# IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 15[TH] DAY OF JUNE 2021 / 25TH JYAISHTA, 1943
## RSA NO.651 OF 2020
AS 35/2019 OF DISTRICT COURT, ALAPPUZHA, DTD.06.07.2020
O.S.No.790/2015 ON THE FILE OF THE ADDITIONAL MUNSIFF'S COURT, ALAPPUZHA DTD.26.2.2019
## APPELLANT/APPELLANT/PLAINTIFF:
P.T.JOHNY, AGED 54 YEARS, S/O.P.P.THOMAS, PALLIPARAMBIL VEEDU, PUNNAPRA.P.O, ALAPPUZHA.
BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN
## RESPONDENTS/RESPONDENTS/DEFENDANTS:
- 1 KHADI AND VILLAGE INDUSTRIES BOARD, REPRESENTED BY ITS SECRETARY, OFFICE OF KHADI AND VILLAGE INDUSTRIES BOARD, VANCHIYOOR , THIRUVANANTHAPURAM 695 001.
2 THE PROJECT OFFICER, KHADI AND VILLAGE INDUSTRIES BOARD, DISTRICT KHADI BOARD OFFICE, NEAR MUNICIPAL STADIUM, ALAPPUZHA 688 001.
BY ADV SRI.N.RAJAGOPALAN NAIR, SC,
KERALA KHADI AND VILLAGE INDUSTRIES BOARD
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 31.3.2021, THE COURT ON 15.06.2021 DELIVERED THE FOLLOWING:
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## **JUDGMENT**
The plaintiff in O.S.No.790 of 2015 on the file of the Additional Munsiff's Court, Alappuzha is the appellant. The defendants are the respondents. The appellant instituted the suit seeking a decree of permanent prohibitory injunction restraining the defendants from constructing compound wall on the Northern boundary of plaint schedule item No.2 property, blocking the passage and vehicular traffic of the plaintiff through the plaint schedule item No.3 property, or obstructing the same in any manner. According to the plaintiff, the plaintiff is the owner in possession of plaint item No.1 property pursuant to the settlement deed No.948/2010 of Alappuzha Sub Registrar's Office. The plaint schedule item No.2 property is admittedly the property owned and possessed by the
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defendants 1 and 2. The 1[st] defendant is the Khadi and Village Industries Board and the 2[nd] defendant is its Project Officer respectively. The plaint item No.3 is described as a way available through the plaint schedule item No.2 property having a width of 3.5 metres and length of 40 metres starting from the gate situated in front of the residential building of the plaintiff on the Northern boundary wall of plaint item No.1 property. The plaintiff asserted that the plaint schedule item No.3 pathway is the only way available to the plaintiff to reach Punnapra Market Junction-Beach Road and the plaintiff has perfected right of easement by prescription over the same. Apprehending obstruction of the way, the plaintiff has filed the suit.
2. The defendants 1 and 2 entered appearance and filed written statement admitting title and possession of
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the plaintiff over plaint schedule item No.1 property. However, the plaint schedule item No.3 pathway described in the plaint through plaint item No.2 property is denied. They have contended that they had constructed a road through plaint item No.2 property for transporting raw materials and finished goods from the Khadi Unit in the plaint schedule item No.2 property. They have further contended that the plaintiff has an alternative pathway for ingress and egress and this suit is experimental in nature.
3. During the trial, PWs.1 and 2 were examined on plaintiff's side and marked Exts.A1 to A4. Ext.B1 was marked on the side of the defendant. Ext.C1 series were marked as Court Exhibits.
4. The learned Munsiff, on the evidence of PW1, PW2, Exts.A1 to A4 and Ext.C1, rejected the case of the appellant that plaint item No.3 schedule property does not
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come within the purview of easement right as contemplated under Section 15 of the Easements Act and the plaintiff has failed to prove the right claimed by him. The suit was therefore dismissed. The appellant challenged the decree and judgment before the District Court, Alappuzha in A.S.No.35/2019. The learned District Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in this R.S.A.
5. Heard Sri.S.Sanal Kumar, the learned counsel for the appellant and Sri.N.Rajagopalan Nair, the learned Standing Counsel for the respondents.
6. The learned counsel for the appellant submitted that the existence of plaint schedule item No.3 pathway has been established as per Ext.B1 deed supported by the oral evidence of PWs.1 and 2. It is contended that the
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plaint schedule item No.3 pathway is the only pathway to the house of the plaintiff in the plaint schedule item No.1 property. It is further argued that even if no right of easement by prescription is proved, the existence of a pathway and its user as a matter of right for a long period is sufficient to invoke the principle of doctrine of lost grant in this case. Relying on **Secretary of State for India in Council v. Maharaja of Bobbili** [Laws (PVC) 1919 7 154 Privy Council], **Raja Braja Sundar Deb & another v. Moni Behara and others** [AIR (38) 1951 SC 247], **Braja Kishore Jagdev v. Lingraj Samantaray & Others** [(2000) 6 SCC 540] and **Varghese v. Jose Mathew** [2014 (3) KLT 1065], the learned counsel for the appellant contended that although the plaintiff failed to prove prescriptive right of easement in the land belonging to the defendants, he is legally entitled to claim such right by
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long user on the basis of a presumed grant provided there is no prejudice to the defendants in the case.
