Panangottum Tharemmal Sara v. P.T. Kuttialy and Murichandy Jameela

**CR** # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 17[TH] DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943 RSA NO. 128 OF 2010 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 28.08.2009 IN AS 44/2007 OF SUB COURT, VADAKARA AGAINST THE JUDGMENT AND DECREE DATED 26.06.2007 IN OS 159/2006 OF MUNSIFF COURT, NADAPURAM APPELLANT/RESPONDENT IN AS NO.44/2007 – SUB COURT, VATAKARA, PLAINTIFF IN OS NO.159/2006 – MUNSIFF, NADAPURAM: ``` ``` PANANGOTTUM THAREMMAL SARA D/O.KUNHISOOPPY, AGED 54 YEARS, HOUSEWIFE, NOW, RESIDING AT KANIYANKANDI, VILLIAPPALLY AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, KERALA STATE. ``` ``` BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY SRI.N.M.RAJAGOPAL ``` ## **`RESPONDENTS/APPELLANTS IN AS NO.44/2007 – SUB COURT, VATAKARA, DEFENDANTS IN OS NO.159/2006 – MUNSIFF, NADAPURAM`** ``` 1P.T.KUTTIALY, S/O ABDULLA, AGED 42 YEARS, TRADER,PANANGOTTUM THAREMMAL MOKERI AMSOM DESOM, VATAKARA TALUK,KOZHIKODE DISTRICT, KERALA STATE. ``` ``` 2MURICHANDY JAMEELA, W/O.KUTTIALI AGED 38 YEARS, HOUSE WIFE,, PANANGOTTUM THAREMMAL MOKERI AMSOM DESOM, VATAKARA TALUK,KOZHIKODE DISTRICT, KERALA STATE. ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON ``` - `17.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:` ``` RSA NO.128 of 2010 ``` ``` 2 ``` **CR** ## **K.BABU, J.** ------------------------------------------- ## R.S.A. No.128 of 2010 --------------------------------------------- Dated this the 17[th] day of February, 2022 ## **JUDGMENT** The plaintiff in O.S.No.159/2006 on the file of the Munsiff's Court, Nadapuram is the appellant. The defendants are the respondents. 2. Material facts relevant for the adjudication of this appeal are as follows: 2.1. Plaint 'A' schedule property originally belonged to the father of the plaintiff. In 1971, the plaintiff and others assigned their right over the property to Kunhamina and others as per registered deed No.576/71. Subsequently, in 1978 under a registered deed No.2744/1978, the plaintiff acquired right over 'A' schedule property. The plaintiff is the absolute owner in possession of the plaint 'A' schedule property. 2.2. Plaint 'B' schedule property forms part of the property held by the defendants. Plaint 'B' schedule property ``` RSA NO.128 of 2010 ``` ``` 3 ``` is a pathway leading to plaint 'A' schedule property from the eastern Changaramkulam-Narikkottumchal road. The pathway has been in existence from time immemorial. Plaint 'B' schedule way runs on the southern side of the property held by the defendants. The plaintiff has no other way than 'B' schedule to access the eastern public road. The plaintiff has been using the plaint 'B' schedule pathway continuously, openly and uninterruptedly from 1978 onwards and even prior to that period, the way was in existence. The plaintiff acquired the right of easement over 'B' schedule property. 2.3. In 2002, defendant No.1 acquired the property on the eastern side of 'A' schedule to which plaint 'B' schedule forms a part. The plaintiff is residing 22 kms away from the plaint schedule property. On 19.11.2006, when she visited the plaint schedule property, either side of plaint 'B' schedule property was found closed by putting fencing, thereby blocking the 'B' schedule way by the defendants. As a result, the plaintiff instituted the Original Suit for a mandatory injunction to remove the blocked fencing and for a perpetual prohibitory injunction against the defendants. 2.4. The defendants resisted the suit contending that no way as described in 'B' schedule exists. There never ``` RSA NO.128 of 2010 ``` ``` 4 ``` existed a way through the property of the defendants to access plaint 'A' schedule property from the eastern road. The plaintiff has been using another way through the western side of ‘A’ schedule property to access the public way on the western side. This way runs through the southwestern corner of the property owned by the brother of the plaintiff. The plaintiff has got direct access to plaint 'A' schedule property through the courtyard of her brother's house. The plaintiff, with an ulterior motive, set up the claim that the plaint 'B' schedule way has been in existence through the property of the defendants from time immemorial. Therefore, the plaintiff is not entitled to get the relief as prayed for in the suit. 3. The parties went to trial. PWs 1 to 4 were examined and Exts. A1 to A2 were marked on the side of the plaintiff. DWs 1 and 2 were examined and Ext.B1 was marked on the side of the defendants. Exts.C1 and C2 were also marked as Court Exhibits. 4. The Trial Court decreed the suit in favour of the plaintiff, holding that the plaintiff has right over a way having an average width of 1.5 feet. The defendants challenged the decree of the Trial Court in A.S.No.44/2007. The First ``` RSA NO.128 of 2010 ``` ``` 5 ``` Appellate Court set aside the decree and judgment passed by the Trial Court and dismissed the suit. 5. The plaintiff is in appeal before this Court under Section 100 of the CPC. 6. On 27.05.2010, this Court admitted the appeal on the following substantial questions of law:- “(1) Whether the Lower Appellate Court is justified in finding that for a claim of quasi easement of right of way alternative access will defeat the claim of the plaintiff (2) Whether the Lower Appellate Court was justified in turning down the claim on a 'pleading point' when pleadings were substantially made by the plaintiff to make out the claim of right of way by quasieasement.” 