Puthan Veettil Padmini v. Cannanore District Muslim Educational Association and Abdulla

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN TUESDAY, THE 1ST DAY OF APRIL 2014/11TH CHAITHRA, 1936 RSA.No. 484 of 2013 () ----------------------- AGAINST THE JUDGMENT IN AS 31/2007 of SUBORDINATE JUDGE'S COURT, PAYYANNUR DATED 23-01-2013 AGAINST THE JUDGMENT IN OS 350/2003 of MUNSIFF COURT, THALIPARAMBA DATED 31-05-2007 APPELLANT/APPELLANT/PLAINTIFF : -----------------------------------------------------PUTHAN VEETTIL PADMINI, D/O.PARVATHI AMMA, AGED 62 YEARS, HOUSEWIFE, RESIDING AT KURUMATHUR AMSOM PANAKKAD DESOM, NEAR FIRE STATION, P.O. KARIMBAM, TALIPARAMBA TALUK, KANNUR DISTRICT- 670141 BY ADV. SRI.R.SURENDRAN RESPONDENTS/RESPONDENTS/DEFENDANTS : ---------------------------------------------------------------------- 1. CANNANORE DISTRICT MUSLIM EDUCATIONAL ASSOCIATION (SOCIETY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT), REPRESENTED BY ITS SECRETARY K.V.MUHAMMED KUNHI MASTER, AGED 76 YEARS, SIR SYED COLLEGE, TALIPARAMBA, RESIDING AT FAROOK NAGAR, TALIPARAMBA AMSOM AND DESOM, P.O.TALIPARAMBA, KANNUR DISTRICT - 670 141 2. ABDULLA, FATHER'S NAME NOT KNOWN, AGED 76 YEARS, RESIDING NEAR KARIMBAM POST OFFICE, TALIPARAMBA AMSOM AND DESOM, P.O.KARIMBAM, TALIPARAMBA TALUK, KANNUR DISTRICT-670141 R1 BY ADV. SRI.R.D.SHENOY (SENIOR) ADV. SMT.R.LEELA SMT.N.K.SHEEBA R1 & R2 BY ADVS.SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01-04-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **P.BHAVADASAN, J. ------------------------------------R.S.A.No.484 of 2013 ----------------------------------------Dated this the 1[st] day of April, 2014** ## **JUDGMENT** The plaintiff filed the suit for declaration of prescriptive right of easement in respect of the plaint B schedule path way alleged to be running through the property owned by the defendants. While the trial court held it as a public path way, the appellate court was not inclined to hold so. But both the courts below concurrently found that the plaintiff had failed miserably to establish the ingredients necessary to attract the prescriptive right of easement under Section 15 of the Indian Easements Act. 2. Short case by the plaintiff is that he owns plaint A schedule property which is situated on the north-eastern side as shown in the Commissioner's report Ext.C2 and plan. The defendants owned property on the western side of the plaint schedule property. According to the plaintiff, B schedule property is the way that has been used over the statutory period as a matter of right openly and uninterruptedly and therefore he acquired a prescriptive right of easement. 3. The defendants disputed both the extent of way and the right of easement claimed by the plaintiff. R.S.A.No.484 of 2013 2 4. On the pleadings, issues were raised by the trial court and evidence consists of testimony of PWs.1 and 2 and documents marked as Exts.A1 to A7 from the side of the plaintiff. The defendants examined DWs.1 and had Exts.B1 to B17 marked. The findings entered into by the court below have already been referred to. ## 5. Notice was issued on the following questions of law : - “a) Whether existence of alternative way is relevant in a case for establishment of easementary right by prescription ? - b) When existence of a way is established from the facts and evidence of the case and oral evidence is adduced regarding the span of use, can the court decline to grant relief in the absence of any contrary direct evidence ? - c) When the servient tenement was a government land and later transferred to defendant society and the user of land continued by the holder of the dominant tenement, is not the plaintiff entitled to tack on his enjoyment while the servient tenement belonged to the Government along with the period of enjoyment after the assignment to the first defendant ? - d) Whether continuous residence in the dominant tenement is required to be proved to establish use of way through the servient tenement for a period of 20 years to constitute easement by prescription ? - e) Has the first appellant court failed to consider all relevant facts placed before it while considering the first appeal and properly exercised its jurisdiction ?” 6. The learned counsel appearing for the appellant pointed out that the courts below were unjustified in coming to the conclusion that the plaintiff has not established that she had used the plaint B schedule path way over a statutory period. She traces back the title of the plaint A schedule R.S.A.No.484 of 2013 3 property to the assignment deed of 1957 and then to a purchase certificate of 1977 and later to a partition deed of 1986. The learned counsel for the appellant also pointed out that PWs.1 and 2, the plaintiff and an independent witness swear to about having used the path way as shown in the plaint. According to the learned counsel, the courts below were not justified in coming to the conclusion that probably the property owned by the defendants might have been lying open state and people might have been walking through it at random and that by itself cannot confer any right to use the way. The courts below have failed to note that the documents of 1986 and 1987 which are produced as Exts.A3 and A4 clearly show the existence of a way on the western side of plaint A schedule property. The suit was laid only in 2003. The learned counsel also pointed out that the plaintiff is entitled to tack on the period of the right exercised by the predecessor in interest of the plaint A schedule property. In support of his contentions he relied on the decision reported in _**Kesavan Velayudhan v. Kannan Kunjukutty [1991(1) KLT 885]**_ . 