P. M. Joseph v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 SA.No. 402 of 1996(F) --------------------AS.183/1991 of DISTRICT COURT, PALAKKAD OS.643/1986 of PRL.MUNSIFF COURT, PALAKKAD .................... APPELLANT(S)/RESPONDENTS/DEFENDANTS: --------------------------------------------------------------- 1. THE STATE OF KERALA BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. CONSERVATOR OF FORESTS, CIVIL STATION, KOZHIKODE. 3. PALAKKAD DIVISIONAL FOREST OFFICER (RESERVE), PALAKKAD RAILWAY COLONY, KALLEKULANGARA, PALAKKAD. BY SPL.GOVERNMENT PLEADER SRI. M.P. PRAKASH RESPONDENT(S)/APPELLANT/PLAINTIFF: --------------------------------------------------------- P.M. JOSEPH, S/O. MATHEW, AGRICULTURIST, RESIDING AT PARAMEKKAL HOUSE, KALLEKULANGARA, AKATHETHARA, AMSOM, PALAKKAD. ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR R1 SRI.P.RAMAKRISHNAN FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2010, THE COURT ON 18/05/2010 DELIVERED THE FOLLOWING: ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 402 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of May, 2010. ## **JUDGMENT** The defendants in O.S. 643 of 1986, who suffered a decree at the hands of the first appellate court are the appellants. The parties and facts are hereinafter referred to as they were available before the trial court. 2. According to the plaintiff, the plaint schedule property belongs absolutely to him and it has two houses in it. On the eastern boundary of the plaint schedule property is the paddy field of strangers. The plaintiff has produced a plan along with his plaint. According to him there is a Panchayat pathway upto the point B on the eastern side of the paddy field. On the northern side of the pathway there is reserve forest and the road proceeds through the reserve forest to the bus stop on the northern side. Bus stand is shown as S in the plan. The pathway leading to the plaint schedule S.A.402/1996. 2 property is shown as A-D in the plan. According to the plaintiff for more than last 60 years there is A-D and S-B pathways which have been continuously used by the plaintiff and his predecessors as a matter of right to reach the plaint schedule property from the east and north respectively. Both these pathways reach the point B and then proceeds to C, from where it proceeds to the plaint schedule property. The plaintiff used to take bullock carts, jeep and other vehicles to his property. According to the plaintiff there is no other means of access to his property. He claims to have acquired the right to use this pathway as a matter of right. He claims easement right by prescription. Further he also laid claim on the basis of easement by necessity. The plaintiff says that as a power of attorney, he had occasion to conduct cases against the defendants and this conduct of the plaintiff seems to have annoyed them and in retaliation they are seeking to block the pathway, which reaches the plaint schedule property thereby causing irreparable injury and harm to the plaintiff. Hence the suit. 3 S.A.402/1996. 3. The defendants resisted the suit. They disputed the existence of the pathway as claimed by the plaintiff. According to them, the pathway runs through the reserve forest and nobody has a right to use the path way. They contended that the sketch produced along with the plaint is incorrect. The point shown as B-A, S-B, E.B, and B-C are not in existence. The entire boundary of the reserve forest is demarcated and Mahagony plants are planted along the boundary. The entire boundary is a fire line. The pathway which runs through the reserve forest leads to the Guest House of the Forest Department. The plaintiff has no manner of right to use the same either under prescriptive right or easement by necessity. On the basis of these contentions, they prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 to 3 and the exhibits marked as Exts.A1 to A4. The defendants had D.Ws. 1 and 2 examined and Exts.B1 and B2 marked. Exts.C1 to C6 are the Commission reports and S.A.402/1996. 4 plans. The trial court below on an evaluation of the evidence found that the plaintiff was unsuccessful in establishing right by way of easement of necessity or by prescription. The ingredients necessary to attract easement by necessity and prescription are totally absent in the pleadings and the evidence and therefore the trial court held against the plaintiff and dismissed the suit. The plaintiff carried the matter in appeal as A.S. 183 of 1991 and the appellate court held that the trial court was not justified in raising an issue regarding easement right as there was no such claim by the plaintiff. It went on to say that there are three ways available to the plaintiff and thereafter granted a decree in favour of the plaintiff in respect of R1 way shown by the Commissioner in Ext.C6 plan. 5. It is this judgment and decree that is assailed before this court. 