Lilly and others v Wilson and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 2ND DAY OF FEBRUARY 2018 / 13TH MAGHA, 1939 SA.No. 683 of 1999 (F) AGAINST THE JUDGMENT AND DECREE DATED 09-04-1999 IN AS NO.337/1995 of DISTRICT COURT,THRISSUR AGAINST THE JUDGMENT AND DECREE DATED 30-11-1995 IN OS NO.181/1994 of PRINCIPAL MUNSIFF'S COURT,THRISSUR APPELLANTS/RESPONDENT BEFORE THE LOWER APPELLATE COURT AND DEFENDANTS BEFORE THE TRIAL COURT: - (*)1. LILLY, AGED 68 (DIED) W/O.KANNUKADAN CHAKKUNNI, ARIPPALAM DESOM, MUKUNDAPURAM TALUK, P.O.KALPARAMB, TRISSUR. - (*)2. CHAKKUNNI, AGED 80, (DIED) S/O.KANNUKADAN KUNJUVARIED, ARIPPALAM DESOM, MUKUNDAPURAM TALUK, P.O.KALPARAMB, TRISSUR. (LEGAL HEIRS OF ORIGINAL APPELLANTS 1 AND 2 ARE IMPLEADED AS ADDL.APPELLANTS 3 TO 10 AND ADDL. RESPONDENTS 6 AND 7) ## (*)ADDL.APPELLANTS: 3. THANKAMMA ANTONY, W/O.ANTONY, KOCHAKADAN, PERAMBRA, KALLETTUNKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 4. MERCY TOMY, AGED 58, W/O.TOMY, PARAPPILLY HOUSE, ELAMAKKARA, EDAPPALLY SOUTH VILLAGE, ERNAKULAM DISTRICT. 5. VARGHESE CHACKO, AGED 58, S/O.CHACKO, KANNUKADAN, KALPARAMBU, IRINJALAKUDA, THRISSUR DISTRICT. 6. ALICE JOSE, AGED 52, W/O.JOSE C.K., CHERUVALKARAN HOUSE, KALLOOR P.O., KALLOOR, KALLOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 7. STEPHEN CHACKO, AGED 49, S/O.CHACKO, KANNUKADAN, KALPARAMBU, IRINJALAKUDA, THRISSUR DISTRICT. 8. LUCY JOY, W/O.JOY, AGED 47, AMBALATHINKAL HOUSE, VARAPPUZHA, NORTH PARUR, ERNAKULAM DISTRICT. 9. VINCENT CHACKO, AGED 45, S/O.CHACKO, KANNUKADAN, KALPARAMBU, IRINJALAKUDA, THRISSUR DISTRICT. SA NO.683 OF 1999 2 10. TESSY JOHNSON, AGED 43, W/O.JOHNSON, THOMMANA HOUSE, THAZHEKKADU, IRINJALAKUDA, THRISSUR DISTRICT. BY ADV.SRI.VARGHESE C.KURIAKOSE RESPONDENT/APPELLANT BEFORE THE LOWER APPELLATE COURT AND PLAINTIFF BEFORE THE TRIAL COURT: - (**) WILSON, AGED 50 YEARS, (DIED) S/O.NELLISSERY RAPHEL, VELIYANNUR DESOM, TRISSUR VILLAGE, TRISSUR TALUK. (LRS IMPLEADED AS ADDL.R 2 TO R5) ## (**)ADDL.RESPONDENTS: 2. ALICE, W/O.LATE WILSON, NELLISSERRY HOUSE, THRISSUR DISTRICT. 3. ROBIN,S/O.LATE WILSON, NELLISSERRY HOUSE, THRISSUR DISTRICT. 4. AMBILY, D/O.LATE WILSON, NELLISSERRY HOUSE, THRISSUR DISTRICT. 5. RINU, D/O.LATE WILSON, NELLISSERRY HOUSE, THRISSUR DISTRICT. THE LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 2 TO 5 AS PER THE ORDER DATED 28/7/2017 IN IA NO.697/2011. ## (*)ADDL.RESPONDENTS: 6. AUGUSTINE CHACKO, AGED 51, S/O.CHACKO, KANNUKADAN, KALPARAMBU, IRINJALAKUDA, THRISSUR DISTRICT, NOW RESIDING AT P.O.BOX 1617, AL-KHOBAR-31952,SOUDI ARABIA 7. JOY CHACKO, AGED 56, S/O.CHACKO, KANNUKADAN, KALPARAMBU, IRINJALAKUDA, THRISSUR DISTRICT, NOW RESIDING AT NOW RESIDING AT PO.BOX 4148,RIYADH-11491, SAUDI ARABIA. (*)THE LEGAL HEIRS OF DECEASED ORIGINAL APPELLANTS 1 AND 2 ARE IMPLEADED AS ADDL.APPELLANTS 3 TO 10 AND ADDL.RESPONDENTS 6 AND 7 AS PER THE ORDER DATED 28/7/17 IN IA 1554/2017. ADDL R2 & ADDL.R4 BY ADV. SRI.P.RAMACHANDRAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11.01.2018, THE COURT ON 02-02-2018 DELIVERED THE FOLLOWING: ## **“C.R.”** ## **A.HARIPRASAD, J. -------------------------------------S.A. No.683 of 1999 -------------------------------------Dated this the 2[nd] day of February, 2018** ## **JUDGMENT** This second appeal is preferred by the defendants in a suit for declaration of a right of way acquired under the provisions of the Indian Easements Act, 1882 (in short, “the Act”) and for a permanent prohibitory injunction against causing any disturbance to their right. Suit was dismissed by the trial court. First appellate court reversed the trial court's decree and granted reliefs to the original respondent (plaintiff). Subsequently he died, his legal representatives are respondents 2 to 5. Original appellants also died. Their legal representatives are additional appellants 3 to 10 and additional respondents 6 and 7. 2. Short facts relevant are as follows:Property described in plaint A schedule was allotted to the plaintiff's mother Kunjilakutty as per a partition deed of the year 1955. That document was not produced by the plaintiff. Kunjilakutty was in possession and enjoyment of the property till her death in the year 1988. She had executed a registered Will in 1979 bequeathing the property to the plaintiff. After her death, the Will came into 2 SA No.683 of 1999 effect and the plaintiff obtained right, title and possession over plaint A schedule property. That Will was also not produced by the plaintiff. Plaintiff's family house is situated on the western portion of plaint A schedule property. On the eastern portion, an old shed existed, where the plaintiff conducted business in hay. Plaint B schedule property is the way leading to the eastern portion of plaint A schedule property. That is the only way to the eastern side of plaint A schedule. Plaintiff and his predecessors were conducting hay business since last