Lonappan v. Jacob and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY ,THE 14TH DAY OF JANUARY 2019 / 24TH POUSHA, 1940** **RSA.No. 252 of 2015** **AGAINST THE JUDGMENT AND DECREE IN AS 91/2012 of PRINCIPAL SUB COURT,IRINJALAKUDA DATED 17-11-2014** **AGAINST THE JUDGMENT IN OS 346/2007 of ADDL.MUNSIFF COURT,IRINJALAKUDA DATED 03-03-2012** ## **APPELLANT/APPELLANT/1ST DEFENDANT:** **LONAPPAN AGED 58 YEARS S/O.KUNJUVAREED, KAPPANI HOUSE, PALLIKKUNNU DESOM, VARATHARAPILLY VILLAGE,MUKUNDAPURAM TALUK, NOW RESIDING AT KAPPANI HOUSE, NEAR ST. MARY'S SCHOOL, OLLUR DESOM, OLLUR VILLAGE, THRISSUR DISTRICT.** **BY ADVS. SRI.RAJIT SMT.TULASI PANICKER** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS & DEFENDANTS 2 AND 3:** **1 JACOB, AGED 56 YEARS S/O.RAPPAI, VENATTUPARAMBAN HOUSE, PALLIKKUNNU DESOM, VARATHARAPPILLY VILLAGE, MUKUNDAPURAM TALUK, REP. BY HIS SON AND AUTHORIZED AGENT VIKAS JACOB, AGED 24 YEARS, S/O.JACOB, VENATTUPARAMBAN HOUSE, PALLIKKUNNU DESOM, VARATHARAPPILLY VILLAGE, MUKUNDAPURAM TALUK** **2 GEORGE AGED 58 YEARS S/O.LONAPPAN ATTUPURAM HOUSE, PALLIKKUNNU DESOM, VARATHARAPILLY VILLAGE, MUKUNDAPURAM TALUK** **3 RAJAN AGED 56 YEARS S/O.ARANGAN RAVUNNY, KORONDI DESOM, VARATHARAPILL VILLAGE MUKUNDAPURAM TALUK** **BY ADV. SRI.T.N.MANOJ** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.S.A.No.252/2015 2 **CR** ## **JUDGMENT** Aggrieved by the judgment and decree of the First Appellate Court ( Principal Sub Court, Irinjalakkuda in A.S.No.91/2012) and the trial court (Munsiff's Court, Irinjalakkuda in O.S.No.346/2007), the first defendant came up with this appeal. 2. The dispute is pertaining to lateral support to the registered holding of plaintiff scheduled in the plaint as A schedule, over the property belonged to first and second defendants, the item Nos. 1 and 2 of B schedule. The suit is one for declaration of prescriptive right of easement of lateral support to A schedule property over plaint B schedule, for a prohibitory injunction and a mandatory injunction, directing the defendants to restore the lateral support by constructing a granite wall. It was decreed by the trial court and the first appellate court granting declaration, prohibitory injunction and mandatory injunction. 3. The following questions came up for consideration in this appeal: 1) The construction of a compound wall either through the boundary or inside the boundary separating a servient heritage would amount to 'artificial pressure' as envisaged under Section 15 of the Indian Easement Act and whether it would destruct the easement of lateral support ? R.S.A.No.252/2015 3 2) Construction of a building on a small portion of large extent of property would destruct easement of lateral support on an adjoining servient heritage and what are the factors to be looked into when there is a construction of a building over a large extent of property, but confined only to a small portion in the matter of easement by lateral support ? 4. The contention of the first defendant in the second appellate stage is that; 1) there is no sufficient pleading in the plaint regarding acquisition of prescriptive right of lateral support (2) property was subjected to artificial pressure and hence there cannot be any easement for lateral support and (3) that there is no direct evidence to satisfy the requirement constituting prescriptive right of easement of lateral support. 5. Regarding the pleadings, paragraphs 5 and 6 of the plaint is self explanatory. In paragraph 5, a claim of preserving property in its natural condition raised by way of easement. There is sufficient pleading in paragraph 6 of the plaint regarding the claim of easement for lateral support and advanced user from time immemorial, peaceably, as an easement and without any interruption. 6. The second limb of Section 15 of Indian Easement Act deals with easement of lateral support. User 'as of right' need not be established R.S.A.No.252/2015 4 for claiming easement of lateral support, light and air covered by the first and second limb of Section 15 of the Act. The preservation of properties without any artificial pressure from time immemorial would satisfy the required period of twenty years. 7. In the present case, admittedly, plaint A schedule property lying adjoining with plaint B schedule property on the southern side. Both the properties are lying without any level difference though they are lying slightly slanting from north to south. The defendants have no case that there is alteration of the nature and character of the property to the extent of destructing entitlement of lateral support at any point of time within a period of twenty years except the construction of a tiled house on a small portion of the large extent of property and the construction of a compound wall. 8. Now the question comes up for consideration is whether the above said two constructions admitted by the plaintiff would constitute “artificial pressure” as envisaged in the second limb of