6. Notice was ordered on the following substantial questions of law: S.A.402/1996. 5 _“1. Whether the finding of the lower appellate court is illegal as per the provisions of Section 22, 27 and 16 of Kerala Forest Act._ _2. The finding of the court below that under section 27 of Kerala Forest Act use of pathways is not prohibited specifically is not correct._ _3. Whether the lower appellate court went wrong in relying on the decision reported in 1990 (1) KLT 136 KER 1995 Madras 179 since those reasons are not applicable to the facts and circumstances of the case._ _4. Whether the lower appellate court is justified in disposing the case without considering the issue No.1 framed by the trial court._ _5. Whether the failure of the lower appellate court in assessing the evidence in its correct perspective lead to wrong finding make it necessary for interference by this Hon'ble Court.”_ 7. The learned Government Pleader appearing for the State contended that the first appellate court has grossly erred in law and facts in decreeing the suit in favour of the plaintiff. All the three ways which are shown in the plaint S.A.402/1996. 6 run through the reserve forest and going by the provisions of the Forest Act, the plaintiff can have no manner of right to use any of the pathways. It is also contended that the appellate court was not correct in finding fault with the trial court in raising issue regarding easement rights. This was precisely the claim of the plaintiff and that was found against. The lower court has not found any definite right which the plaintiff possessed in order to use the way. Even assuming that the plaintiff has no other means of access to reach his property, that by itself is not a ground to hold that he has the right to use the pathway, portions of which runs through the reserve forest. It is also not correct to say that the plaintiff has no means of access other than the ways which run through the reserve forest. Attention of this court was drawn to the Commission report and it was pointed out that there are other means of access to the plaint schedule property. 8. Learned counsel appearing for the respondent on the other hand submitted that the court below has S.A.402/1996. 7 applied its mind and on the basis of equity and good justice has decreed the suit. May be that the plaintiff has failed to establish a right of easement either by prescription or by necessity. But the plaintiff has been able to show that the ways found by the first appellate court are the only ways available to him to reach his property and if the appellate court thought it fit to grant a decree in respect of R1 way there is nothing wrong with it. Learned counsel also drew the attention of this court that going by Ext.C6 plan it can be seen that R2 and R3 ways shown in Ext.C6 cannot be used by the plaintiff since trenches have been dug along the pathway and the only means of access is through R1 pathway. According to the learned counsel, the decree of the first appellate court is in accordance with law and does not call for any interference. 9. At the outset itself it may be noticed that in this Second Appeal by the State the scope of interference is considerably limited unless it is shown that the first appellate court decree is perverse and totally unjust. If on S.A.402/1996. 8 the basis of the facts and evidence in the case, it is found that the view taken by the lower appellate court is a possible one, then the decree has to be upheld. 10. The first appellate court noticed that the trial court has grossly erred in raising an issue regarding easement. According to the lower appellate court, there was no prayer for declaration of right of easement and there was no necessity for the lower appellate court to raise the issue for that effect. The lower appellate court has relied on the decision reported in **Krishna Pillai v. Kunjupilla** i (1991 K.L.T. 136) in support of its finding. The lower appellate court then relied on the decision reported in **K.V.K. Janardhanan v. State of Tamil Nadu** (AIR 1995 Madras 179) to hold in favour of the plaintiff. 11. The view of the court below that the trial court had erred in raising an issue regarding easement right is incorrect. One may have a look at the plaint first. In page 5 of the plaint the definite stand taken by the plaintiff is that he has acquired a right to use the pathway by easement by S.A.402/1996. 9 prescription and easement by necessity. In page 5 of the examination in chief, he deposed as follows: _(I have a right to use the way by right of prescriptive easement and easement by necessity)_ . 