more than 60 years. Plaint B schedule way is an ancient way used for that purpose. Plaintiff and his predecessors used plaint B schedule way openly, continuously, peaceably without objection, as of right and as an easement for more than 60 years and thereby they have acquired a prescriptive easement right over plaint B schedule pathway. Since the residential building occupied the entire western portion abutting a public road, there is no other access to enter the hay shed on the eastern portion of plaint A schedule property. Plaintiff was also entitled to use plaint B schedule way by easement of necessity as well, as originally plaint A and B schedule properties belonged to a common owner and by severance it devolved on different persons. 3. 1[st] defendant was the daughter of plaintiff's maternal aunt and 2[nd] defendant was her husband. As per the 1955 partition deed mentioned above, a portion of land, including the plaint B schedule pathway, was allotted to the share of the 1[st] defendant's mother Elia. When the 3 SA No.683 of 1999 defendants tried to block the pathway, the suit was filed. 4. Appellants/defendants contended in their written statement that the respondent/plaintiff was not entitled to claim easement of necessity or easement by prescription in respect of plaint B schedule. Further, both the claims made simultaneously are incongruous to one another and for that reason alone the suit could not be maintained. Plaintiff was not conducting any business in plaint A schedule property. Plaintiff was put to strict proof that plaint A schedule property belonged to his mother Kunjilakutty. The contention that he obtained right over plaint A schedule property by virtue of his mother's Will is also denied. Unless and until the Will was probated, the plaintiff could not have acquired any right over plaint A schedule property. Plaintiff was conducting business in second hand building materials, motor, pump sets, etc. Five years before the suit, the plaintiff stopped business in hay. Neither the plaintiff nor his predecessors used plaint B schedule property as a pathway. Access to plaint A schedule property was directly from the main road on the western side. Through the northern side of the plaintiff's property, in between his property and that of his brother, there was an ancient way, having a width of 5 ft. About 6 years ago, the plaintiff closed that way by constructing a compound wall. No pathway ever existed as described in plaint B schedule. Plaintiff has no legal right to get the reliefs claimed in the suit. 5. Heard the learned counsel for the appellants and respondents. 4 SA No.683 of 1999 6. At the time of admission of the appeal, notice was issued to the original respondent on the substantial questions of law suggested in the appeal memorandum. After hearing the learned counsel on both sides and on perusal of the records, the substantial questions of law re-framed are thus: (i) Is it necessary in a suit for declaration of easement right that the plaintiff, who seeks such a declaration in his favour, should establish title over the dominant tenement? (ii) When the plaintiff failed to produce any document to substantiate his claim of title to the dominant tenement, despite a denial of the same by the defendant, can a suit for declaration of easementary right be decreed? (iii) When incongruous plea of easement by prescription and easement of necessity are raised in the pleadings, is it necessary to abandon one of the pleas in writing? ## **Question Nos. (i) & (ii)** 7. I shall start with the definition of “easement” in Section 4 of the Act. It says thus: _“Easement” defined.- An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to_ 5 SA No.683 of 1999 _prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own._ _Dominant and servient heritages and owners.The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner._ _Explanation.- In the first and second clauses of this section, the expression “land” includes also things permanently attached to the earth; the expression “beneficial enjoyment” includes also possible convenience, remote advantage, and even a mere amenity; and the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.”_ No authority is needed to say that an easement is a right which an owner or occupier of a land has for the beneficial enjoyment of his land over the land belonging to another. Both ownership and easement right thereto cannot co-exist simultaneously. An easement right is exercisable by a person always relating to a land not his own, which is clear _ex-facie_ from the Section itself. The phrase “not his own” as appearing in the Section is 6 SA No.683 of 1999 highly significant. In other words, it is clear from the definition quoted above that owners of servient tenement and dominant heritage must be different. 