Nesamany Nadar Ratna Rajkumar Perunthannai v. Govindan Nadar Nadarajan Nadar and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 SA.No. 51 of 2000(F) -------------------AS.748/1994 of SUB COURT,NEYYATTINKARA OS.942/1985 of II ADDL.M.C.,NEYYATTINKARA .................... APPELLANT/RESPONDENT/PLAINTIFF ------------------------------------------------------ NESAMANY NADAR RATNA RAJKUMAR PERUNTHANNAI, KIZHAKKEVEEDU KAZHAVOOR DESOM, KARAKKULAM VILLAGE BY ADV. SRI.L.MOHANAN ## RESPONDENTS/APPELLANTS/DEFENDANTS: ---------------------------------------------------------------- 1. GOVINDAN NADAR NADARAJAN NADAR AGED 50, RESIDING AT PERUMTHANNI KIZHAKKUMMURI VADAKKATHU VEEDU KAZHAVOOR DESOM, KARUMKULAM VILLAGE FROM KURUMBERU VEEDU, KANCHANPAZHINJI DESOM THIRUPURAM VILLAGE 2. JANAKI AMMA AGED 43, RESIDING AT DO – DO- (DIED LEGAL HEIRS RECORDED) 3. JANAKI AMMA LEELA, AGED 38 OF -DO- (IT IS RECORDED THAT R3 IS THE LEGAL HEIR OF DECEASED R2 AS PER ORDER DATED 19.10.2000 ON MEMO DT.11.10.2000) ADV. SRI.G.S.REGHUNATH THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16.08.2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.BHAVADASAN, J.** ------------------------------------SA No.51 of 2000-F ------------------------------------Dated this the 16[th] day of August 2011 ## Judgment The plaintiff who was non-suited by the lower appellate court, is the appellant. 2. According to the plaintiff, he is the owner in possession of plaint A schedule property which he obtained by way of Ext.A1 gift deed dated 21.07.1981. The plaint allegation is that B schedule pathway runs along the boundary of the defendants' property and the claim is that the plaintiff has acquired easement right to use the said pathway which is shown as B schedule to the plaint. The plaintiff would say that the defendants caused obstruction to the use of the said pathway and that necessitated the suit. 3. The defendants resisted the suit. They denied the existence of the way and also the use of any portion of their property by the plaintiff as a way. According to them, SA 51/00 2 the plaintiff has other means of access to plaint A schedule property and there is no way as alleged in the plaint. On the above contentions, they prayed for dismissal of the suit. 4. On the above pleadings, the trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 3 and documents marked as Exts.A1 to A7 from the side of the plaintiff. The defendants had Dws 1 and 2 examined and Exts.B1 to B3(a) marked. Exts.C1 to C4 are the commissioner's report and plan. 5. On a consideration of the evidence, the trial court accepted the case of the plaintiff and granted him a decree. The defendants carried the matter in appeal as AS No.748 of 1994 before the Sub Court, Neyyattinkara. The lower appellate court found that there was dearth of pleadings for declaration of prescriptive right of easement in favour of the plaintiff. Holding so, the lower appellate court reversed the judgment and decree of the trial court and dismissed the suit. Hence the second appeal. SA 51/00 3 6. Notice is seen issued on the following questions of law raised in the second appeal : i. Is it not illegal to hold that there cannot be any prescriptive easement over a pathway which is also used by the public ? ii. Is it not illegal to hold that boundary does not form part of the property ? iii.Is it not sufficient to plead in sum and substance especially when no form is prescribed for the same ? iv.Is it not illegal in observing that evidence is totally lacking while discarding the parole evidence ? 7. The learned counsel for the appellant contended that it is the sum and substance of the pleading that has to be looked into and there are sufficient pleadings in the plaint to the effect that the plaintiff has been using B schedule pathway for over 30 years continuously. The learned counsel also pointed out that it is true that the plaintiff had initiated proceedings before the Sub Divisional Magistrate claiming B schedule pathway, but that has to be SA 51/00 4 understood in that context. According to the learned counsel, the claim of the plaintiff was that the prescriptive right of easement, by passage of time, changed into a public right. The finding of the lower appellate court that there is no pleading to the effect that B schedule pathway runs through the property of the defendants, is incorrect. The definite pleading was that the pathway runs along the western boundary of the defendants' property and it is well settled that the boundary forms part of the property. Going by the commissioner's report, the learned counsel pointed out that it can be seen that B schedule is the only means of access to plaint A schedule property. These vital aspects have been omitted to be noticed by the lower appellate court and that has resulted in an erroneous decree being passed by the said court. 8. The learned counsel for the respondents, on the other hand, pointed out that it is well settled that in a claim of easement right, the pleading should be definite and precise. A reading of the plaint would show that the SA 51/00 5 plaintiff himself was not sure of the nature of right. A general claim of easement is made in the plaint. The necessary ingredients under S.15 of the Easement Act are not seen mentioned either in the pleadings nor in the submissions of PW1. In fact, the evidence of PW1 is that it is a public pathway. It is also contended that there is no claim by the plaintiff that B schedule pathway runs through the property owned and possessed by the defendants. In other words, there is no definite pleading regarding servient tenement at all. The learned counsel for the respondents relied on the decisions in **Maniyan Krishnan V. Nanukkuttan** (1986 KLT 203) and **Ibrahimkutty v. Abdul Rahumankunju** (1992(2) KLT 775) and contended that in the absence of definite pleadings and also evidence regarding the necessary ingredients to attract S.15 of the Easement Act, the plaintiff has necessarily to fail. The lower appellate court was justified in its conclusions and no interference is called for with the judgment and decree of SA 51/00 6 the courts below. 9. After having heard the learned counsel on either side and having gone through the records, this court finds much substance in the contentions raised by the learned counsel for the respondents. In the plaint, there is no definite pleading as to the ingredients necessary to attract prescriptive right of easement. It is true that in paragraphs 4 and 6 of the plaint, it is pleaded that plaint B schedule pathway runs along the boundary of the defendant's property and it has been in existence for a long time and that the plaintiff has been using it continuously. 10. Section 15 of the Indian Easement Act reads as follows : “15. Acquisition by Prescription – Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption and for twenty years, and where support from one person's land or things affixed thereto has been peaceably received by another SA 51/00 7 person's land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years, and 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-r other easement shall be absolute. Each of the said periods of twenty years next before the institute of the suit wherein the claim to which such period relates is contested.” The necessary ingredients to attract S.15 of the Easement Act are laid down in the decision in **Maniyan Krishnan V. Nanukkuttan** (supra). The relevant portion of the said decision reads as follows : “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 SA 51/00 8 been as an easement (4) the enjoyment must have been as of right (5)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, 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 nec vi nec clam, nec precario (neither as the result of force, secrecy or evasion) nor as dependent upon the consent of the owner of the servient tenements. Consent or acquiescence on the part of the servient owner lies at the root of prescription and a grant cannot be presumed from long use without his having had knowledge or at least the means of knowledge. He cannot be said to acquiesce in an act enforced by mere violence or in an act which he has no knowledge actual or constructive or which he contests and endeavours to interrupt or which he sanctions only for temporary purposes, or in return or recurrent consideration. In SA 51/00 9 substance, it means that the enjoyment should be without violence, without stealth and without permission. The importance is that the user must be peaceable, open and non-permissive.” 11. One may now have a look at the plaint. Except for stating that plaint B schedule pathway runs along the defendants' property and that the way has been in existence for over 30 years and that it has been used by the plaintiffs continuously, no other ingredients necessary to attract prescriptive right of easement are seen pleaded in the plaint. The words “ _prescriptive right of easement”_ are not seen used in the plaint at all either in the body of the plaint or in the relief portion. There is no definite pleading as to the nature of the claim put forward by the plaintiff with regard to the use of plaint B schedule. 12. Coming to the evidence of PW1, what he says is that plaint B schedule is the only way to gain access to plaint A schedule property and it has been in existence for a long time and he has no other way than B SA 51/00 10 schedule, to gain access to his property. He then goes on to say that several other persons in the locality also use the said pathway. He then claims that he wants a declaration that he has easement right to use B schedule pathway. Nowhere in the chief examination, he speaks about the necessary ingredients to attract S.15 of the Easement Act. A reading of his evidence would show that the claim is more in the nature of easement by necessity rather than easement by prescription. Therefore, the learned counsel for the respondents is justified in relying on the decision in **Ibrahimkutty v. Abdul Rahumankunju** (supra) and contending that in the absence of any definite pleading regarding the right that is sought to be established, the plaintiff cannot succeed. The trial court seems to have been greatly impressed by the commissioner's report as well as Exts.A4 to A6 which are the proceedings before the Sub Divisional Magistrate and the revisional court. It is significant to notice that while the suit was pending, the plaintiff approached the Sub Divisional Magistrate claiming SA 51/00 11 B schedule pathway to be a public pathway and complaining that the defendants are trying to obstruct the use of the pathway. It is true that there is an order against the defendants not to obstruct the use of the pathway by the plaintiffs, which was confirmed by the order of the revisional court. It is significant to notice that the revisional court has clarified that the decision in the criminal proceedings will be subject to the decision in the civil suit. Therefore, the trial court was not fully justified in relying on these documents to come to the conclusion that the plaintiff has established his case. 13. There are two commissioner's reports and plans. They appear to be inconsistent. It would appear from one of the reports that the pathway is on the southern side of the plaintiff's property while the other is on the northern side. Of course, the commissioner says that B schedule pathway is the only pathway for the plaintiff to collect water from a tap situated on the public road. The commissioner's reports and plans clearly show that he has other means of SA 51/00 12 access to A schedule property. The evidence of PW2 is of least help to the plaintiff. He would proclaim B schedule pathway as a public pathway being used by the people of the locality. The claim of the plaintiff for prescriptive right of easement over a public road, cannot be countenanced. The origins of both the roads are entirely different and so also, their nature and extent. The lower appellate court has considered the pleadings and the entire evidence on record and has come to the conclusion that there was absolute want of pleadings and evidence to show that the plaintiff had established prescriptive right of easement to claim B schedule pathway. 14. The learned counsel for the appellant was unable to successfully assail the findings of the lower appellate court. The lower appellate court has considered the entire pleadings and evidence in the case and has come to the right conclusion that the plaintiff has not succeeded in established his prescriptive right of easement to use plaint B schedule pathway. SA 51/00 13 The result is that this appeal is without any merits and it is accordingly dismissed. **P.Bhavadasan, Judge** sta SA 51/00 14