PRADEEP KUMAR v. P. RAJASEKHARA PANICKER

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **MONDAY, THE 4TH APRIL 2011 / 14TH CHAITHRA 1933** **SA.No. 918 of 1995(A)** **--------------------------** **AS.57/1993 of SUB COURT, CHERTHALA OS.283/1991 of PRL.MUNSIFF COURT, CHERTHALA** **....................** ## **APPELLANT(S):APPELLANT/DEFENDANT** **-----------------------------------------------** - ***1 P. RAJASEKHARA PANICKER, RESIDING AT SREE MANDIRAM, VARANADU P.O., KOKKOTHAMANGALAM VILLAGE CHERTHALA KIZHAKKUM MURI. ((DIED.ADDL. A2 TO 4 IMPLEADED)** **2. VIJAYAMMA, W/O. LATE RAJASEKHARA PANICKER, RESIDING AT SREEMANDIRAM,VARANADU P.O., KOKKOTHAMANGALAM VILLAGE, CHERTHALA KIZHZKKUM MURI** **3. RAJESH, S/O. -DO- -DO- -DO-** **4. RAJASHREE, D/O. -DO- -DO- -DO-** - **8 ADDI. APPELLANTS 2 TO 4 ARE IMPLEADED AS THE LR'S OF DECEASED SOLE APPELLANT AS PER ORDER DATED 25/08/2009 IN I.A. NO.1926/2009.** - **BY SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE ADVS. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SMT.GEETHA P.MENON** ## **RESPONDENT(S): RESPONDENT/PLAINTIFF** **--------------------------------------------------** ## **PRADEEP KUMAR, S/O.GOPINATHAN NAIR, RESIDING AT GOPISADANAM, KOKKOTHAMANGALAM VILLAGE, CHERTHALA KIZHAKKUM MURI.** ## **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **svs** ## **P.BHAVADASAN, J.** **----------------------------** ## **S.A.No. 918 of 1995 ---------------------------------** ## **Dated this the 4[th] day of April, 2011** ## **JUDGMENT** Faced with the concurrent findings against him, the defendant in O.S.No.283/1991 before the Munsiff's Court, Cherthala has come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff laid claim over plaint B schedule pathway both by way of easement by prescription and necessity. He claimed to be in possession of plaint A schedule property. The plaintiff and the members of his family have no other way except the plaint B schedule pathway so as to reach the eastern public way. Since the defendants tried to obstruct the right to use of the pathway, the suit was laid. 3. The defendant resisted the suit. He disputed the title of the plaintiff over the A schedule property. It was pointed out that there was neither a way through his property nor had the plaintiff or anybody else ever used any portion of his property as a pathway. He denied that the plaintiff had any manner of right to use any portion of his property as a way. He therefore, prayed for a dismissal of the suit. ## **S.A.No. 918 of 1995 2** 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs.1 to 3 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendant did not adduce any evidence. Exts. C1 and C1(a) and C2 are the commissioner's report and plan. 5. On an appreciation of the evidence in the case, the trial court found that the plaintiff had miserably failed to establish the claim of easement by prescription, as he was not able to prove the necessary ingredients to attract the said provision. However, the court then went on to find that the plaintiff is entitled to the plaint B schedule pathway by way of easement by necessity and decreed the suit accordingly. 6. Disappointed defendant carried the matter in appeal as A.S.No.57/1993. The lower appellate court though concurred with the findings of the trial court regarding easement by prescription came to a conclusion that the plaintiff has got easement right of way by way of necessity over plaint B schedule pathway and that plaintiff is entitled to the declaration. The appeal was dismissed. 7. Notice is seen issued on the following substantial questions of law: **S.A.No. 918 of 1995 3** _(A) Has not the lower appellate court erred in law in declaring an easement of necessity when the evidence on record indicates an alternate pathway providing ingress and egress to the alleged dominant heritage ?_ _(B) Have not the courts below erred in law in declaring an easement of necessity over the pathway claimed by the plaintiff, solely on the basis that the said pathway alone would lead the plaintiff to a particular public road situated to one side of the alleged dominant heritage and in totally ignoring other pathways provided to be existant giving access to the outside world ?_ _© Is not the decree of the lower appellate court unsustainable for totally ignoring the evidence regarding an alternate pathway while proceeding to declare an easement of necessity ?_ _(D) Where a plaintiff sues for declaration of an easement of prescription over an alleged apparent and continuous pathway and the said claim is found against, can the court declare an easement of necessity over the same alleged pathway ignoring the mandates contained in Section 14 and 22 of the Indian Easements Act ?