7. After hearing the learned counsel for the appellant, this Court formulated the following additional substantial question of law also: “(i) Have not the First Appellate Court misconstrued the evidence in holding that no way as described as 'B' schedule is in existence ?” 8. Heard Sri.R.Parthasarathy, the learned counsel appearing for the appellant/plaintiff. ``` RSA NO.128 of 2010 ``` ``` 6 ``` 9. The case of the plaintiff is that plaint 'B' schedule way has been in existence from time immemorial. The property originally belonged to the father of the plaintiff. The plaintiff and others acquired the right over 'A' schedule property as per a registered deed of 1942. Thereafter, the plaintiff and others assigned their right to Kunhamina and others, and later, the plaintiff acquired the right over the property as per Ext.A1 assignment deed. 10. The 'Tharavad' house of the plaintiff is situated on the immediate west of plaint 'A' schedule property. Defendant No.1 is the title holder of the property on the immediate east of plaint 'A' schedule property. The specific case of the plaintiff is that 'B' schedule way runs towards east through the southern side of the defendants' property and enters the eastern Changaramkulam-Narikkottumchal road. According to the plaintiff, she has been using this way continuously, openly, uninterruptedly from 1970 onwards and even prior to that period, the way was in existence. The plaintiff pleaded that she had no other way to access the eastern public road. 11. The challenge of the defendants is that there never existed a way, as pleaded by the plaintiff, and the ``` RSA NO.128 of 2010 ``` ``` 7 ``` plaintiff has been using the way that passes through the courtyard of her 'Tharavad' house on the western side. 12. The Trial Court found the existence of 1.5 feet wide way as pleaded by the plaintiff as the only way used by her to enter into the plaint 'A' schedule property from the eastern public road. The Trial Court noticed that the defendants blocked the pathway by erecting fencing. The First Appellate Court recorded the following findings while reversing the decree and judgment of the Trial Court; (a) the plaintiff failed to establish the existence of 'B' schedule way. (b) the plaintiff has not specifically pleaded the right of easement claimed by her (c) there is an alternative way which would negate the claim of the plaintiff. 13. The learned counsel for the plaintiff contended that the finding of the First Appellate Court that the plaintiff failed to establish the existence of 'B' schedule way is misconstruction of evidence. It is submitted that pleading supported by sufficient evidence has been established to record the finding that 'B' schedule way exists. The learned counsel further contended that the plaintiff is entitled to quasi-easement right in respect of 'B' schedule way, the ingredients of which have been specifically pleaded in the ``` RSA NO.128 of 2010 ``` ``` 8 ``` plaint. According to the learned counsel for the plaintiff, the existence of an alternative way is not a ground to refuse the right established by the plaintiff by way of quasi-easement in respect of 'B' schedule way. 14. Plaint 'B' schedule is described as a way having an approximate length of 150 feet and an average of width of 3 feet. The husband of the plaintiff gave oral evidence as PW1. He deposed that 'B' schedule way was in existence from time immemorial to access the eastern public road. According to PW1, 'B' schedule way was originally a ridge of paddy field before transferring the property by the plaintiff and other co-owners to defendant No.1. PW 1 stated that the plaintiff and other members of her family were using this way even before the transfer of the property to the defendants. According to PW1, after the formation of a mud road, one and a half years ago, on the western side, the plaintiff alone had been using the 'B' schedule way, which is the only way for her to access the eastern public road. PW1 has given evidence that the properties, including the defendants' property, were held as a single holding before 2002. PWs 2 to 4, the local residents supported the case of the plaintiff. They gave evidence about the existence of 'B' ``` RSA NO.128 of 2010 ``` ``` 9 ``` schedule way through the southern boundary of the defendants' property. According to PWs 2 to 4 they were also using the 'B' schedule way to access the eastern public road. 15. The challenge of the defendants is that the plaintiff has been using the way through the courtyard of the 'Tharavad' house to reach the mud road on the west. 16. The Commissioner appointed by the Trial Court prepared Ext.C1 report and Ext.C2 sketch. The Commissioner could find a well-defined way with a flight of steps starting from the courtyard of the 'Tharavad' house where the brother of the plaintiff is residing and ending in the southwestern corner of the defendants' property, touching the southern boundary of the plaint 'A' schedule property. The Commissioner has further reported that fencing was erected on the point where the way touches the defendants' property. The Commissioner also noticed fencing on the opposite end of 'B' schedule way, that is, on the eastern boundary of defendants' property which abuts the public road. The defendants did not mount the box. Two independent witnesses were examined on the side of the defendants. The oral evidence of DW1 goes in the line that a ``` RSA NO.128 of 2010 ``` ``` 10 ``` way was in existence towards east from the 'Tharavad' house. DW1 further admitted that the ‘B’ schedule way reaches the south-western corner of the defendants’ property. He affirmed that the old way is still in existence up to this point, and thereafter, the way is now not in existence in continuation of that point. The oral evidence of DW1 is somewhat an admission of the case of the plaintiff that a way was in existence which runs towards east from the 'Tharavad' house of the plaintiff to access the eastern public road. 17. On an analysis of the pleadings of the plaintiff corroborated by the oral evidence of PWs 1 to 4 and Exts.C1, report and Ext.C2, sketch and the admission of DW1, the defendants' witness, this Court comes to the conclusion that the plaintiff succeeded in establishing the existence of 'B' schedule way having an average width of 1.5 feet. The Trial Court has rightly recorded a finding to that effect. This Court is of the view that the First Appellate Court has misconstrued the evidence in holding that the plaint 'B' schedule property is not in existence. 