M.K. Aravindakshan and M.A. Sudheer v. M.K. Rajappan (deceased) and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 RSA NO. 813 OF 2021** **AGAINST THE JUDGMENT AND DECREE DATED 28.09.2021 IN AS 22/2018 OF ADDITIONAL DISTRICT COURT - VIII, ERNAKULAM AND THE JUDGMENT AND DECREE DATED 22.01.2018 IN OS 190/2013 OF I ADDITIONAL MUNSIFF COURT-I,ERNAKULAM** ## **APPELLANTS/APPELLANTS/PLAINTIFFS:** 1 M.K.ARAVINDAKSHAN AGED 80 YEARS S/O. LATE KITTUNNY, RESIDING AT MANNAZHATH HOUSE, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK, P.O. EROOR, ERNAKULAM-682 306. 2 M.A.SUDHEER AGED 50 YEARS S/O. M.K.ARAVINDAKSHAN, RESIDING AT MANNAZHATH HOUSE, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK, P.O. EROOR, ERNAKULAM-682 306. BY ADVS. S.K.PREMRAJ C.ANILKUMAR (KALLESSERIL) V.SARITHA, PREMRAJ K.V.SUDHEER P.M.MANASH REENU KURIAN NEEMA NOOR MOHAMED JAIN VARGHESE NAVAS JAN A. ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 M.K.RAJAPPAN,(DIED) (LHRS IMPLEADED) AGED 84 YEARS S/O. LATE KITTUNNY, RESIDING AT MANNAZHATH HOUSE, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK, P.O. EROOR, ERNAKULAM-682 306.(DIED) 2 M.R.PRADEEP AGED 50 YEARS R.S.A.No.813/2021 2 S/O. M.K.RAJAPPAN, RESIDING AT MANNAZHATH HOUSE, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK, P.O. EROOR, ERNAKULAM-682 306. 3 CHITRA AGED 46 YEARS W/O. PRADEEP, RESIDING AT MANNAZHATH HOUSE, EROOR DESOM, NADAMA VILLAGE, KANAYANNUR TALUK, P.O. EROOR, ERNAKULAM-682 306. ADDL 4 KANJANA RAJAPPAN, AGED 80 YEARS W/O.M.K.RAJAPPAN,RESIDING AT SIVAM,MANNAZHATH HOUSE,PKRA-55,P.O.EROOR,TRIPUNITHURA,ERNAKULAM682 306. ADDL 5 PRAMEELS KOCHUKUTTY, AGED 55 YEARS D/O.M.K.RAJAPPAN,RESIDING AT KARIATH PARAMBU VEEDU,NEAR HIGHER SECONDARY SCHOOL,THADIYITTAPARAMBU, P.O.SOUTH VAZHAKKULAM,ERNAKULAM,PIN-683 105. ADDL 6 PRAVEENA RAVEENDRAN, AGED 53 YEARS D/O.M.K.RAJAPPAN,RESIDING AT CHITTETHUPARAMBIL HOUSE,KIZHAKKUMPURAM,P.O.CHENDAMANGALAM,NORTH PARAVUR,ERNAKULAM,PIN-683 512. ADDL 7 PREMA RADHAKRISHNAN, AGED 49 YEARS D/O.M.K.RAJAPPAN,RESIDING AT PUTHENPURAKKAL HOUSE,P.O.EDAYAPURAM, NEAR COCHIN BANK,ALUVA,ERNAKULAM,PIN-683 101. (LEGAL HEIRS OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 4 TO 7 AS PER ORDER DATED 01.07.2022 IN IA.2/2022 IN RSA.813/2021.) BY ADV A.A.MOHAMMED NAZIR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.S.A.No.813/2021 3 ## **M.R.ANITHA, J** ************** R.S.A.No.813 of 2021 ------------------------------------------Dated this the 6[th] day of March, 2023 ## **JUDGMENT** The Regular Second Appeal has been filed against the judgment and decree in A.S.No.22 of 2018 on the file of Additional District Judge-VIII, Ernakulam which in turn arise out of the judgment and decree in O.S.No.190/2013 on the file of I Additional Munsiff, Ernakulam. 2. Plaintiffs are the appellants. Suit is one for declaration and permanent prohibitory injunction with respect to plaint B schedule pathway. (Parties would hereafter be referred as per their status before the trial court). First plaintiff and first defendant are the children of late Kittunni who was the owner of 32 cents of property. Kittunni executed gift deed with respect to R.S.A.No.813/2021 4 10 cents of land out of 32 cents in favour of first plaintiff. Ext.A2 is the settlement deed by which 15 cents of property on the eastern extremity of the remaining 22 cents was given to the first defendant and the remaining 7 cents on the south western side of 10 cents was given to the first plaintiff. Plaintiffs alleged that plaint B schedule pathway is in existence through the southern side of first defendant's property, which is described as A schedule in the plaint and they claim right of easement by prescription over the pathway. 3. First defendant filed written statement disputing the very existence of B schedule pathway. It is contended that while 10 cents of property was gifted to the first plaintiff, a pathway was given on its northern side to the first plaintiff in the year 1979 for access to first plaintiff's property from the eastern Balabhadra temple road. In the year 1982 when the remaining property was settled by virtue of Ext.A2 in favour of 1[st] plaintiff and 1[st] defendant, another pathway on the southern extremity of 1[st] defendant's property was also given to 1[st] plaintiff at his request. That pathway is having 8 links width and that has been R.S.A.No.813/2021 5 used by the plaintiffs for access to their property. In the year 1995, first defendant purchased a car. Then, a portion of their eastern compound wall was demolished and a gate was erected in order to take car to their property. After one year, first plaintiff also purchased a car and at his request, first defendant permitted him to use the gate to take the car of the plaintiffs to plaint A schedule property, being his brother. Plaintiffs and family members were also using the said portion for their ingress and egress which was not objected by the first defendant considering the close relationship. At the time when permission was given by the 1[st] defendant to use the gate, plaintiffs promised the defendants that they will make it convenient to take the vehicle along the southern 8 links way provided by the father in Ext.A2. But the plaintiffs are not prepared to use the 8 links way provided by the father for their ingress and egress. They also attempted to obstruct the way provided to them by collecting pebbles. Then the 1[st] defendant withdrawn permission to use the way. Thereafter the suit has been filed. Defendants also filed a counter claim for fixation of their southern and western R.S.A.No.813/2021 6 boundaries to which plaintiffs filed written statement reiterating the averments in the plaint. 