P. V. Job v. Lucy Ittup and Anil Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 17TH DAY OF MAY 2016/27TH VAISAKHA, 1938** **RSA.No. 1109 of 2012 () -----------------------AS 72/2010 of I ADDL.DISTRICT COURT, ERNAKULAM OS 632/2009 of II ADDL.SUB COURT,ERNAKULAM** **---------** ## **APPELLANT/APPELLANT/PLAINTIFF :** **-----------------------------** **P.V.JOB, S/O.LATE VARKEY,AGED 74 YEARS, POOTHULLIL HOUSE, ERNAKULAM TOWN NORTH P.O., KANAYANNOOR TALUK.** **BY ADVS.SMT.PRAICY JOSEPH** **SRI.JOY GEORGE** **SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM SMT.TANYA JOY** **RESPONDENT(S)/RESPONDENTS 2 & 3/DEFENDANTS 2 & 3:** **------------------------------------------------** **1. LUCY ITTUP,W/O. ITTUP @ POULOSE, POOTHULLIL HOUSE, ERNAKULAM TOWN NORTH P.O., KANAYANNOOR TALUK, PIN-682 018.** **2. ANIL KUMAR, S/O. LUCY ITTUP,** - **POOTHULLIL HOUSE, ERNAKULAM TOWN NORTH P.O., KANAYANNOOR TALUK, PIN-682 018.** **BY ADV. SRI.MANU GEORGE KURUVILLA SMT.RINU JOSE** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 05-04-2016, ALONG WITH RSA. 205/2013, RSA. 210/2013, THE COURT ON 17-05-2016 DELIVERED THE FOLLOWING:** **bp** ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **R.S.A.No.1109 of 2012** ## **&** ## **R.S.A.Nos.205 & 210 of 2013. ----------------------------------------------Dated 17[th] May, 2016.** ## **J U D G M E N T** These appeals are preferred challenging the common judgment in A.S.Nos.72 of 2010, 157 of 2010 and 158 of 2010 on the file of the District Court, Ernakulam. Among the said appeals, A.S.No.72 of 2010 was preferred by the plaintiff in O.S.No.632 of 2009 on the file of the Sub Court, Ernakulam challenging the decision in the said suit to the extent it goes against him and A.S.No.158 of 2010 was preferred by defendants 2 and 3 in the said suit to the extent it goes against them. O.S.No.632 of 2009 was tried along with O.S.No.1028 of 2007 filed by defendants 1 and 2 in the said suit and disposed of by a common judgment. A.S.No.157 of 2010 was preferred by the plaintiffs in O.S.No.1028 of 2007 challenging the R.S.A.Nos.1109/12, 205 & 210/13 2 decision in the said suit. By the common judgment impugned in these second appeals, all the appeals were dismissed by the appellate court. As the suits were tried jointly treating O.S.No.1028 of 2007 as the lead case, I am referring to the parties and the properties in this judgment as they appear in O.S.No.1028 of 2007. 2. O.S.No.1028 of 2007 is a suit for declaration and injunction. The defendant is the younger brother of the first plaintiff. The second plaintiff is the wife of the first plaintiff. The plaint A schedule property was obtained by the first plaintiff as per Ext.A1 partition deed. The plaint B schedule property was obtained by the defendant as per the very same partition deed. During 2006, the first plaintiff settled the plaint A schedule property to the second plaintiff. The plaint A schedule property is situated abutting the public road namely Old Railway Station Road. The plaint B schedule property lies on the north-western side of the plaint A schedule property. The plaint C schedule is a pathway having a length of 130 feet R.S.A.Nos.1109/12, 205 & 210/13 3 and a width of 10 feet connecting the plaint B schedule property with the Old Railway Station Road through the western boundary of the plaint A schedule property. According to the plaintiffs, the plaint B schedule property is abutting a public road on its north; that no way was provided in Ext.A1 partition deed for the plaint B schedule property as the road on its north was intended to be used for access to the said property; that the defendant has been using the plaint C schedule pathway for access to the plaint B schedule property from the Old Railway Station Road as permitted by the first plaintiff and that of late, the defendant is asserting a right to use the plaint C schedule pathway for access to the plaint B schedule property from the Old Railway Station Road. The suit was therefore filed seeking a declaration that the access of the defendant to the plaint B schedule property is through the public road on its north and for realisation of compensation for the unauthorized use of the plaint C schedule pathway. A decree of permanent prohibitory injunction restraining the defendant from using the plaint C R.S.A.Nos.1109/12, 205 & 210/13 4 schedule pathway for access to the plaint B schedule property was also sought. 