Parvathy, W/o Late Govindan; Rajeevan P.P.; Devutty P.P.; Jyothy P.O. v. Arathil Kandathil Veetil Sarada Amma, D/o Meenakshi Amma; Babu, S/o Late Govindan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 28TH DAY OF FEBRUARY 2017/9TH PHALGUNA, 1938** **SA.No. 583 of 1999 (C) -----------------------** **AGAINST THE JUDGMENT & DECREE IN AS 51/1996 of SUB COURT, HOSDRUG DATED 28-11-1998** **AGAINST THE JUDGMENT & DECREE IN OS 170/1995 of MUNSIFF COURT, HOSDRUG DATED 22-07-1996** **APPELLANTS/RESPONDENTS/NO.3 SUPPL. RESPONDENTS 4 TO 6 IN AS, DEFENDANTS:** **------------** |**1.**|**PARVATHY, W/O. LATE GOVINDAN,**| |---|---| ||**AGRICULTURIST, RESIDING AT ACHIKOVVAL,**| ||**PILICODE POST, HOSDURG TALUK,**| ||**KASARAGOD DISTRICT**| |**2.**|**RAJEEVAN P.P.**| ||**S/O. LATE GOVINDAN, RESIDING AT ACHIKOVVAL,**| ||**PILICODE POST, HOSDURG TALUK,**| ||**KASARAGOD DISTRICT**| |**3.**|**DEVUTTY P.P., D/O.LATE GOVINDAN,**| ||**RESIDING AT ACHIKOVVAL,**| ||**PILICODE POST, HOSDURG TALUK,**| ||**KASARAGOD DISTRICT**| |**4.**|**JYOTHY P.O., D/O.LATE GOVINDAN**| ||**RESIDING AT ACHIKOVVAL,**| ||**PILICODE POST, HOSDURG TALUK,**| ||**KASARAGOD DISTRICT**| ||**BY ADV. SRI.M.SASINDRAN**| ## **RESPONDENTS/PLAINTIFF APPELLANTS & 2ND RESPONDENT/PLAINTIFF & 2ND DEFENDANT:** **---------** **1. ARATHIL KANDATHIL VEETIL SARADA AMMA D/O.MEENAKSHI AMMA, RESIDING AT PILICODE VILLAGE, PILICODE POST, HOSDURG TALUK, KASARAGOD DISTRICT** **2. BABU, SO. LATE GOVINDAN ACHIKOVVAL,PILICODE POST, HOSDURG TALUK, KASARAGOD DISTRICT** **R1 BY ADV. SRI.K.P.DANDAPANI (SR.)** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A. HARIPRASAD, J. ------------------------------S.A.No.583 of 1999 ---------------------------------------------Dated this the 28[th ] day of February, 2017** ## **JUDGMENT** Legal heirs of original defendant in O.S.No.170 of 1995 before the Court of Munsiff, Hosdurg are the appellants herein. The plaintiff in the suit is the 1[st] respondent. 2[nd] defendant in the suit is the 2[nd] respondent in this appeal. 2. Heard the learned counsel for the appellants and the 1[st] respondent. 3. Short facts relevant for disposal of the appeal are as follows: Plaint schedule property belongs to the 1[st] respondent. It is situated on the eastern side of the property belonging to the appellants and the 2[nd] respondent. Both the plots take in residential buildings. As per the plaint averments, on 13.04.1995, the original defendants attempted to trespass upon the property by demolishing the eastern earthen wall (kayyala) put up by the plaintiff. It is alleged that the **S.A.No.583/1999** **2** defendants intended to form a road through the plaint schedule property after demolishing the Kayyala. Hence, the plaintiff filed a suit for permanent prohibitory injunction against the defendants. 4. Defendants filed a written statement contending that they have a right of way through the plaint schedule property. They claimed easement right by prescription as well as easement of necessity. It is their case that for the last 50 years, the defendants have been using a pathway through the plaint schedule property. According to them, the suit was filed immediately after blocking the pathway. They have preferred a complaint before Chandera Police and the matter was dragged on one pretext or other. The suit is without any bonafides. The plaintiff/1[st] respondent is not entitled to get any relief because they had approached the Court with unclean hands. 5. The plaintiff herself testified as PW-1 before the trial court. Three witnesses were examined on the side of the defendants. Exts.A1 to A4 were marked on the plaintiff's side. Exts.C1 and C2 are the Commissioner's plan and report. **S.A.No.583/1999** **3** 6. After considering the rival contentions, the trial court dismissed the suit finding that the plaintiff/1[st] respondent is not entitled to get prohibitory injunction as prayed for. 7. Aggrieved by the finding, the plaintiff took up the matter in A.S.No.51 of 1996 before the Subordinate Judge, Hosdurg. The appeal was allowed by the lower appellate court and the suit was decreed. That is challenged in this appeal. 8. Learned counsel for the appellants submitted that the lower appellate court failed to consider the vital pleas raised by the appellants. According to him, even though easement of necessity is also claimed by the appellants through the property of the 1[st] respondent, it is fairly conceded that easement of necessity has not been proved. Further, another pathway in existence has been seen by the Commissioner. What is claimed now is only a prescriptive easement right to walk through the 1[st] respondent's property to reach a public road on the northern side. 9. Learned counsel for the 1[st] respondent contended **S.A.No.583/1999** **4** that the lower appellate court is perfectly right in dismissing the contentions of the appellants and decreeing the suit. According to him, in order to establish the plea of prescriptive easement, there is no sufficient pleading in the written statement, having taken to the pleas in the written statement raised by the appellants and their predecessors. 