8. The phrase “an easement is a right which the owner or occupier of certain land possesses” constitutes one necessary ingredient of the right of easement. The person of inherence must be the owner or occupier of certain land for the beneficial enjoyment of which the right is claimed. The expression “owner” needs no explanation as it is well understood in common parlance. Ownership connotes title to the dominant tenement. The word “occupier” indicates that the claim to a right of easement is not limited to owner of a land alone. But, it may be claimed even by a person occupying it, either as a grantee or a transferee from the owner. Even a trespasser who is in open, continuous and peaceful possession of property may fall within the expression “occupier”. It has been held in some ancient decisions that a trespasser, who has ousted the real owner, may acquire a right of easement on the expiration of the prescriptive period (see **Municipal Board v. Lallu (ILR 20 All. 200)** and **Rangeley v. Midland Railway Co. (3 Ch.App.306 : 37 LJ Ch.313** ). Conceptually, an easement is a right enjoyed by a person owning a property or someone occupying it, by asserting a legal right to possess. 9. Learned counsel for the appellants strongly contended that in 7 SA No.683 of 1999 the absence of producing any reliable evidence that the original respondent was the owner of plaint A schedule property, he could not have claimed easementary right in any form. It has been pointed out by the learned advocate that the original respondent failed to produce the partition deed, through which his mother said to have obtained title to plaint A schedule property and also the Will, alleged to have been executed by his mother in his name. It is true that there is no material produced to establish the original respondent's right over plaint A schedule property. 10. In order to get over this difficulty, learned advocate for the respondents contended that the parties were relatives and the appellants' predecessors also derived property by virtue of 1955 partition deed. So, the appellants cannot raise any objection to the plaintiff's title. In this context, it is relevant to note that in paragraph 3 of the written statement, the defendants have challenged the original respondent (plaintiff) to prove that plaint A schedule property belonged to his mother Kunjilakutty and also that she had executed a Will for benefiting him. Although no specific issue was raised by the trial court on title, the parties clearly understood the rival pleas and adduced oral evidence to substantiate their claims. The plaintiff when examined as PW1 asserted that his mother got title to the property by virtue of a partition deed of the year 1955 and he got it pursuant to a Will executed by his mother in 1979. It was his assertion in the pleadings as well as in the witness box that he alone was having right over plaint A 8 SA No.683 of 1999 schedule property. This contention had been touched upon in his crossexamination. Deceased 2[nd] appellant, when testified as DW1, contended that plaint B schedule pathway was formed about eight years prior to the suit and that was formed with their consent, considering their relationship. There was no attempt at the time of cross-examining DW1 to elicit answers to show that plaint A schedule originally belonged to the plaintiff's mother and he got it on a bequest. In short, the challenge raised by the defendants against the plaintiff's title over plaint A schedule property was not properly met at the time of evidence. 11. To conclude this aspect, I hold that in order to succeed in claiming a right of easement in any form provided under the Act, a plaintiff must establish that he either owns or occupies, in a manner known to law, the dominant tenement and he fulfills the conditions required to acquire a right of easement by prescription or easement of necessity, as the case may be. When there is a specific challenge in respect of the plaintiff's right over the dominant tenement, certainly it becomes his bounden duty to establish ownership or occupation, as the case may be, because that is essential for conferring a right of easement on him under the Act. 12. Now, another issue arising in the case is regarding the Will put forward by the original respondent. Will propounded by him was said to have been executed in the year 1979. The suit was filed in the year 1994 claiming a right based on the Will, which admittedly was not probated, not 9 SA No.683 of 1999 even produced before the court. The law then prevailed in Section 213 of the Indian Succession Act, 1925 (in short, “the Succession Act”) reads thus: _“_ _**Right as executor or legatee when established** .-(1)No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed._ _(2) This section shall not apply in the case of wills made by Muhammadans, and shall only apply-_ _(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of section 57; and_ _(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, where such wills are made within the local limits of the ordinary original civil jurisdiction of the High Court at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.”_ Later, Sub-section (2) of Section 213 of the Succession Act was amended by the Kerala State Legislature as per Act 1 of 1997 clarifying that the 10 SA No.683 of 1999 Section shall not apply to Wills made by Muhammadans or Indian Christians. The principle of law stated by a learned Single Judge in **Syndicate Bank v. Soji Chacko (1998 KHC 313)** reads thus: _“What is clear from these decisions is that no court could grant a decree to a legatee claiming on the strength of a will which is not probated even though the vesting of title in the legatee is not postponed until the obtaining of the probate and the legatee need produce the probate of the will relied on by him in the suit only before the decree is actually passed. In other words, these is no insistence that the probate should have been obtained before the institution of the suit itself. …........”_ A Division Bench of this Court in **Cherichi v. Ittianam (2001 KHC 116)** has held that after the aforementioned amendment, the question of getting probate or letters of administration has to be decided with reference to the time when the right as executor or legatee is sought to be established. It is further held that the date of commencement of the proceeding or the date of execution of Will is of no relevance. In this case, the Will was not probated at any point of time before the final disposal of the suit. Therefore, it can only be found that the plaintiff/original respondent failed to establish that he derived title to the dominant tenement, viz., plaint A schedule property. Pleadings and evidence are insufficient to establish the plaintiff's case. 11 SA No.683 of 1999 13. Learned counsel contended that in any case, the respondents are entitled to a relief as stated in **Syndicate Bank** 's case. That was a case filed for recovery of possession of a building. Plaintiff therein based his claim on a Will, which was not probated. Hence, this Court did not allow the plaintiff to recover possession on the strength of the Will, but allowed him to recover it as a co-owner along with defendants 2 to 8. Peculiar set of facts in that case are different from those in this case. Here, the plaintiff failed to establish the derivation of title in respect of plaint A schedule. He even failed to show that it belonged to his mother. Further, his assertion in the plaint and in evidence is that he is the sole owner of plaint A schedule property. None of other legal representatives of his mother was impleaded in the suit. Hence, no relief can be granted to the respondents following the decision in **Syndicate Bank** 's case. Hence, these questions are decided against the respondents. ## **Question No.(iii)** 14. A mistake commonly committed by the draftsmen is to plead both easement by prescription and easement of necessity together in respect of a way, forgetting the fact that they are mutually incongruous to one another and contradictory in nature. Section 15 of the Act deals with easement by prescription. On a careful reading of Section 15 of the Act, it can be seen that where a right of way or any other easement has been 12 SA No.683 of 1999 peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for 20 years, right to such access shall be absolute. 15. The definition of the word “prescription”, according to **Salmond on Jurisprudence** (12[th] edition) is thus: _“Prescription may be defined as the effect of lapse of time in creating and destroying rights; it is the operation of time as a vestitive fact. It is of two kinds, namely (1) positive or acquisitive prescription and (2) negative or extinctive prescription. The former is the creation of a right, the latter is the destruction of one, by the lapse of time. An example of the former is the acquisition of a right of way by the de facto use of it for twenty years. An instance of the latter is the destruction of the right to sue for a debt after six years from the time at which it first became payable.”_ The concept is founded on utility, rather than on equity. Essential concomitants for prescribing an easement right are peaceable, open, continuous and as of right enjoyment of the right for the stipulated period in order to mature the user into a legal right. It is therefore clear that the basis of a prescriptive easement is the exercise of a right in accordance with the stipulations in Section 15 of the Act. 16. Whereas, easements of necessity as defined in Section 13(a), (c) and (e) of the Act arise on severance of immovable property by a 13 SA No.683 of 1999 transfer, bequest or partition. Easements of necessity recognized under Section 13 of the Act, presupposes jointness of the tenements at an anterior point of time and severance of them before enforcement of the claim. Rights under Section 13 of the Act arise by operation of law under the situations mentioned therein. 