4. PW1 to PW3 were examined and Exts.A1 to A4 were marked from the side of the plaintiff. DW1 to DW3 were examined and Exts.B1 to B8 marked from the side of defendants. Exts.C1 and C2 series were also marked. 5. The trial court, on evaluating the facts, circumstances and evidence, dismissed the suit as well as counter claim. Defendants did not challenge the dismissal of the counter claim and plaintiffs filed appeal against dismissal of the suit. First appellate court reappreciated the facts, circumstances and evidence and confirmed the judgment and decree passed by the trial court and dismissed the appeal. Aggrieved by the same, appellants/plaintiffs approaches this Court in second appeal. 6. Heard both sides. 7. Plaintiffs claim right of easement by prescription over the plaint B schedule pathway alleging that it was in existence even prior to 1979. Admittedly, Kittunni, the father of the parties originally had 32 cents of properties and in the year 1979 1[st] R.S.A.No.813/2021 7 plaintiff was given 10 cents of property on the north western portion of the total property as per Ext.A1. The 'tharavadu' house situates on the western half of the entire 32 cents. Ext.A2 was executed by the father in the year 1982 by which 15 cents on the eastern side was given to the first defendant and remaining 7 cents on the south western portion of the total extent was given to the first plaintiff. Even after that, Kittunni along with family resided in the 'tharavadu' house. At the time of giving 10 cents of property on the north west, a pathway was provided on the north for access to 10 cents of property. It has been found by the courts below that as per the description in Ext.A1, a way was already in existence and that is the way situated on the northern side of the property settled in favour of the first defendant as per Ext.A2. Commissioner's reports Exts.C2 and C2(a) prove the existence of that pathway and the specific stand of PW1 during evidence is that he never used that pathway and there is a compound wall on the western side of that way preventing his access to A schedule from that way. It has come out in evidence that at the time of execution of Ext.A1 there was no compound R.S.A.No.813/2021 8 wall on the eastern side of plaint A schedule property. As per Ext.A2, the 1[st] plaintiff obtains 7 cents of property on the southern side of the property already gifted to him as per Ext.A1. At that time, another pathway was given to the plaintiffs with a width of 8 links and that pathway is lying on the southern side of the property given to the defendants as per Ext.A2. The case of the plaintiffs is that though such a way has been provided, they were not using the way. Several trees are also noted by the Commissioner in the pathway provided as per Ext.A2 to plaint A schedule. But, it has come out that on the southern side of plaint A schedule property, there is a public way and on the western side also there is a public way as per Ext.C2(a) plan. 8. Learned counsel for the plaintiffs has got a specific contention that the courts below refused the claim of their right over plaint B schedule way pointing out the alternate way provided in Exts.A1 and A2. The first appellate court quoted ## **Badariya Madrassa Committee v. Antony Robert : 2006 (2)** **KLT 636** wherein the Apex Court laid down the ingredients to establish right of easement by prescription over a pathway. R.S.A.No.813/2021 9 Section 15 of the Indian Easements Act also provides that where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit. In **Maniyan Krishnan v. Nanukuttan : 1986 KLT 203** while dealing Section 15 of the Act, a learned Single Judge of this Court held that the following conditions should exist before an easement can become absolute by prescription. (1) There must be a pre-existing easement which must have been enjoyed by the dominant owner; (2) the enjoyment must have been peaceable; (3) the enjoyment must have been as an easement; (4) the enjoyment must have been as of right; (S) the right must have been enjoyed openly; (6) the enjoyment must have been for a period of 20 years and (7) the enjoyment for 20 years must have been without interruption. To establish the claim under S.15 of the Act, R.S.A.No.813/2021 10 continuous user for 20 years as of right to do the act complained of in assertion of a title, peaceably and openly must be made out. The user or enjoyment of an alleged right must be shown to have been "as of right", the user as of right, having been enjoyed nee vi nee clam, nee precario (neither as the result of force, secrecy, or evasion) nor as dependent upon the consent of the owner of the servient tenements. So, the existence of alternate way will not in any way take away the right of the plaintiff over plaint B schedule property, if at all the plaintiff had succeeded in establishing his long, continuous, open, uninterrupted use of plaint B schedule way as of right as an easement for the statutory period of twenty years as contemplated under Section 15. 