_ _(E) When the plaintiff in a suit for declaration of easement of necessity fails to plead and prove that he has an indefeasible right to walk over the property of persons lying beyond the limits of the alleged servient heritage in order to reach a public road, and that such right is being exercised in presenti, will not the court be acting illegally in granting the declaration sought ?_ _(F) Is not a suit for declaration of easement of necessity badly constituted when the plaintiff neglects to implead all persons over whose lands the pathway passes leading ultimately to a public road ?_ _(G) Does a person who sets up a mere spes succession is to a property, entitled to sue for declaration of easements thereof and has the plaintiff in the instant suit established his competency to sue ?_ ## **S.A.No. 918 of 1995 4** 8. The learned counsel appearing for the appellant pointed out that the courts below have grievously erred both on facts and in law in decreeing the suit. It is pointed out that the plaintiff was not sure about the nature of right claimed by him. He pleaded both easement by necessity as well as prescription. Even assuming that he could take alternate contention he had to elect at the time of trial. Attention was drawn to the fact that both the courts below have found that the plaintiff is not entitled to use plaint B schedule pathway by way of easement by prescription. 9. The learned counsel appearing for the appellant pointed out that the lower court had omitted to note that the commissioner's report, discloses an alternate way for the plaintiff. Attention was drawn to written statement. It is pointed out that not only the defendant has denied the use of plaint B schedule pathway as alleged by the plaintiff but had also pointed out that there is an alternative way for the plaintiff is to gain access to the outside world. If he has access to the outside world through other means, however inconvenient it may be, that defeats the claim of easement by necessity. In support of the above contentions, learned counsel relied on the decisions stated in **(1988(1) KLT 493) Mathu v. Varied** , ( **1961 KLT 829) Zachariah v. Kaliyani Amma and others** , **(1986** ## **S.A.No. 918 of 1995 5** ## **KLT 203) Maniyan Krishnan v. Nanukuttan.** 10. It is pointed out that at any rate having set up both claims and having failed to get a favorable order on one count, the court below were not justified in then considering the question of easement by necessity. According to the learned counsel, the judgment and decrees are clearly unsustainable both on facts and in law. 11. On an earlier occasion when this second appeal was taken up for consideration it was noticed that the counsel for respondent shown in the list was no more and therefore, this court directed to issue notice to the respondent regarding the date of hearing. There was no response from the respondent. 12. After having heard the learned counsel for the appellant, it appears there is considerable force in the submissions made by the learned counsel for the appellant. On going through the plaint, it is not clear as to what exactly is the nature of right pleaded by the plaintiff. In one portion he would say that it is easement by necessity and in another portion it is easement by prescription. In fact, the court below have noticed the plaintiff himself is not sure in the nature of the claim. 13. The definite claim of the plaintiff is that in order to gain access to the outside world from the plaint A schedule property, he ## **S.A.No. 918 of 1995 6** has only the plaint B schedule pathway. One may now refer to the decision reported in **(1992 (2) KLT 775) Ibrahimkutty v. Abdul Rahumankunju** is held as follows: “Ordinarily a court can find a case and decree the suit only on the basis of the pleadings of the parties. In case, where the claim is for an casement right, it is all the more necessary that the pleadings should he specific and precise. There is reason therefor. ‘Easement’ is a precarious and special right. The right of easement is one which a person claims over a land which is not his own. Since the right of easement is a precarious and special right claimed over the land of another, it is highly essential that the pleadings should he precise. On a careful reading of the plaint in the case, it should be stated that the plaintiffs did not specifically plead the nature of the easement claimed by them. Indeed, the issue framed in the case is also of a general and vague nature. That is why the trial court found in favour of casement of necessity and also by prescription. The lower Appellate Court found customary casement and casement by prescription. The qualitative and quantitative requirement for the different kinds of casements arc to a great extent mutually exclusive. That is the reason why the courts have always insisted that whenever a right of easement is claimed, the pleadings should be precise and clear and not vague. (para.9)” 14. It is to be noticed that the ingredients to attract the prescriptive right and easement by necessity are totally different and ## **S.A.No. 918 of 1995 7** origin, continuation and termination are different. Being a precarious right, the law insists strict pleadings with regard to the right claimed. 