Section 15 of the Indian Easement Act, 1882. The construction of a building or a multi-storied structure or even construction of a tiled house would come within the expression “artificial pressure” as envisaged under the second limb of Section 15 of the Act. But when there is a large extent of property and only a small portion of property alone was subjected to artificial pressure by R.S.A.No.252/2015 5 construction of any building or structure, that part of the property alone would stand as outside the purview of second limb of Section 15 of the Act and no easement by way of lateral support can be given in so far as that portion of property is concerned. But in so far as the remaining part of large extent of property when retains its original character and natural condition without any artificial pressure, the lateral support enjoyed cannot be disturbed. The building, a titled house, was constructed not adjoining to the southern boundary line or any where near to the southern boundary line. But the construction of the house is on the western part of the large extent of 80 cents of property, covering only a small portion of property. **A house constructed over a small portion of large extent of property, would not disentitle the right of easement by lateral support to the remaining extent of property which was not subjected to any artificial pressure. The expression 'artificial pressure' as envisaged under the second limb of Section 15 of the Act stands for an additional pressure applied permanently over the dominant heritage lying adjoining to the servient heritage giving an additional burden over the servient heritage to provide lateral support than what actually enjoyed by the dominant heritage when it was in its original condition and it should be construed in reference to the magnitude and quantum of artificial pressure applied** R.S.A.No.252/2015 6 **over the dominant heritage** . A mere constructed of compound wall cannot be brought under the purview of 'artificial pressure' as envisaged under the second limb of Section 15 of the Indian Easement Act, 1882. **Construction of compound wall, fencing either barbed or otherwise is only a protective measure to safeguard the property from any encroachment or tresspass and it will not destruct the right to have lateral support by way of easement.** 9. The learned counsel for the appellant relied on the decisions drawn in **Badariya Madrassa Committee represented by its President v. v. Antony Robert Breganza ( ILR (KER) 2006 (2) 246), Jessy Raju Zacharia ( 2011 (3) KLT 809) and** in **Madai Lakshmi Alias M. Rajalakshmi v. P.M.Partha Kumar ( 2000 (9) SCC 524)** 10. In **Badariya Madrassa Committee's** case ( supra) what is dealt with is the question of easement of way relying on the decision rendered by the Apex Court in **Justiniano Antao v. Bernadette B.Pereira.** It was held that there should be clear pleading to show user 'as of right', 'peaceably', 'as an easement', and 'without interruption' for a period of twenty years ending withing two years and the date on which they were enjoying the easement as of right. When there is user from time immemorial, there is no question of specifying any particular date or period. In so far as easement which would R.S.A.No.252/2015 7 come under the purview of first and second limb of Section 15 of the Indian Easement Act, there is no necessity for establishing user 'as of right'. Only in the case of easement of way and other easement which would come under the third limb of Section 15 of the Act, the user 'as of right' has to be established in addition to the general requirement applicable to Section 15 of the Act - user peaceably, as an easement, without interruption and for twenty years ending within two years. There is no necessity or requirement of establishing user 'as of right' for claiming a prescriptive right of easement of lateral support, light or air covered by the first and second limb of Section 15 of the Indian Easement Act. 11. In **Jessy Raju's** case (supra) what is considered is the requirement of easement as enumerated under Section 7 of the Easement Act. The construction of a compound wall cannot be brought under the purview of an artificial pressure and hence the legal proposition laid down in the said decision cannot be applied in the instant case. 12. The decision drawn in **Madai Lakshmi's** case ( supra) was also brought to the notice of this court regarding the period to be establishedtwenty years ending within two years. As discussed earlier, the plaintiff has established easement of lateral support enjoyed peaceably, uninterruptedly for the required period of twenty R.S.A.No.252/2015 8 years and the suit was brought into existence within a period of two years from the date of its obstruction. The concurrent finding rendered by both the trial court and the First Appellate Court thus deserves no interference. The appeal is dismissed. No costs. **Sd/-** **P.SOMARAJAN** sv **JUDGE**