18. The claim of the plaintiff is based on a right acquired as quasi-easement as provided under Section 13 ``` RSA NO.128 of 2010 ``` ``` 11 ``` ## (d) of the Indian Easements Act,1882. Section 13 of the Indian Easements Act reads thus:- ## **“13.Easements of necessity and quasieasements-** Where one person transfers or bequeaths immovable property to another,- (a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or (b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement; or (c) if an easement in the subject of the transfer or bequest is necessary, for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or (d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. Where a partition is made of the joint property of several persons,- (e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or (f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such ``` RSA NO.128 of 2010 ``` ``` 12 ``` easement. The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity. Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee. xxx xxx xxx xxx xxx xxx (emphasis added)” 19. Quasi-easement is an accommodation as it existed during the common ownership. The transferor, transferee, testator, legatee or parties to partition could get such rights. It arises only on severance of tenements. 20. Apparent and continuous easements which are necessary for the enjoyment of the dominant tenement in the state in which it was enjoyed at the time when it was severed from the servient tenement are called quasieasements. Acquisition of the quasi-easement is to be determined (1) with reference to the obvious permanence of the prior arrangement as manifest from the apparent existence of the convenience claimed and (2) with regard to the utility or non-utility of such convenience for purposes of enjoying the severed tenements as reasonably as they were ``` RSA NO.128 of 2010 ``` ``` 13 ``` enjoyed before. 21. The First Appellate Court has held that there was no sufficient pleading in the plaint to claim quasi-easement. This Court has carefully gone through the pleadings in the plaint. All the ingredients of quasi-easements, as defined in Section 13 of the Indian Easements Act, are pleaded in the plaint. The fact that the term ‘quasi-easement’ is not used is not a ground to hold that there is lack of pleadings. Therefore, the finding of the First Appellate Court that there are no pleadings cannot be sustained. 22. The First Appellate Court has further found that the existence of an alternative way dis-entitled the plaintiff to claim the right by way of quasi-easement. The Statute says that if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor is entitled to such easement. A quasi-easement will not extinguish even when the property is otherwise enjoyable. The test to be applied is whether the property is enjoyable without the easement as it was enjoyed before the severance. In **Leela v. Ambujakshy [1989 KHC 378]** , this Court held that in the case of a quasi-easement, the ``` RSA NO.128 of 2010 ``` ``` 14 ``` necessity is not absolute, but only qualified. It was held that quasi-easement is available even in cases where the property is otherwise enjoyable and the only condition is that without the easement it is not otherwise enjoyable in the way in which it was enjoyed till the severance. This Court in **Ram Mohan v. Narayanan Namboodiripad [1990 KHC 215]** , on quasi-easement held that the element of necessity may not be so absolute as in the case of an easement of necessity and unlike it a quasi-easement may not get extinguished by the cessation of the necessity. In the present case, the plaintiff, the transferor, was enjoying plaint 'B' schedule property to access the eastern public road. The alternative way noted by the Commissioner only enters an 'edavazhi' (a narrow lane), which would never dis-entitle the plaintiff to claim right over 'B' schedule way. In the case on hand, the plaintiff could establish that the right of quasi-easement claimed over 'B' schedule way, which is apparent and continuous, is necessary for enjoying 'A' schedule property in the way it was enjoyed at the time of transfer. Therefore, the findings of the First Appellate Court that the plaintiff is not entitled to quasi-easement right over 'B' schedule property is liable to be interfered with. ``` RSA NO.128 of 2010 ``` ``` 15 ``` Therefore, the judgment and decree passed by the First Appellate Court are liable to be set aside. In the result, the Regular Second Appeal is allowed. The judgment and decree passed by the First Appellate Court in A.S.No.44/2007 are set aside. The judgment and decree passed by the Munsiff's Court, Nadapuram, in O.S.No.159/2006 are restored. The parties are directed to bear their respective costs. Pending interlocutory applications, if any, stand closed. ``` Sd/- K.BABU JUDGE ``` VPK