12. It is not necessary that in such cases, there should be a declaratory prayer to succeed in the suit. In a suit for injunction simplicitor is sufficient in such cases. The claim of the plaintiff is therefore clearly based on prescriptive right of easement and easement by necessity. The reliance placed on the decision reported in **Krishna Pillai's case** does not appear to be correct. Again that does not appear to be the correct law in view of the subsequent decisions. It has been held by this court that declaratory relief is not at all necessary and a suit for S.A.402/1996. 10 injunction is sufficient to protect the right claimed by way of easement rights. 13. The trial court had clearly found that the ingredients necessary to establish easement by prescription or easement by necessity have not been pleaded and established. Of course those words are used in both the pleadings and in the evidence of P.W.1. But it needs to be noticed that the plaintiff came into possession only on 10.8.1978, he did not choose to examine any of his predecessors in interest to prove that the ways involved in this case were used by them continuously, uninterruptedly as a matter of right or that these were the only access available to him to reach the plaint schedule property. 14. It also needs to be noticed that the plaintiff lays claim to three ways as has been found by the first appellate court. One fails to understand how in respect of three ways, the plaintiff could agitate the claim of easement by prescription and easement by necessity. The lower court has noticed that there is no reference in the documents of S.A.402/1996. 11 title of the plaintiff, ie., Exts.A1 and A2, regarding the pathways in question. The trial court has also found that in effect R1 pathway shown in C6 , almost in its entirety runs through the reserve forest. It is also found that portions of R2 and R3 pathways run through the reserve forest. The trial court has considered the evidence of P.Ws.2 and 3 and found they were of no help to the plaintiff. The trial court has also noticed that it is not as if the plaintiff has no other means of access to his property. It may be that he may not be able to take vehicles, but that is not a ground to claim right of way through the pathway running through the reserve forest. 15. It has to be said that the appellate court has not considered the issues in the proper perspective. The reliance placed on the decision reported in **K.V.K. Janardhanan's cases i** s without basis and has no application to the facts of the case. The mere fact that the plaintiff will be put to irreparable loss and injury if he is not allowed to use the pathway claimed by him is not a ground S.A.402/1996. 12 to grant a decree in his favour. Interestingly the finding of the appellate court was that the plaintiff has been using three pathways, namely, R1, R2 and R3 and then the court goes on to find that he may be found it difficult to take vehicles through R2 and R3 pathways and therefore he is entitled to a decree for the use of R1 pathway shown in C6 commission plan. 16. There are indications to show that the trenches were dug along R2 and R3 recently. It is not in dispute that almost the entire R1 pathway runs through the reserve forest area. Portions of R2 and R3 also runs through the reserve forest. The commission reports will show that there is another pathway available to the plaintiff even though he may not be able to take vehicles through that way to his property. It is true that there is an observation in Ext.C5 report that since trenches have been dug across R2 and R3, it is impossible for the plaintiff to take vehicles through those ways. S.A.402/1996. 13 17. The question now arises is as to whether the plaintiff can raise any claim to use any portion of the reserve forest area as a pathway. Even assuming that there is a well laid way, the question is whether the plaintiff can claim it as a matter of right to use the pathway. 18. It will be useful to refer to the provisions of the Kerala Forest Act. 19. Section 4 of the Act deals with the notification to be issued by the Government. Section 6 deals with the proclamation by the Forest Settlement Officer. Section 8 provides for enquiry by the Forest Settlement Officer into the claims made under Section 6 regarding the area covered by the notification. Section 9 of the Act deals with the powers of the Forest Settlement Officer. Section 10 deals with the order to be passed on closing the enquiry. The Act provides that from the decision of the Forest Settlement officer, appeal lies to the District Court. Forest Settlement Officer to report the result of his enquiry to the Government. Section 15 deals with the procedure to be followed by the S.A.402/1996. 