High Court of KeralaSingle Judge2011-06-23Second appeal dismissed; no costs

Lalitha Suresh and others v. State of Kerala and Others

Case / Petition Number:SA No. 781 of 2000 (B)

Neutral Citation::null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. Bhavadasan
Judgment Date: 2011-06-23
Court Decision / Holding: The second appeal is dismissed. There is no merit in the appeal; the courts below were correct in refusing to recognize a prescriptive easement over the B schedule pathway. The judgment orders that there will be no order as to costs.
Final Disposition: Second appeal dismissed; no costs

Parties to the Case

Appellants / Petitioners

Lalitha Suresh
Sandhya Unnikrishnan
Sindhu Sajikumar
Sunder S.

Respondents

State of Kerala
Director of Public Instruction, Jagathy, Trivandrum
Principal, District Institute of Education and Training, Thodupuzha
President, Parents and Teachers Association, D.I.E.T., Thodupuzha

Legal Representation & Advocates

Counsels for Petitioners

• V. G. Arun
• T. R. Harikumar

Counsels for Respondents

• Sri. M. R. Sabu (Senior Government Pleader)

Case Synopsis & Summary

The case arises as SA No. 781 of 2000 (B), preferred from OS No. 321/92 in the Munsiff’s Court, Thodupuzha, and disposed by the Kerala High Court on 23 June 2011. The appellants (the original plaintiffs in the suit) claimed a prescriptive right of easement over a B schedule pathway as a means of access to their property, asserting long use of a narrow passage as a pathway to reach their land (A schedule), including a demolished padippura and a constructed motorable road on the western side. The suit was for declaration and injunction, seeking to establish the easement as a right of way. The two courts below concluded that the plaintiff failed to prove prescriptive easement under Section 15 of the Indian Easement Act and that the use of the pathway was a matter of convenience rather than necessity. The courts noted that the B schedule pathway might have been used because the surrounding open plots permitted access via alternate routes (northern and western sides), and that the presence of an alternate route weakens a claim to an easement by prescription. The appellant relied on Maniyan Krishnan v. Nanukuttan (1986 KLT 203) to contend that long, uninterrupted use creates a right; the High Court distinguished this authority, emphasizing the need to satisfy statutory ingredients and facts of each case. The learned judge held that there were no substantial questions of law and dismissed the second appeal, with no costs awarded.

Provisions of Law Cited

Indian Easement Act, Section 15

Legal Doctrines & Maxims

Prescriptive right of easement requires proof of use as of right and uninterrupted for the statutory period; mere long use does not, by itself, establish a prescriptive easement.
Necessity vs. convenience: easement claims turn on whether the use arises out of necessity or convenience, and whether the legal ingredients are satisfied.
Cases must be decided on their own circumstances; there is no inflexible rule for prescriptive easements, as recognized in case law.
Even where there is long user, a presumption of right arises only if the surrounding circumstances satisfy the statutory criteria; alternate routes can defeat a prescriptive easement.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants contended that prescriptive easement over the B schedule pathway should be recognized despite the existence of a possible alternate access, since the plaintiff has used the pathway for more than the statutory period and the A schedule property (with the building) is about 50 years old. They relied on Maniyan Krishnan v. Nanukuttan (1986 KLT 203) to argue that long user creates a presumption of right and that the courts below erred in treating the use as mere convenience rather than as of right. They asserted Exts. X1 and X2 as evidence that public authorities recognized the existence of a pathway, and that PWs 1–3 corroborate long-standing usage.

Contentions of Respondents

The respondents argued that mere use of a passage does not prove a prescriptive easement; the user could be for convenience or access through land that remains open to others, particularly in open plots; there was an alternate access route to the property via the northern or western sides, and the southern route’s use does not satisfy the statutory ingredients of Section 15 of the Indian Easement Act. They stressed that the courts below correctly found lack of necessity and lack of uninterrupted use as of right; hence no prescriptive easement; the case should be decided on facts, not on presumptions.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Maniyan Krishnan v. Nanukuttan	1986 KLT 203	Distinguished	The court acknowledged Maniyan Krishnan but distinguished its applicability to the present facts, noting that the circumstances and statutory requirements differ and that the evidence in this case does not establish a prescriptive easement under Section 15.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** ## **THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933** ## **SA.No. 781 of 2000(B)** **--------------------------------** **AS.NO. 8/1996 of ADDL.DISTRICT COURT, THODUPUZHA OS.NO. 321/1992 of MUNSIFF'S COURT,THODUPUZHA** **....................** ## **APPELLANT(S)/ APPELLANTS-ADDL.PLAINTIFFS 2 TO 5** ## **---------------------------------------------------------------------------------** **1. LALITHA SURESH, WIFE OF LATE SURESH, RESIDING AT LEELALAYAM, THODUPUZHA.** **2. SANDHYA UNNIKRISHNAN, RETNA VILAS, ASHRAMAM ROAD, KALADY, ERNAKULAM.** **3. SINDHU SAJIKUMAR, VANIYAPURAYIL HOUSE, NEAR GOVERNMENT L.P.SCHOOL, KANJIRAMATTOM, THODUPUZHA.** **4. SUNDER.S., SON OF SURESH, LEELALAYAM, THODUPUZHA.** **BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR** ## **RESPONDENTS/RESPONDENTS/DEFENDANTS** **---------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVT, TRIVANDRUM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM.** **3. THE PRINCIPAL, DISTRICT INSTITUTE OF EDUCATION AND TRAINING, THODUPUZHA.** **4. THE PRESIDENT, PARENTS AND TEACHERS ASSOCIATION, D.I.E.T., THODUPUZHA.** ## **R1 & R2 BY SR GOVERNMENT PLEADER SRI.M.R.SABU** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **P.BHAVADASAN, J.** ------------------------------------SA No.781 of 2000 ------------------------------------Dated this the 23[rd] day of June 2011 ## Judgment Faced with the concurrent decrees by the courts below, the plaintiff in OS No.321/92 before the Munsiff's Court, Thodupuzha, has come up in appeal. The suit was one for declaration and injunction. 2. The plaintiff laid claim over a narrow passage which was being used by him for a long time as a pathway to gain access to his property. Both the courts below found that the plaintiff had miserably failed to establish prescriptive right of easement claimed by him. 3. At one point of time, it is admitted that both A schedule property and B schedule pathway belong to the plaintiff. However, evidence is clear to the effect that the residential building is situated in A schedule property, thereby indicating that there was another way through which the plaintiff could have access to his property. There SA 781/00 2 was a padippura on the northern side which he pulled down and thereafter he laid a road on the western side of the public road. He laid a claim of prescriptive right of easement over B schedule pathway. Reliance is placed on Exts.X1 and X2, which according to the plaintiff, are sufficient to show that the public authorities have found the existence of a pathway. He also relied on the evidence of PWs 1 to 3 to assert that there exists a road. The courts below found that plaint B schedule property had been lying as an open compound it is possible that the plaintiff may have used the same for easy access to the public road on the southern side. 4. The courts below were of the view that it is not a case of necessity for the plaintiff to use the pathway, but one of convenience. Both the courts below took the view that mere usage of a way, however long it may be, without satisfying the ingredients to attract prescriptive right of easement, cannot confer any right on the plaintiff. SA 781/00 3 5. The learned counsel for the appellant assailed the finding on the ground that both the courts below have proceeded on the presumption that since there is an alternate way available to the plaintiff, the prescriptive right of easement is not available to him in respect of B schedule pathway. According to the learned counsel for the appellant, both the courts below have omitted to notice that the building situated in A schedule property is 50 years old and so also, the B schedule pathway. The evidence in the case shows that the plaintiff has been using the pathway for more than the statutory period required. The fact that he has been using it is clear from the records and if that be so, a presumption arises that he uses it as of right. The learned counsel relied on the decision reported in Maniyan Krishnan v. Nanukuttan (1986 KLT 203). Accordingly, it is contended that the courts below have erred in negativing the plaintiff. 6. Though the argument may look formidable, on a closer scrutiny, it can be seen that it is without any SA 781/00 4 substance whatsoever. As rightly noticed by the courts below, it is possible that southern property was lying as an open plot, people including the plaintiff may have used the same for gaining access to the main road. It may be profitable to note that the building of the plaintiff situated in A schedule property faces towards north and there was a padippura also on that side. It was later demolished by the plaintiff. It has also come out in evidence that the plaintiff has laid a motorable road from the western public road also. As rightly noticed by the courts below, since adjacent school compound was lying as an open land, it is possible that the plaintiff must have used it for gaining access to the southern public way. At any rate, he had other means of access to his property through the western and northern sides. 6. True, merely because there are alternate ways, it is not a ground to reject the plea of prescriptive right of easement. As rightly noticed by the courts below, even assuming the plaintiff has been using the beaten SA 781/00 5 track, it was not as a matter of right and as an easement, satisfying the ingredients necessary to attract Section 15 of the Indian Easement Act. In the decision relied on by the learned counsel for the appellant, though it is observed that there may be a presumption as contended by the learned counsel, ultimately, it is held that each case should be decided depending upon the circumstances of that case and there is no inflexible rule in that regard. The relevant portion of the decision in Maniyan Krishnan (supra) reads as follows : “Finally, the learned Judge said that it is for the court to consider whether a presumption could reasonably be drawn looking to the circumstances of each case such as the nature and character of the servient land, the relation between the parties and the circumstances and the manner in which the user has taken place.” 7. The facts already stated persuaded the courts below to take the view that even assuming B schedule pathway exists, the plaintiff had miserably failed to SA 781/00 6 establish that he has been using it as a matter of right and as easement without interruption as claimed by him. Therefore, even assuming that he used B schedule pathway for access to the road on the southern side, that confers no right on him. The students studying in the nearby school are also making use of the same pathway to take water from the well in the compound of the plaintiff. Even assuming that the plaintiff was also using the way shown as B schedule to gain access to the southern public way, that could not be characterised as a matter of right. The courts below have rightly come to the conclusion that the plaintiff is not entitled to any reliefs as sought by him. The findings are arrived on appreciation of evidence and are pure questions of fact. No substantial questions of law arise for consideration in this appeal. The second appeal is without any merits and it is liable to be dismissed. I do so. However, there will be no order as to costs. **P.Bhavadasan, Judge** SA 781/00 7 sta SA 781/00 8