Radhamani Amma and Others v. Saraswathy Amma and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 19TH DAY OF JULY 2012/28TH ASHADHA 1934** ## **RSA.NO. 917 OF 2012 (A)** **---------------------------------------AS.275/2010 OF THIRD ADDITIONAL DISTRICT COURT, KOLLAM OS.700/2008 OF PRINCIPAL MUNSIFF'S COURT, KOLLAM** ## **APPELLANTS/RESPONDENTS/DEFENDANTS:** **------------------------------------------------------------------** **1. RADHAMANI AMMA, AGED 64 YEARS D/O.KARTHYANI AMMA, MUKALUVILA VEEDU CHEMMAKKADU P.O.,PANAYAM VILLAGE, PIN-691602** **2. GOPAKUMAR, AGED 41 YEARS S/O.RADHAMANI AMMA, MUKALUVILA VEEDU CHEMMAKKADU P.O.,PANAYAM VILLAGE NOW AT FAHAHEEL KUWAI REP.BY HIS MOTHER AND POWER OF ATTORNEY HOLDER RAHAMANI AMMA D/O.KARTHIYANI AMMA, MUKALUVILA VEEDU CHEMMAKKADU P.O.,PANAYAM VILLAGE, PIN-691602** **3. KAVITHA KUMARI, AGED 35 YEARS W/O.GOPAKUMAR, MUKALUVILA VEEDU, CHEMMAKKADU P.O. PANAYAM VILLAGE, NOW AT FAHAHEEL KUWAI REP.BY HIS MOTHER AND** **POWER OF ATTORNEY HOLDER RAHAMANI AMMA D/O.KARTHIYANI AMMA, MUKALUVILA VEEDU CHEMMAKKADU P.O.,PANAYAM VILLAGE, PIN-691602** **BY ADVS.SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** **------------------------------------------------------------------** **1. SARASWATHY AMMA, AGED 57, W/O.APPUKUTTAN PILLAI, SARASWATHY NIVAS, CHEMMAKKADU P.O., PANAYAM VILLAGE, PIN 691 602.** ## **R.S.A. NO.917 OF 2012** **2. APPUKUTTAN PILLAI, AGED 63, RETD. K.S.E.B. EMPLOYEE, S/O.NARAYANA PILLAI, SARASWATHY NIVAS, CHEMMAKKADU P/O., PANAYAM VILLAGE, PIN 691 602.** **3. SIVAKUMAR, AGED 34, I.S.R.O EMPLOYEE S/O.APPUKUTTAN PILLAI, SARASWATHY NIVAS, CHEMMAKKADU P.O., PANAYAM VILLAGE, PIN - 691 602.** **4. RAJENDRAN PILLAI, AGED 54, ASST. SUB INSPECTOR OF POLICE, S/O.KARUNAKARAN PILLAI, RAJ NIVA, CHEMMAKKADU CHERRY, PANAYAM VILLAGE, CHEMMAKKADU P.O. PIN - 691 602.** **BY ADV. SRI.ALEX N.MATHEW )(CAVEATORS FOR BY ADVOCATE SHRI H. REMANAN ) R1 TO R4)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.917 of 2012 ==================================== Dated this the 19[th] day of July, 2012 J U D G M E N T** This Second Appeal is drawn from the judgment and decree of learned Third Additional District Judge, Kollam in A.S. No.275 of 2010 granting a decree declaring right of easement claimed by the respondents and granting a decree for prohibitory injunction concerning the plaint D schedule, described as a way having width of one metre and length of about 100 metres. 2. As per the averments in the plaint, the C schedule belongs to appellants 2 and 3 and that abuts the Panchayath road situated on the immediate east. On the west of the C schedule is the plaint A schedule belonging to respondents 1 to 3. On the further west is the plaint B schedule belonging to the 4[th] respondent. On the west of plaint B schedule, it is alleged, one Johnson owns and possess 34 cents. Plaint D schedule, according to the respondents is a one metre wide way originating from the Panchayath road on the eastern side, proceeding towards west along the northern portion of the plaint C schedule item No.2, the plaint B schedule and extending upto the 34 cents **R.S.A. No.917 of 2012** ## -: 2 :- belonging to Johnson. Respondents claimed that themselves and the said Johnson have right of easement by prescription over the plaint D schedule since that way is in existence and in user from 1956 onwards. They further claimed that they have no other access to the plaint A and B schedules. Nor has Johnson any access to the 34 cents belonging to him. Alleging that appellants are attempting to interfere with D schedule way, respondents laid the suit and prayed reliefs as first above stated. 3. Appellants denied existence of the way. They contended that respondents have other access to their respective items which they are using. They also claimed that when some of the owners of the property on the north of the plaint C schedule attempted to trespass into the C schedule, they filed O.S. No.312 of 2004 against those persons and obtained a decree. Appellants contended that respondents and others cut opened a new way through the northern side of the plaint C schedule. Thereon, first appellant filed E.P. No.162 of 2008 against the defendants in O.S. No.312 of 2004 and respondents 1, 2 and 4 for disobeyance of the decree in O.S.No.312 of 2004. 4. The trial court was not impressed by the evidence adduced by the respondents and found against the existence of ## **R.S.A. No.917 of 2012** ## -: 3 :- plant D schedule way claimed by them. Consequently the suit was dismissed. Respondents took up the matter in appeal. The first appellate court on a re-appreciation of the evidence accepted their plea, found in favour of existence of the plaint D schedule way and granted a decree as prayed for. That judgment and decree are under challenge in this Second Appeal. 