15. In the case on hand it is not discernible from the plaint whether the claim is easement by way of necessity or prescription. One cannot omit to note that the reliefs sought for in the plaint which read as follows: 1. The plaintiff's right of way over 'B' schedule property may be declared. 2. The defendant or anybody under him may be restrained by an order of prohibitory permanent injunction from obstructing the 'B' schedule pathway being used by the plaintiff or his family members. 3. The plaintiff may be awarded his costs from the defendant and his assets. 4. Such other and further reliefs which this Hon'ble court deems fit and necessary for the ends of justice. 16. Both the courts below have found that the plaintiff is not entitled to the prescriptive right of easement. Then the question is whether the plaintiff can succeed on a plea of easement by necessity. 17. One may refer to the decision relied on the by the learned counsel for the appellant ie, **(1988(1) KLT 493) Mathu v. Varied** , ( **1961 KLT 829) Zachariah v. Kaliyani Amma and others** , **(1986 KLT 203) Maniyan Krishnan v. Nanukuttan.** ## **S.A.No. 918 of 1995 8** 18. The above decision deal with the claim of easement by necessity. The decisions lay down the ingredients required to establish the plea of easement by necessity. It arises on severance of tenements. It must be one without which the dominant tenant cannot be enjoyed at all without imposing the burden on the servient tenant. The alternate way of enjoyment howsoever inconvenient it may be, if it could be used as a matter of right, defeats the claim of easement by necessity. 19. In the case on hand, Ext.C1 commissioner's report makes mention of pathway on the southern side of the plaint schedule property leading to the west ending in a public road. One may remember that the claim in the present case is that the plaintiff needs to use the defendants property to gain access to the road on the eastern side. Pleadings do not disclose that he has no other way to the outside world except through the plaint B schedule pathway. Even assuming that the other pathway suggested by the commissioner in Ext.C1 report and plan is inconvenient or is not very comfortable, that by itself is not a ground to grant easement by necessity over plaint B schedule pathway. However, one cannot omit to note that the plaintiff was claiming both easement by necessity as well as easement by prescription at the same time, unsure about his right. ## **S.A.No. 918 of 1995 9** 20. It is also significant to notice that there is a opening on the southern boundary of the plaint A schedule property which is in consonance with the alternate way suggested by the commissioner. Apart from the fact that the pleadings are indefinite, inconsistent and contradictory, the lower appellate court was not justified in saying that there was no way through the southern side so that the plaintiff is entitled to get the right of easement by necessity through the plaint B schedule pathway. The question is not whether there is a pathway as shown as B schedule but the important question is whether the plaintiff has alternate access to the outside world. There is nothing to show that the way made mention of the commissioner on southern boundary of the plaint schedule property cannot be used by the plaintiff. 21. The lower appellate court also finds fault with the defendant for not mounting the box and deposing as to his case. Here one should remember that the burden is on the plaintiff to show that he is entitled to use the plaint B schedule pathway as a matter of right. The defendant can rest, contended by pointing out that even on the pleadings and evidence adduced by the plaintiff, he is not entitled to succeed. No burden can be imposed on the property owned and possessed by the defendant unless there are compelling circumstances ## **S.A.No. 918 of 1995 10** and legal right to do so. 22. In the light of what has been stated above even assuming that the defendant had not adduced any evidence that cannot improve the prospects of the plaintiff's case. The plaintiff has to succeed on his own pleadings and evidence. 23. For the above reasons, the questions of law formulated are answered in favour of the appellant. The findings and conclusions drawn by the lower appellate court cannot find support in law and therefore, are clearly unsustainable. In the result, the second appeal is allowed. The impugned judgments and decrees of the lower courts are set aside and the suit stands dismissed. There will be no order as to costs. ## **P.BHAVADASAN, JUDGE.** ln