Omana and A.C. David v. Reji Kurian and others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 7[TH] DAY OF APRIL 2022 / 17TH CHAITHRA, 1944 RSA NO. 73 OF 2015 ``` ``` AGAINST THE JUDGMENT IN A.S.NO.15/2009 OF SUB COURT, ``` ## **`OTTAPPALAM`** ``` O.S.No.143/2006 OF MUNSIFF MAGISTRATE COURT,PATTAMBI APPELLANTS/APPELLANTS/DEFENDANTS: ``` - **`1 OMANA, AGED 66 YEARS, W/O.LATE ARIMPUR CHACKO, KARIKKAD VILLAGE, PERIMPILAVU DESOM, TALAPPILLY THALAK.`** - **`2 A.C.DAVID, S/O.OMANA, ARIMPUR, KARIKKAD VILLAGE, PERIMPILAVU DESOM, TALAPPILLY THALAK.`** ``` BY SMT.OMANA (PARTY IN PERSON) A.C.DAVID(PARTY IN PERSON) ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` REJI KURIAN, 49 YEARS, REPRESENTED BY MUKTHIAR AGENT KURIAN, 80 YEARS, S/O.LATE MANANTHAN ITTIYESAN,RESIDING AT CHALISSERI ANGADI, KAVUKODE AMSOM, KAVUKODE DESOM, OTTAPPALAM TALUK 679536. ``` ``` BY ADVS.SRI.S.GANESH SRI.PAUL JACOB SRI.PEARL K.DAVIS ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07.04.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` R.S.A.No.73 of 2015 2 ## **JUDGMENT** The judgment dated 11.6.2014 in A.S.No.15 of 2009 on the file of the Subordinate Judge’s Court, Ottappalam is under challenge in this appeal. A.S.No.15 of 2009 arose from the judgment of the MunsiffMagistrate Court, Pattambi in O.S.No.143 of 2006. 2. The defendants are the appellants. The plaintiff is the respondent. 3. Material facts relevant for the adjudication of this appeal are narrated below:- 3.1. The plaintiff instituted the original suit for a permanent prohibitory injunction restraining the defendants from trespassing upon the plaint schedule property and causing any disturbance to the peaceful enjoyment of the same. The plaintiff is the owner in possession of the plaint `A’ schedule property. He acquired title over this property as per Ext.A1 assignment deed. The plaint ‘B’ schedule property was kept in common as per the partition deed of 1946 (Ext.A4). The properties were divided in 1973 under Ext.A3 partition deed among the plaintiff’s father Sri.Kurian, Sri.Cheru and Sri.Simon. R.S.A.No.73 of 2015 3 Sri.Simon and Sri.Cheru assigned the properties to Smt.Annie, Sri.David and Sri.Geever. The ‘B’ schedule way has been formed exclusively for the use of Sri.Cheru, Sri.Simon and Sri.Kurian and thereafter their assignees. The `B’ schedule way came into existence as per Ext.A2 partition deed of the year 1973. This way starts from the southern public road, runs towards the north and ends in the `A’ schedule property. The defendants own property on the east of the ‘B’ schedule way. A laterite wall is on the eastern side of `B’ schedule way, separating the same from the defendants’ properties. The defendants have also put up a barbed fence on the western side. They have got entrance to their property through the northern way. The defendants have no right over the ‘B’ schedule way. Recently, they cut and removed the barbed fence on the western side of their property to enter into the ‘B’ schedule way. The father of the plaintiff obstructed the defendants. The plaintiff apprehends trespass on the part of the defendants on the plaint ‘B’ schedule property. 3.2. The defendants resisted the suit contending that the description of the plaint schedule properties is erroneous. The defendants acquired the property on the east of `B’ schedule way as per Ext.A3 partition deed. The `B’ schedule way was available for their use even when Ext.A3 partition deed was executed. The defendants R.S.A.No.73 of 2015 4 have been using `B’ schedule way openly, peacefully and as of right. This way has been in existence even prior to 1973. The `B’ schedule property is a public way. The people who own property on either side use it for ingress and egress to their properties. The plaintiff made an attempt to put up a gate to obstruct the user of plaint `B’ schedule way by the defendants. Therefore, the plaintiff has no right to get the reliefs sought. 4. During the trial, PWs1 and 2 were examined and Exts.A1 to A4 were marked on the side of the plaintiff. DWs 1 to 3 were examined and Exts.B1 to B11 were marked on the side of the defendants. Exts.C1 & C2 were marked as Court exhibits. 5. The Trial Court decreed the suit, holding that the plaintiff is entitled to the permanent prohibitory injunction. 6. The defendants challenged the judgment and decree before the First Appellate Court in A.S.No.15 of 2009. The First Appellate Court confirmed the judgment and decree. Accordingly, the defendants are in appeal under Section 100 of the Code of Civil Procedure. 7. After hearing both sides, this Court re-formulated the substantial questions of law as follows:- R.S.A.No.73 of 2015 5 - 1) Have the Courts below misconstrued the evidence while holding that the defendants failed to establish right over `B’ schedule way ? - 2) Have the Courts below drawn necessary inferences and presumptions that would apply on the facts of this case ? 8. Heard both sides. 