9. Here, Ext.A1 is a document of 1979 and the plaintiffs' specific case is that even before Ext.A1 document, this way was in existence and he has been using the same. But there is no mention of plaint B schedule way in Ext.A1 and moreover, a way has been provided on the north as access to the 10 cents of property. Subsequently, in the year 1982, when Ext.A2 R.S.A.No.813/2021 11 settlement deed was executed by Kittunni, another way was provided on the south of the defendants' property for access to the 7 cents of property which is settled in favour of first plaintiff as per Ext.A2 on his demand. Even in Ext.A2 also, there is no mention regarding plaint B schedule way. There is an admission during evidence by PW1 that there was always permission to use B schedule way. Learned counsel for the plaintiff, in this context, would contend that even though permission was initially granted, it has subsequently been matured into easement due to his long, continuous and uninterrupted use of way and hence the courts below had wrongly construed the admission by PW1 that there was permission always in using the B schedule pathway by him. It is true that in **Joseph v. Joseph and Another : 1973 KLT 391** learned Single Judge of this Court held that a person claiming an easement right is not debarred from proving that though his enjoyment was a permissive one to start with, yet subsequently he enjoyed it adversely to the servient owner. So, the question is whether the plaintiffs succeeded in proving that though the way was used on permission by the defendnats R.S.A.No.813/2021 12 initially, subsequently he enjoyed it adverse to the interest of the defendants. 10. The specific case of the defendants in this context is that he had applied for construction of compound wall on his property. In Ext.B7 permit and plan a provision for opening was given to his access from eastern Viswakarma temple road which is the Balabhadra temple road and the length of the compound wall is shown as 24 meters and a provision for a small gate is also shown on the middle of the said 24 meters and that gate comes parallel to the south eastern boundary walls of the residential house situates in the defendants' property. In Ext.B7 plan, there is no way as described in plaint B schedule and Ext.B7 is of the year 1979 and that would establish that, in the year 1980 defendants constructed the eastern compound wall throughout its length with a small gate towards middle for access to their property. In this context, the specific case of the defendants is that first defendant purchased a car in the year 1995 and thereupon he demolished portion of the eastern compound wall and erected a big gate on two pillars and R.S.A.No.813/2021 13 thereafter in the year 1996, first plaintiff purchased a car. It is the specific case of the defendants that when the plaintiffs purchased car in the year 1996, considering the close relationship, the 1[st] defendant permitted them to take the car through plaint B schedule and the plaintiff and family also used the plaint B schedule way for pedestrian walking. The fact that there was permission for use of plaint B schedule way is rather admitted by PW1 also. In order to probabilise the non-existence of the gate on the eastern end of the portion which is now shown as opening of plaint B schedule way, the admission of PW1 during cross-examination that there was bamboo blocks on the eastern end of the portion now shown as eastern opening of B schedule way and those bamboos were cut down at the time of erection of the gate is also discussed by the first appellate court. So, that would probabilise the case of the defendants that the present gate was installed only when they purchased the car in the year 1995. 11. So, on evaluating the entire facts and circumstances, the courts below found that B schedule way came into existence R.S.A.No.813/2021 14 only in the year 1995 and the first plaintiff started its use only in the year 1996. The suit has been filed in the year 2013. So, even if it is taken that the plaintiffs have been using plaint B schedule way as of right, the period of user would also not satisfy the prescribed period provided under Section 15 of the Indian Easement Act. Easement is a precarious right which a property owner acquires over another's land. In other words, prescriptive easement is always hostile and is in fact an assertion of a hostile claim of certain right over another's property. A person who asserts such hostile claim must prove that right by adducing cogent evidence. In the case on hand, plaintiff miserably failed to establish their right over B schedule way. 12. Hence, on a close evaluation of the judgments passed by the courts below, I am of the view that the courts below rightly found that the plaintiffs failed to prove the long, continuous and uninterrupted use of plaint B schedule way as of right as an easement for the statutory period and thereby declined to grant declaration of right of easement by prescription over plaint B schedule pathway. I do not find any illegality or R.S.A.No.813/2021 15 impropriety in the said findings. Hence no substantial question of law emerges for consideration for entertaining the second appeal. Hence the appeal is found to be devoid of any merit and hence dismissed. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge