## IN THE HIGH COURT OF KERALA AT ERNAKULAM
## THE HONOURABLE MR. JUSTICE V.RAMKUMAR
THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 RSA.No. 399 of 2008() --------------------AS.76/2005 of SUB COURT, PALA OS.30/2002 of MUNSIF COURT, KANJIRAPPALLY ....................
## APPELLANT/DEFENDANT
-----------------------------------O.K.NAZZAR, S/O.KANIKUTTY, AGED 45 YEARS RESIDING AT OLICKAPPARA HOUSE, KOOTTICKAL KARA KOOTTICKAL POST, MUNDAKAYAM VILLAGE KANJIRAPPALLY TALUK. BY ADV. SRI.P.C.HARIDAS
## RESPONDENTS: RESPONDENTS/PLAINTIFF
-------------------------------------------------------------K.S. JAMEELA, W/O.ISMAIL, AGED 59 YEARS KADAVUKARA PURAYIDATHIL HOUSE, NOW RESIDING AT MADATHIL HOUSE, KOOTICKAL KARA MUNDAKKAYAM VILLAGE, KANJIRAPPALLY TALUK.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
## **V. RAMKUMAR, J.**
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## **R.S.A.No.399 of 2008**
**= = = = = = = = = = = = = = Dated this the 18th day of September, 2008**
## **JUDGMENT**
The sole defendant in O.S.No.30 of 2002 on the file of the Munsiff's Court, Kanjirappally is the appellant in this Second appeal. The said suit instituted by the respondent herein was one for declaration of the plantiff's title over the plaint schedule item No.4 and for declaration of her right of easement over plaint schedule item No.2 way and for mandatory injunction to remove the gate which is plaint schedule item No.3, installed at the entrance of the plaint schedule item No.2 . The declaratory right of easement was claimed for ingress and egress to plaint schedule item No.1 property belonging to the plaintiff and admeasuring 12 cents.
2. Going by the decrees concurrently passed by the courts below the following facts emerge:-
The plaintiff is the absolute owner of plaint schedule item No.1 property admeasuring 12 cents as per Ext.A1 and A2 registered sale deeds. The defendant is a subsequent purchaser
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of the western property as per Ext.B1 sale deed dated 30.5.1995. The plaintiff has been using the plaint schedule Item No.2 way for ingress and egress to the plaint schedule Item No.1 property from the Kootical-Mundakkayam road. The plaint schedule item No.2 pathway is having a width of 1.7 meter and length of 32 meters and it is comprised in resurvey No.178/8 of Mundakkayam village. Plaint schedule item No.1 property has been identified by the Advocate Commissioner deputed by the trial court as LMNFGH . The plaint schedule Item No.2 pathway has been identified by the Advocate Commissioner as a strip of land KOCDNML. The plaint schedule Item No.4 is a small segment of plaint schedule Item No.2 and has been identified by the Advocate Commissioner as KONML. Both the courts have rejected the plaintiff's claim of title over plot KONML. But the courts below have concurrently held that the plaintiff has established a right of easement by prescription over item No.2 pathway marked as KOCDNML by the Advocate Commissioner for having ingress and egress to plaint schedule item No.1 which is comprised in resurvey No.178/7 and shown as yellow shaded plot in the Commissioner's plan. Plaint schedule item No.2
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pathway starts from the Mundakkayam-Koottickal road lying north-south on the east and proceeds westwards upto the property of the appellant comprised in resurvey No.178/7 which lies immediately to the west of plaint schedule Item No.1 property. The plaint schedule Item No.3 gate was installed at the eastern entrance of the plaint schedule Item No.2 pathway.
3. The learned counsel appearing for the appellant/defendant made the following submissions in support of the appeal:-
The plaintiff has not specifically alleged the nature of easement put forward by her. Even issue No.2 framed by the trial court was not pertaining to easement by prescription. It only stated whether the plaintiff is having easement right over plaint item No.2 property as contended. As held in **Ibrahimkutty v. Abdul Rahumankunju** (1992(2) KLT 775), in a claim of easement right, the pleadings should be specific. The right of easement is a precarious right and a special right is claimed over the property of another. Hence it is all the more necessary that there should be specific pleadings with regard to the easement set up by the party. From the averment in the
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plaint that the plaintiff has no other way to reach the plaint schedule item No.1, it would appear as though the plaintiff was also claiming an easement of necessity. Plaint schedule item No.3 gate was not put up recently, but was put up in the year 1981. The suit was filed only in 2002. The plaintiff was thus guilty of acquiescence. In any view of the matter a gate at the entrance of the pathway starting from the MundakkayamKootical road to the western properties is a must.
4. I am afraid that I cannot agree with the above submissions except with regard to the necessity of having a gate at the entrance of the pathway. Eventhough the plaintiff does not mention that the easement claimed is one of prescription, a reading of the plaint clearly shows that it has been averred that that the plaintiff has been enjoying the plaint schedule item No.2 property for the beneficial enjoyment of plaint schedule item No.1 property from Mundakkayam-Kuttical road openly, uninterruptedly, continuously, peacefully and as a matter of right for more than the statutory period. The requirements of easement by prescription namely nec vi, nec claim and nec precario are specifically averred in the plaint. Merely because
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issue No.2 does not mention as to whether the plaintiff has established an easement by prescription, it does not follow that there was no plea in that regard by the plaintiff. When the pleadings are very clear and the parties went to trial knowing fully well the above plea, it is idle for the defendant to contend that there was no plea of prescriptive easement. The trial court, after a careful evaluation of the oral and documentary evidence in the case has come to the conclusion that the plaintiff has been using the plaint schedule item No.2 way openly, uninterruptedly, continuously, peacefully and as a matter of right for more than the statutory period of 20 years, thereby acquiring a right of easement by prescription. The lower appellate court has also confirmed the said finding. This Court sitting in the ratified jurisdiction under Section 100 read with Order XLII C.P.C will be loathe to interfere with the said finding.
5. The plea of acquiescence also cannot be entertained for the first time in the second appeal.
6. However, with regard to the contention regarding the necessity of the gate at the eastern end of plaint schedule item No.2 pathway, I see some force in the submission made on behalf
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of the appellant. By directing the appellant/defendant to remove the plaint schedule item No.2 gate, no useful purpose will be served for both sides, since it is a matter of safety and security as well. But I am not inclined to dislodge the decree for mandatory injunction. In case the appellant makes a request before the Execution Court for retention of the gate undertaking that he will not in any manner obstruct the peaceful and uninterrupted user of the gate by the plaintiff, that court may consider making appropriate modifications with regard to the decree for mandatory injunction having regard to the fact that a gate may be necessary for a security point of view. But both sides will have to be heard on the above limited question and a workable arrangement evolved, if possible. Leaving this aspect to the Execution Court, this Second Appeal is dismissed in limine.
Dated this the 18th day of September, 2008.
## **V. RAMKUMAR, JUDGE**
sj
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## **R.S.A.No.399 of 2008**
Registrar(Judicial)
Registry shall call for an explanation from the Munsiff's Court, Kanjirappally as to why the description of the plaint schedule property is not shown in the decrees passed in O.S.No.30/2002.
## **V. RAMKUMAR, JUDGE**
**18.09.08**