7. The learned Senior Counsel Sri.R.D.Shenoy appearing for the respondents on the other hand pointed out that in paragraph 5 of the plaint, the plaintiff made mention of the R.S.A.No.484 of 2013 4 path way running through the properties of several other persons and none of them have been examined to establish the case of the plaintiff. Going by the Ext.C2 plan, the learned Senior Counsel pointed out that if the claim of the plaintiff is true, the way must have been used by several other persons and the plaintiff had not ventured to examine any one of them. It was under those circumstances, the court below was inclined to hold that even assuming that there does exist a way as alleged in the plaint, the use of the same has not been proved to confer any right on the plaintiff. The learned Senior Counsel went on to point out that the finding that the use for the statutory period has not been proved is a finding arrived on appreciation of the evidence. In this case, it is a pure question of fact and if that be so, interference invoking power under Section 100 of the Code of Civil Procedure is not warranted. 8. As rightly pointed out by the learned Senior Counsel Sri.R.D.Shenoy, both the courts below have concurrently found that even assuming that there does exist a way shown as B Schedule, as a matter of right, satisfying ingredients of Section 15 of the Indian Easement Act have not been proved by the plaintiff. Of course the trial court has treated it as a public way whereas in cross appeal by the defendants on that score, the R.S.A.No.484 of 2013 5 lower appellate court disagreed with the trial court and vacated that finding of the trial court. 9. Even though the plaintiff in paragraph 5 of the plaint had specifically stated that the path way runs through the properties owned by several persons, it is strange to note that the plaintiff did not chose to examine any one of them. Ext.C2 plan is not helpful in this regard as that does not show the properties of the persons made mention of in paragraph 5 through whose property the way is alleged to be running and leading to the property owned by the plaintiff on the northeastern side. 10. The Commissioner's report discloses that there are other means of access to the plaintiff's property. As rightly noticed by the lower appellate court, it is possible that at one point of time, the properties were lying open and people might have been walked at random. But walking at random does not confer a right of way. One has to notice that the plaintiff was shy to examine one of his neighbours or persons alleged to be owning properties adjacent to the property of the plaintiff through which he exercised the right of way leading to the plaint B schedule path way. 11. May be that, a beaten track or mud road as such R.S.A.No.484 of 2013 6 might have been noted by the Commissioner. But the mere existence of the road does not create any right to use of the way, unless he establishes the ingredients necessary to attract any one of the right conferred under the statue. 12. In the case on hand, as already noticed, none of the other users of the plaint B schedule property, even though the plaintiff made mention in the plaint, has been examined. 13. For convincing and cogent reasons, courts below chose not to rely on the evidence of PW2, the so called independent witness who was examined by the plaintiff. 14. Both the courts below came to the conclusion that PW2 dances to the tunes of the plaintiff. It is in this context both the courts viewed the non examination of any other independent witness in support of the claim made by the plaintiff as significant omission. The plaintiff may be justified in not scheduling properties owned by the other persons, as probably they did not object to the use of the way. She could have at least examine any one of them to show that there did exist a way as alleged and it was being used as claimed by the plaintiff. It is for the above reasons the courts below declined to grant decree in favour of the plaintiff. 15. There can be no doubt regarding the question that if R.S.A.No.484 of 2013 7 prior use is established, plaintiff can tack on that period of user. But there is no evidence in this regard. 16. The findings entered by the court below cannot be termed as perverse or not warranted on the evidence on record. The courts below have considered the evidence in considerable detail and it is found that even assuming that there exists a way as alleged, its user for statutory period has not been established by the plaintiff. There is no reason to take a different view. This appeal is without merits and accordingly the same is dismissed. Sd/- **P.BHAVADASAN, JUDGE** AV /True Copy/ P.A to Judge