7. The learned counsel for the defendants pointed out that the definite plea was one of easement by prescription under Section 15 of the Easements Act though the necessary ingredients to attract the provisions are absent in the case. Hence, the learned counsel for the defendants submitted that the plaintiff cannot set up a different case at the second appellate stage to defeat the contentions of the defendants.
8. In paragraph 5 of the plaint, the plaintiff asserted as follows:-
_“The plaintiff and his family, in continuation with his predecessors in interest are using the plaint schedule item No.3 road as a pathway as well as for plying vehicles to reach the northern road, openly, uninterrupted by anybody "as of right for more than 50 years, as a prescriptive right. The_
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_plaintiff has no other way except the plaint scheduled item No.3 property to reach the Punnpra market junction Beach road on the north. The plaintiff and his family members are using the plaint schedule item No.3 property for vehicular traffic for a long period without any interruption from any body.”_
9. It is clear from the pleadings that the plaintiff claimed easement by prescription over the plaint schedule item No.3 pathway. However, in paragraph 6 of the plaint it is averred that the plaint schedule item No.3 pathway was constructed by the predecessor of the plaintiff with the consent and concurrence of the prior owners of the property solely for the usage of the plaintiff and his predecessors. When the plaintiff, who was examined as PW1 before the trial court, stated that he has been using plaint schedule item No.3 pathway with the permission of the prior owner. It is a fact that the plaint schedule item
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No.3 pathway has been identified by the Commissioner in Ext.C1 report. However, the defendants 1 and 2 denied the claim of easement right over plaint schedule item No.3 pathway. Admittedly, the defendant is the owner in possession of plaint schedule item No.2 property. It is clear that the pleadings in the case are not specific or precise. The plea is not sufficient to highlight the particular easement claimed by the plaintiff. It is a fact that having failed to prove the necessary ingredients to attract Section 15 of the Easements Act, the plaintiff has set up a different case at the second appellate stage. There is no evidence adduced by the plaintiff to prove that the plaint schedule item No.3 pathway was formed by the contribution of land by both parties.
10. With regard to the right of easement by prescription, both the courts below have concurrently
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found against the plaintiff. Ordinarily, the court can find a case and decide the case only on the basis of the pleadings of the parties. In a case where the claim is for an easement right, it is all the more necessary that the pleadings should be specific and precise. It is settled law that the easement right is a precarious right claimed over the property of another.
11. An easement right is not one of the ordinary rights of ownership. Hence, the plaintiff is obliged to plead the nature of his title thereto so as to clearly show the origin of the right, whether it arises by statutory prescription, or express or implied grant, or the old common law method of a lost grant. If the right of easement is a precarious right claimed over the property of another, it is highly essential that the pleadings should be precise. On a careful reading of the plaint in this case,
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it is clear that the plaintiff failed to specifically plead the easement claimed by him. The issue of lost grant pleaded first time in second appeal was not raised before the trial court. In fact, no pleading was advanced for the said purpose. The trial court and the first appellate court concurrently entered a finding that the plaintiff failed to prove the following ingredients to attract a claim of easement by prescription:-
i) a pre-existing easement having been enjoyed by the dominant owner;
ii) peaceably;
iii) as an easement; iv) as of right; v) openly;
vi) for 20 years; and
vii) without interruption
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12. So far as doctrine of lost grant is concerned, the plaintiff failed to set up such a plea before the trial court. On the basis of the evidence adduced, the courts below negatived the contentions of the plaintiff.
13. In a second appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact that the plaintiff failed to establish the plea of easement by prescription is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. In fact, as stated earlier, the doctrine of lost grant has not been pleaded in this case. It is not the case of the appellant that the decision rendered by the two courts below on any material question violated
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any settled question of law or was vitiated by perversity. It is the case of the appellant that the principle of lost grant has not been considered by the two courts below. The first appellate court examined the evidence on record at length and arrived at a reasoned conclusion that the plaintiff has not proved the ingredients contemplated under Section 15 of the Easements Act and the alleged permissive use of a plaint item No.3 pathway does not create easement by prescription. The finding is based on cogent and binding documents of title including Ext.B1 and Ext.C1 documents. In the case on hand no question of law is involved. To be a question of law involved in the case, there must be first, a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact. No such question of law is involved in the case. Hence this R.S.A. cannot be entertained.
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For the reasons discussed above, this R.S.A. is
dismissed in limine. There will be no order as to costs.
Sd/- **N.ANIL KUMAR, JUDGE**
skj