17. It is therefore clear from the above principles that easement of necessity and easement by prescription cannot operate together in respect of any immovable property. This proposition has been settled in a number of decisions.(see **Mohammed v. Doomunhi Achari (1987 (2) KLT 1037), Joy Joseph and others v. Jose Jacob alias Thankachan (2010 (4) KHC 167)** and **Kallen Devi v. Raghavan (2012 (3) KLT 142))** . Therefore, I have no hesitation to hold that claims based on easement by prescription and easement of necessity taken up together in the pleadings by the respondent are contradictory to one another and therefore the plaintiff should have opted to adhere to one at the time of adducing evidence. 18. In this context, the principle of election of pleas assumes importance. According to **Black's Law Dictionary** (8[th] edition, page 558) 'election of remedies' are thus: (i) A claimant's act of choosing between two or more concurrent but inconsistent remedies based on a single set of facts. (ii) The affirmative defense barring a litigant from pursuing a 14 SA No.683 of 1999 remedy inconsistent with another remedy already pursued, when that other remedy has given the litigant an advantage over or has damaged the opposing party. 19. In reality, if a party opts to elect one of the incongruous pleas, virtually he abandons the other in order to salvage the one he wanted to advance. Abandonment legally means the act of intentionally and voluntarily relinquishing a known right absolutely and unconditionally. 20. It will be profitable to refer to a decision by a Division Bench of the Punjab High Court in **Kanhiya Shanker v. Mohabata Sedhu (AIR 1960 Punjab 494)** . The principle regarding abandonment has been stated in the following words: _“There are two primary elements of abandonment, namely the intention to abandon and the external act by which effect is given to the intention and both these elements must concur. …........”_ No doubt, abandonment can be either through positive submissions or through silence leading to a lapse. 21. In order to adjudge on the plea of abandonment in a particular case, the courts will have to ascertain the existence of an affirmative and unmistakable evidence, leading to an exclusive inference of intentional relinquishment of a claim. 15 SA No.683 of 1999 22. In this case, the 1[st] respondent, when examined as PW1, has asserted that for the past 60 years he had been using plaint B schedule pathway for ingress and egress . In the next breath, he deposed that there is no other way, except the plaint B schedule pathway for entering plaint A schedule property. 23. Even according to the case of the 1[st] respondent, till 1955 he or his predecessor-in-title could not have claimed any easement as there was no division of the properties. Till then, it was impossible for them to prescribe a right because the plaintiff alleged to have jointly owned both the tenements before partition. In the absence of establishing a severance of the tenements by way of partition in the year 1955, certainly the 1[st] respondent has to fail in claiming an easement of necessity. That must have prompted him to give up the plea at the time of evidence. Abandonment of the plea is evident as he did not adduce any evidence to substantiate the same. 24. There is no rule that abandonment of a plea should be in writing. It can either be express or implied from the attending circumstances. The essential requirements to infer an abandonment of plea are: (i) the plea should be intentionally and voluntarily relinquished; (ii) the person abandoning it must be aware of the right; and (iii) the abandonment should be made unconditionally. 25. In this case, I am of the view that the respondent had 16 SA No.683 of 1999 selectively adhered to his plea of prescriptive easement at the time of trial. However, since he failed to establish the necessary ingredients for establishing the plea of prescriptive easement, he has to suffer the consequences. Question decided accordingly. 26. For the aforementioned reasons, I find that the lower appellate court failed to consider the legal issues involved in the case correctly and reversed a correct decree passed by the trial court. In the result, the substantial questions of law framed above are decided against the respondents. The appeal is allowed. Judgment and decree passed by the lower appellate court is hereby set aside and that of the trial court is restored. Suit is dismissed. No order as to costs. All pending interlocutory applications will stand closed. ## **A. HARIPRASAD, JUDGE.** **cks** SA No.683 of 1999 17 **A.Hariprasad, J.** **S.A.No.683 of 1999 JUDGMENT 2[nd] February, 2018**