredit that assessment made by the Advocate Commissioner. Nor was the Advocate Commissioner examined to show that the said assessment is not correct. 31. There is some relevance for the oldness of the gate as reported by the Advocate Commissioner. For, according to the respondents the gate was put up at a time when the 1[st] respondent and her husband were away at Bangalore and it was after they came to their native place sometime in 1999 that they noticed the gate (unauthorisedly) put up. 32. True that the Advocate Commissioner reported that there was no indication of removal of wall in front of the gate of appellant (on the date of suit). But, I must notice that the Advocate Commissioner has stated that the disputed **RSA No.1047/2010** 23 plaint C schedule was kept swept and levelled (ത�ര��ക). Learned counsel for appellant points out that expression “ത�ര��ക“ can mean 'sweep'. But I find from 'Sabthatharavaly' that meaning of that expression is “ ന�രപ���ക” (level up). Hence the contention of respondents that the wall in front of the gate was removed on 16.10.2006 cannot be said to be out of place. In Ext.B3, receipt issued by the local police it is stated that on that day 1[st] respondent had preferred a complaint to the local police alleging that on that day morning (date of suit) appellant and others trespassed into the plaint B schedule and removed the wall in front of the gate. I am unable to say that the said version of respondents is not correct. 33. I found that dismissal of I.A.No.895 of 2009 is justified. If that be so, there is no sufficient pleadings in the plaint to establish a claim of easement by way of prescription, not to say that the evidence on records is not sufficient to show that the alleged user of disputed way for more than the statutory period. I also referred to the evidence and stated that even existence of the disputed way as described in C schedule as on the date of suit is quite improbable. Though, this Court had taken a view in **Krishna Pillai v. Kunjupillai (1990** **(1) KLT 136)** that an inchoate right can also be protected, that was distinguished in **Ramanunni Vaidyar v. Govindankutty Nair (1998** **(2) KLT 47)** relying on the decision of the Madras High Court in **RSA No.1047/2010** 24 Venkatanarasimharaju v. Ramaswami (AIR 1941 Madras 176) and various other decision. The Madras High Court distinguished the decision in **Jeffris v. Williams - (1851) 5 Ex. 792)** and held that when the right is not enjoyed for the prescriptive period there is ordinarily no right of action for interference and that in a very exceptional case where access to the plaintiff's land would otherwise be cut off altogether, a suit might be maintained against a stranger on the principle propounded in **Jeffris v. Williams** . Referring to the decision of the Madras High Court, this Court in **Ramanunni Vaidyar v. Govindankutty Nair** held that on the basis of inchoate right or a right which has not ripened into an easement by prescription, but is merely one of user, no relief can be granted to the user of them as against the owner of that land. Hence, even if from 1990 onwards appellant was using plaint C schedule in the way he claims that continues to be an inchoate right when he laid the suit in the year, 2006. 34. I must also notice that the property on the east of plaint A schedule belongs to and is in the possession of appellant even before he got title and possession of plaint A schedule as per Exts.A1 and A2. It is seen from Exts.C1, C1(a) and C2(a) that appellant has right of access towards north and south from the property on the east of plaint A schedule where he is residing. Therefore, it is not as if but for the disputed plaint C schedule, appellant has no manner of **RSA No.1047/2010** 25 access to the plaint A schedule so that one could draw inference that he had no other way but, to use a portion of plaint B schedule for access to the plaint A schedule. 35. My above discussion leads me to the conclusion that appellant was not successful in proving his claim of easement by way of prescription and sought to be enforced against the respondents. 36. Substantial questions of law are answered accordingly. Second Appeal fails. It is dismissed without any order as to costs. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**