10. In paragraph 4, it is pleaded by the appellants that they have a right to walk through the plaint schedule property and through the property situated on the north of the plaint schedule property in order to reach a public road situated further north. Except saying that they were using the pathway for about 50 years the necessary ingredients required to be established under Section 15 of the Indian Easements Act, 1882 (in short, the Act) has not been stated. For clarity, Section 15 of the Act is extracted hereunder: “Acquisition by prescription: - Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land, or things affixed thereto, has been peaceably received by **S.A.No.583/1999** **5** another person's land subjected to artificial pressure, or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.” 11. On a perusal of the Section, it is clear that what is required to establish a prescriptive easement is that the claimant must have peaceably and openly enjoyed the right of way and he should have claimed title to the right of way and it must have been enjoyed as an easement, as of right, without interruption and for a minimum period of 20 years. It is well settled by judicial pronouncements that there must be definite pleadings regarding the prescriptive easement right because easement is a restriction on another man's property right. For the same reason, right of easement cannot be lightly **S.A.No.583/1999** **6** inferred as it may cast a burden on another person's right. Hence, it is clear that rule of definite pleadings should be insisted in a case of prescriptive easement. On a perusal of the written statement in this case, there is absolutely no averment could be seen to indicate the essential ingredients required under Section 15 of the Act. 12. It is also equally settled that in the absence of pleadings, the evidence adduced regarding a point cannot be looked into. In other words, a fact which is not specifically pleaded cannot be proved at the time of evidence is a well accepted proposition in law. Therefore, the lower appellate court is correct in finding that the prescriptive easement right claimed by the appellants was not properly pleaded in the written statement. 13. Learned counsel for the 1[st] respondent drew my attention to the admission by DW-1 during cross examination that the appellants had been using the pathway through the plaint schedule property on account of the permission granted by the plaintiff. This also goes to the root of the appellants' contention because right conferred by Section 15 of the Act **S.A.No.583/1999** **7** refers to a right exercised as of right. Any semblance of permission would take away the prescriptive easement right is an equally settled proposition of law. Therefore, the lower appellate court is perfectly right in finding that the appellants failed to establish a prescriptive easement right. 14. Learned counsel for the appellants contended that the plaintiffs are not entitled to get any reliefs because they have suppressed defendants' claim in the suit and approached the court with a suit for injunction. As an answer to this contention, learned counsel for the 1[st] respondent contended that since the 1[st] respondent never accepted or recognized the right of the appellants to walk through their property as an easementary right, there was no occasion for them to plead the contentions raised by the appellants. The submission is worthy of noticing. 15. Learned counsel for the appellants relied on **Varghese v. Jose Mathew [2014 (3) KLT 1065]** to contend a proposition that even if the evidence do not satisfy the rigor in Section 15 of the Act, theory of lost grant should be applied to find that they are entitled to walk through the plaint **S.A.No.583/1999** **8** schedule property. I have carefully gone through the facts and circumstances in **Varghese's case** . It is seen from the decision that this Court has taken note of the existence of pathway running through the defendants' property and reaching up to the plaintiff's property . That apart, there was evidence to show that it had been used not only by the plaintiff, but by other persons. In that context, it was held that if it is proved that there does exist a way as alleged in the plaint and it has been used for a considerably long period, i.e., over 20 years, then merely because the ingredients to attract Section 15 of the Act are not established, the Court will not be justified in declining the relief. This principle, though unchallengable, cannot be applied to this case where there is absolutely no pleading to attract the right under Section 15 of the Act. Further, at the stage of evidence, it has been admitted that the right of way was exercised through plaintiffs' property on the basis of a permission given by the plaintiff, which itself goes against the concept of prescriptive easement. Therefore, the principle in the said decision cannot be applied. **S.A.No.583/1999** **9** On reconsideration of the entire facts and circumstances, I am of the view that the lower appellate court is legally and factually correct in finding that the appellants are not entitled to get any right of way through the plaintiff's property. In that context, it can only be held that the plaintiff's apprehension of trespass is proper. Therefore, the court below rightly allowed the appeal and decreed the suit. I find no reason to interfere. The questions of law framed are decided against the appellants and the appeal is dismissed accordingly. All pending interlocutory applications will stand dismissed. JV **A. HARIPRASAD JUDGE**