3. The defendant resisted the suit contending that he never used the road on the northern side for access to the plaint B schedule property as the said road was separated from the property by a compound wall from the very inception; that the user of the plaint C schedule pathway by the defendant is not as permitted by the first plaintiff; that he has been using the plaint C schedule pathway as an easement, as of right, openly, continuously and uninterruptedly from 1982 onwards and that therefore he has prescribed a right of easement over the plaint C schedule pathway. 4. Prior to the institution of the suit, the defendant filed O.S.No.217 of 2007 before the Munsiff Court, Ernakulam seeking a decree declaring his right of easement by prescription over the plaint C schedule pathway and a decree of permanent prohibitory injunction restraining the plaintiffs and the son of the second plaintiff from causing obstructions to him R.S.A.Nos.1109/12, 205 & 210/13 5 in the matter of using the plaint C schedule pathway for access to the plaint B schedule property. O.S.No.217 of 2007 was transferred to the Sub Court, Ernakulam and re-numbered as O.S.No.632 of 2009 to be tried along with O.S.No.1028 of 2007. Thereupon, as noted above, the suits were tried jointly treating O.S.No.1028 of 2007 as the lead case. 5. The trial court, on an elaborate consideration of the materials on record, found that the plaint C schedule pathway is a way having a length of 130 feet and a width of 10 feet and that the defendant has been using the same for the beneficial enjoyment of the plaint B schedule property. Though the defendant contended that he has been using the plaint C schedule pathway for vehicular access also from 1982 onwards, the trial court found that the defendant has purchased a car only in the year 1995 and that therefore the said case set up by the defendant cannot be accepted. Consequently, the trial court dismissed O.S.No.1028 of 2007 and decreed O.S.No.632 of 2009 in part declaring that the defendant has prescribed a R.S.A.Nos.1109/12, 205 & 210/13 6 right of easement over a portion of the plaint C schedule pathway having a width of 3 feet through its western boundary. A decree of prohibitory injunction as claimed by the defendant in O.S.No.632 of 2009 was also granted to him for effectuating the prescriptive right declared in the suit. The plaintiffs challenged in appeal the decisions in both the suits. The defendant also challenged the decision in O.S.No.632 of 2009 to the extent the same goes against hm. The appellate court, on a reappraisal of the materials on record, confirmed the decision of the trial court. Hence these appeals. 6. Heard the learned Senior Counsel for the appellants in R.S.A.Nos.205 and 210 of 2013 and the learned counsel for the appellant in R.S.A.No.1109 of 2012. 7. The plaint C schedule pathway is described by the defendant in O.S.No.632 of 2009 as a pathway having a width of 15 feet and a length of 166 feet, whereas the pathway is described by the plaintiffs in O.S.No.1028 of 2007 as a pathway having a width of 10 feet and a length of 130 feet. In R.S.A.Nos.1109/12, 205 & 210/13 7 Ext.C1 report, the Advocate Commissioner in O.S.No.1028 of 2007 has categorically stated that the measurements of the pathway connecting the plaint B schedule property to the Old Railway Station Road through the western side of the plaint A schedule property as described by the plaintiffs in O.S.No.1028 of 2007 is correct. The defendant has not disputed the said finding of fact in these appeals. As such, I shall proceed to decide the rights of parties as if the plaint C schedule pathway is a pathway measuring a width of 10 feet and a length of 130 feet. 8. While accepting the proposition that the existence of an alternate way is not a ground to reject a plea of easement by prescription, the learned Senior Counsel for the appellants in R.S.A.Nos.205 and 210 of 2013 contended that the case set up by the defendant in the written statement for justifying the user of the plaint C schedule way for access to the plaint B schedule property is that the public road on its north cannot be used for vehicular traffic. According to the learned R.S.A.Nos.1109/12, 205 & 210/13 8 Senior Counsel, in a situation of this nature, when the materials on record especially Ext.A8 series and Ext.A9 series of photographs and the reports of the Advocate Commissioner