9. The plaintiff’s case is that he is the owner in possession of `A’ schedule property. According to the plaintiff, `B’ schedule way was kept in common under Ext.A4 partition deed of the year 1946. In 1973, Ext.A2 partition deed was executed among the father of the plaintiff Sri.Kurian, Sri.Cheru and Sri.Simon. The plaintiff pleaded that `B’ schedule way came into existence in 1973 at the time of execution of Ext.A2 partition deed. The specific case of the plaintiff is that the `B’ schedule way, which starts from the southern public road towards the north and ends in `A’ schedule property, was exclusively set up for the use of Sri.Cheru, Sri.Simon, Sri.Kurian and their assignees. 10. The defendants’ challenge is that they had acquired right over the `B’ schedule way by way of open, continuous and peaceful enjoyment of the same with effect from the time when Ext.A3 partition deed was executed. The defendants have also raised a contention that `B’ schedule way is a public way. R.S.A.No.73 of 2015 6 11. The defendants also challenged the plaintiff’s right over the plaint `B’ schedule way. At the same time, the defendants pleaded that they had acquired the right of easement by prescription over `B’ schedule way. 12. The conditions necessary for the acquisition of right of easement by prescription are (1) there must be 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; (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. 13. Unless all these ingredients are proved, no right of easement can accrue to the owner of a dominant heritage. Ordinarily, a Court can find a case and decree the suit only based on the pleadings of the parties. Where the claim is for an easement right, it is necessary that the pleadings be specific and precise. There is reason therefore. 'Easement' is a precarious and special right. The right of easement is one which a person claims over a land that is not his own. Since the right of easement is a precarious and special right claimed over the land R.S.A.No.73 of 2015 7 of another, the pleadings must be precise. **[Vide: Ibrahimkutty** v. **Abdul Rahumankunju (1992 (2) KLT 775)]** . 14. In **Justiniano Antao and others** v. **Smt. Bernadette** **B. Pereira (AIR 2005 SC 236)** , the Apex Court held that to establish a right by way of prescription, one must show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. In addition, there should be categorical pleadings that from what date to which date has one been using the access for the last 20 years. Therefore, to establish the right of prescription to the detriment of the other party, one has to aver specific pleadings and categorical evidence. 15. In **Chapsibhai Dhanjibhai Danad** v. **Purushottam – (AIR 1971 SC 1878),** following the principle in **Raychand Vanmalidas** v. **Maneklal Mansukhbhai (AIR 1946 Bom 266)** the Supreme Court held that as an easement by prescription under Sections 12 and 15 of the Easements Act is, in fact, an assertion of a hostile claim of certain rights over another man's property and in order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to exercise that hostile claim on a property which is not his own and where no such consciousness is proved he cannot establish a prescriptive acquisition of the right. R.S.A.No.73 of 2015 8 16. The Apex Court in **Krishna Narain Agarwal** v. **Carlton Hotel (P) Ltd., (1969 SCD 1105)** has laid down that to establish the claim under Sec.15 of the Easements 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. 17. PW1 gave evidence in support of the pleadings in the plaint. His oral evidence corroborated by Exts.A2 and A4 shows that `B’ schedule way was included in Ext.A4 partition deed of 1946, and the same in its entirety has come into existence at the time of execution of Ext.A2 partition deed in 1973. It has also come out in evidence that the portion of the way was available from 1943 onwards. 18. Defendant No.2 gave evidence as DW1. An independent witness was examined from the side of the defendant as DW3. The Commissioner appointed in O.S.No.98 of 2005 gave evidence as DW2. According to the defendants, `B’ schedule way was available as on the date of execution of Ext.A3. The recitals in Ext.A3 show that the property of the plaintiff existed on the west of `B’ schedule way. There is no mention of the way on the west of the property of the defendants, as claimed by them, in Ext.A3. The defendants have no consistent case as to when they started using the `B’ schedule way. R.S.A.No.73 of 2015 9 19. Yet another aspect that requires consideration is that the pleadings of the defendants in the written statement go in the line, denying the title of the plaintiff over the `B’ schedule way. One of the fundamental ingredients in a claim of easement is the admission of the title of the servient owner by the dominant owner. On this ground alone, the claim of the defendants over plaint `B’ schedule property by way of easement by prescription must fail. The Trial Court and the First Appellate Court have meticulously gone through the pleadings and evidence in this case and held that the defendants failed to establish any right over the `B’ schedule way. The Courts below have drawn the necessary inferences and presumptions that would apply to the facts of this case legally and correctly. The findings in the impugned judgment require no interference. The substantial questions of law are answered accordingly against the defendants. The Regular Second Appeal is dismissed. The parties are directed to bear their respective costs. Pending interlocutory applications, if any, stand dismissed. Sd/- **K.BABU Judge** TKS