14 Government in regard to admitted claims by Forest Settlement Officer. Section 16, which is relevant in the present context, reads as follows: _“_ _**16. Claims to rights of way etc** .: When the claim admitted relates to a right of way or to a water course, or to a use of water, the Government shall either come to an agreement with the claimant for the surrender of the right or pass an order admitting such right and providing for the exercise of such right.”_ Section 19 deals with the notification declaring forests reserved, which reads as follows: “ :- _**19. Notification declaring forests reserved**_ W _hen the proceeding prescribed in the preceding sections have been taken, the Government may public a notification in the Gazette specifying the limits of the forests which it is intended to reserve and declaring the same to be reserved from a date to be fixed by such notification._ _Copies of the notification shall also be published at the headquarters of each taluk in which any portion of the land included in such notification is situate and in every town, village_ S.A.402/1996. 15 _and headquarters of Panchayats in the neighbourhood of such land._ _From the date so fixed, the forest shall be deemed to be a “Reserved Forest”._ 20. Section 20 mentions that in respect of rights in respect of which no claim has been preferred will be extinguished on the issue of the notification. Section 22 bars acquisition of any right of any description in or over the reserve forest area. 21. It is therefore evident that no person has a right to use any portion of forest area once a notification is issued under Section 19 of the Act. Ext.B1 produced by the defendants in this case clearly show that Chennathu Nair forest, through which the pathway claims to be run has been notified long ago. There is no case for anybody that during the enquiry as contemplated under the earlier Act, any right over the pathway has been claimed or was accepted by the Government. S.A.402/1996. 16 22. At the risk of repetition one may say that the precise claim put forward by the plaintiff was one by way of easement by prescription and easement by necessity. Ext.C5 report will clearly show that at the mouth of R1 pathway there is a gate put up by the forest officials and none can pass through that way. It may be that the plaintiff may not be able to use R2 and R3 ways. First of all, he has not been able to establish that he is entitled to use any portion of the reserve forest area. Even assuming that the plaintiff is precluded from using R2 and R3 ways to take vehicles through his property that does not automatically mean that he has a right to use R1 pathway shown in Ext.C6 plan. 23. Ext. C5 report shows that there is a well laid road till the forest pathway shown in the sketch. Of course there is a way shown leading to the gate of the plaintiff on the western side. Ext.C5 report makes mention of iron gates and also plaintiff's property. Though there is an alternative way, he may not be able to take vehicles through a portion S.A.402/1996. 17 of the pathway. The pathway made mention of in Ext.C5 report after a certain distance leads to a paddy field and thereafter the passage available is only through the bunds of the paddy field. May be it is inconvenient for the plaintiff. But that by itself is not a ground to accept the claim of the plaintiff to use R1, R2 and R3 ways which runs through the reserve forest area. 24. The lower appellate court seems to have missed these vital aspects. After finding that there are trenches dug by the forest officials in R2 and R3 making it impossible for the plaintiff to use them, the appellate court has sympathetically allowed the plaintiff to use R1 pathway shown in Ext.C6 plan and granted a decree accordingly. It is not discernible from the judgment of the lower appellate court as to what exactly is the right conferred on the plaintiff to use R1 pathway. Even assuming that there is a pathway, it does not automatically lead to the conclusion that the plaintiff is entitled to use the same. It may be inconvenient for him to use the ways. It may even be that he had no S.A.402/1996. 18 other access to his property. But once the notification under the Forest Act is published, then unless it is shown that the right has been agitated, established, accepted and settled in accordance with the provisions of the Forest Act, no right accrues to the person concerned in respect of the forest area. 25. The appellate court decree is clearly unsustainable both on facts and in law. The lower appellate court has grossly erred in law in decreeing the suit in favour of the plaintiff. In the result, this appeal is allowed and the judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court are restored. There will be no order as to costs. ## **P. BHAVADASAN, JUDGE** sb.