appointed in the suit indicate beyond doubt that the public road on the north of the plaint B schedule property can be used for vehicular traffic, the courts below were not justified in upholding the plea of easement set up the defendant. According to the learned Senior Counsel, in the facts and circumstances of the case, the courts below ought to have accepted the case of the plaintiffs that the user of the plaint C schedule pathway by the defendant was as permitted by the first plaintiff. It was also pointed out by the learned Senior Counsel that the evidence tendered by the defendant as DW1 as regards the width of the way on the north of the plaint B schedule property as also the purchase of motor car by him are utter falsehood. According to the learned Senior Counsel, in the circumstances, the courts below ought not have granted any relief to the defendant. The learned Senior Counsel also relied R.S.A.Nos.1109/12, 205 & 210/13 9 on the decision of the Apex Court in **Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria** [2012 KHC 4181 (SC)] in support of his contention that persons deposing falsehood before court shall be appropriately dealt with as otherwise the court will not be in a position to administer justice in the true sense. 9. Per contra, the learned counsel for the appellant in R.S.A.No.1109 of 2012 contended that the fact that the defendant has been using the plaint C schedule pathway for access to the plaint B schedule property right from 1982 when the defendant has put up his residential building therein has not been disputed by the plaintiffs. The learned counsel pointed out that the case of the plaintiffs was only that the said user was as permitted by the first plaintiff. As such, according to the learned counsel, the only issue is as to whether the user of the plaint C schedule pathway by the defendant was as of right. It was pointed out by the learned counsel that the first plaintiff as PW1 has admitted in cross examination that the user R.S.A.Nos.1109/12, 205 & 210/13 10 of the plaint C schedule pathway by the defendant was as of right. It was further pointed out by the learned counsel that in so far as the plaintiffs have no case that the defendant has been using only a portion of the plaint C schedule pathway, there is no justification for the courts below to limit the width of the pathway to 3 feet while declaring the easement right prescribed by the defendant. As such, according to the learned counsel, the courts below ought to have decreed O.S.No.632 of 2009 as prayed for. 10. In the light of the submissions made by the learned counsel for the parties, the questions of law on which notice was ordered in these second appeals are re-framed as under: (i) Were the courts below justified in upholding the right of easement by prescription claimed by the defendant when it is established that the defendant has a motorable access to his property on its north? (ii) Were the courts below, on the facts, justified in rejecting the case set up by the plaintiffs that the user of the plaint C schedule R.S.A.Nos.1109/12, 205 & 210/13 11 pathway by the defendant was as permitted by the first plaintiff? (iii) Were the courts below, on facts, justified in holding that the defendant has prescribed a right of easement only over a portion of the plaint C schedule pathway when it was admitted by the plaintiffs themselves that the defendant has been using the plaint C schedule pathway as described in the plaint for access to the plaint B schedule property right from 1982? 11. Question Nos.(i) and (ii): There cannot be any dispute to the proposition that the existence of an alternate way is not relevant in the context of deciding a claim of easement by prescription in respect of a way. The specific case of the defendant is that though a way was in existence on the north of the plaint B schedule property even at the time of Ext.A1 partition deed, the said way was separated from the plaint B schedule property by a compound wall from the very inception and that therefore there was no occasion at all for the defendant to use the said way for access to the plaint B schedule property. Though the existence of a public road on the north of the plaint B schedule property is admitted by the R.S.A.Nos.1109/12, 205 & 210/13 12 defendant, the plaintiffs have no case that the defendant has ever used the said road for access to the plaint B schedule property. As such, in so far as the claim of the defendant is that he has prescribed a right of easement over the plaint C schedule pathway, I do not think that the width and the question whether the same can be used for vehicular access are relevant in the context of deciding the disputes between the parties in these cases. 12. It is beyond dispute that the defendant has constructed his residential building in the plaint B schedule property during the year 1982. It is also beyond dispute that the defendant has been using the plaint C schedule pathway for access to the plaint B schedule property since 1982. According to the plaintiffs, the user of the plaint C schedule pathway by the defendant was as permitted by the first plaintiff and according to the defendant, the user was as of right. The fact that the user of the plaint C schedule pathway by the defendant was for the convenient enjoyment of the plaint B schedule R.S.A.Nos.1109/12, 205 & 210/13 13 property is not in dispute. As such, there cannot be any dispute to the fact that the said user was as an easement. As PW1, the first plaintiff has categorically admitted in his evidence that since 1982, the defendant has been using the plaint C schedule pathway without his permission. It is settled that when it is shown that a pathway is used without permission for more than the statutory period, it is possible to draw an inference that the user was as of right. The first plaintiff as PW1 has also admitted that the user of the plaint C schedule pathway by the defendant from 1982 was peaceable, continuous and without interruption. The relevant portions of the deposition of the first plaintiff read thus: “jaÐOU vº]SpLa]pOU BeV vu]Rft]´fV. 82 oOf¤ Nkf] y] kŸ]W vu]Wt]sPRa Af]NWo]\ÿV jaWOWpLp]qOÐO. ” **==> picture [86 x 22] intentionally omitted <==** “v}aV v\ÿ AÐO oOf¤ j]¡v]ZVjU, j]qLSƒkU, yoLiLjkqoLp] AjO^jOU WOaOUmvOU vLzj¾]sOU AsæLRfpOU y] kŸ]Wp]sPRa pLNf R\pÅ]qOÐO. (Q) wq] pLeV. kr´]ŸOU pLNf R\pÅ]qOÐO (A).” R.S.A.Nos.1109/12, 205 & 210/13 14 In the light of the aforesaid facts and the statements made by the first plaintiff in his evidence, the finding rendered by the courts below that the defendant has acquired a right of easement by prescription over the plaint C schedule pathway is perfectly in order. Question Nos.(i) and (ii) are thus answered accordingly. 13. Question No.(iii): As noted above, it is admitted by the plaintiffs that the defendant has been using the plaint C schedule pathway for access to the plaint B schedule property right from 1982 when the defendant has put up his residential building therein. Likewise, as noted above, there is nothing on record to indicate that the defendant has ever used the road on the northern side of the plaint B schedule property for any purpose whatsoever. As such, as noted by the trial court, it can be taken that the building materials for construction of the residential building in the plaint B schedule property were also transported through the plaint C schedule pathway. It is seen that the right prescribed by the defendant for using the plaint C R.S.A.Nos.1109/12, 205 & 210/13 15 schedule pathway for the beneficial enjoyment of the plaint B schedule property was confined by the courts below to 3 feet solely on the ground that the defendant has purchased a motor car only in the year 1996. One need not own a motor car for using an access to his property for vehicular movement. In so far as the plaintiffs have no case that the user of the plaint C schedule pathway by the defendant for the beneficial enjoyment of the plaint B schedule property was confined to 3 feet and in so far as it is admitted by the first plaintiff that the defendant has been using the plaint C schedule pathway for vehicular movement also since 1982, the impugned decision confining the right acquired by the defendant over plaint C schedule pathway to 3 feet, is perverse. Question No.(iii) is thus answered in favour of the appellant in R.S.A.No.1109 of 2012. In the result, R.S.A.Nos.205 and 210 of 2013 are dismissed and R.S.A.No.1109 of 2012 is allowed declaring that the plaintiff in O.S.No.632 of 2009 has acquired a right of R.S.A.Nos.1109/12, 205 & 210/13 16 easement by prescription over the plaint C schedule pathway as described in O.S.No.1028 of 2007. All the interlocutory applications in the appeals are closed. Sd/- **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)