5. It is contended by the learned counsel for the appellants that reversal of the judgment and decree of the trial court without stating cogent reasons is not correct. It is contended that there was no evidence before the first appellate court to hold in favour of existence of the plaint D schedule way as claimed by the respondents and at any rate, its alleged user for the statutory period. Learned counsel has placed reliance on ## the decision in **Ibrahimkutty v. Abdul Rahuman Kunju** (1992 [2] KLT 775) to contend that easement being a precarious right and a restriction on the proprietory right of the owner, has to be specifically pleaded and proved. No such plea or evidence is available in the case. It is also argued by the learned counsel that non-mention of northern boundary of respective items of plaint schedule as the disputed way in the relevant documents is by itself an indication that there was no such way. The learned **R.S.A. No.917 of 2012** ## -: 4 :- counsel submitted that in proof of existence of and alleged user of way, none of the neighbours has also been examined by the respondents. In the circumstances the first appellate court could not have reversed judgment and decree of the trial court. 6. The learned counsel who took notice for the caveators argued that there is sufficient evidence to prove existence of the plaint D schedule way, its user for the statutory period and hence reversal of judgment and decree of the trial court by the first appellate court which is based on evidence and proper appreciation of facts does not require interference and involves no substantial question of law. 7. The lie of plaint A to C schedules and the disputed plaint D schedule as claimed by the respondents is in such a way that the disputed D schedule is towards northern portion of plaint A to C schedules and extending upto the north-eastern portion of the 34 cents belonging to Johnson situated on the extreme west. The Panchayath road is admittedly on the extreme east abutting the plant C schedule. 8. No doubt in the documents or prior documents relating to the plaint A to C schedules there is no mention of the plaint D schedule as forming the northern boundary of the said ## **R.S.A. No.917 of 2012** -: 5 :- schedules. But according to the respondents, plaint D schedule passes through the plaint A to C schedules and hence non-mention of northern boundary as the way is of no much consequence. P.Ws2 and 4 who are the prior owners of plaint A and B schedules have given evidence that the plaint D schedule was in existence when they were in possession and enjoyment of the said items and they were using the said way. 9. Exhibit B2 is the survey plan prepared in the year 1973 by D.W.2, the Taluk Surveyor and relied on by the appellants. There, the disputed D schedule is not shown. The trial court acted upon the evidence of D.W.2 and Ext.B2 to say that if D schedule way was in existence even in the year 1973, necessarily that would have been shown in Ext.B2, plan. It is seen that the trial court has not referred to the explanation of D.W2 that only pathways having width of more than two metres would be shown in the survey plan (while according to the respondents, width of the plaint D schedule way only one metre). True that Rule 75 of the Survey and Boundary Rules stated that foot-path is also to be shown in the plan but D.W2 has an explanation for not mentioning the plaint D schedule pathway in Ext.B2, survey plan. Whether that explanation of ## **R.S.A. No.917 of 2012** ## -: 6 :- D.W.2 is acceptable or not is a different matter. As per the evidence of D.W2, the reason for his not mentioning the plant D schedule in Ext.B2 is that it was not having a width of 2 metres. Therefore trial court was not correct in relying on the evidence of D.W.2 and Ext.B2 to say that even in the year 1973 there is no such way as described as D schedule. 10. The trial court also relied on Ext.A8, release deed of the year, 2002 executed by the mother and sister of the 4[th] respondent releasing their right over the plaint B schedule to him to show that there is no mention of the plaint D schedule as northern boundary of plaint B schedule. Another item of evidence relied on by the appellants was the decision in O.S. No.312 of 2004 against some of the neighbouring owners of the plaint C schedule. That admittedly was an ex parte decree. Respondents have a contention that the said suit was a collusive one between the appellants and defendants in that suit. That was not a suit under Rule 8 of Order I of the Code of Civil Procedure so that the ex parte decree bound the respondents. Hence the decision in O.S. No.312 of 2004 cannot be imposed on the respondents. 11. It is the case of appellants that sometime immediately ## **R.S.A. No.917 of 2012** ## -: 7 :- before institution of the present suit, respondents cut opened a new pathway through the plaint C schedule. That version of the appellants would show that as on the date of institution of the suit, the plaint D schedule way was in existence. Then the question is whether it was newly cut opened as pleaded by the appellants or it existed earlier. The Advocate Commissioner has reported in Ext.C2 that the plaint D schedule way on the north of plaint C schedule has a width of one metre. There were eleven granite pillars erected on the side of the road separating the plaint D schedule way from the plaint C schedule. The Commissioner reported that those granite pillars had an oldness of about 10 years. Much was argued by the appellants as to the assessment of oldness of the granite pillars by the Advocate Commissioner. The Advocate Commissioner when examined as P.W5 asserted the assessment of oldness of the granite pillars he has made and reported in Ext.C2. True that the oldness may not have been ascertained by the Advocate Commissioner with arithmetical precision but the assessment made by the Advocate Commissioner gives an indication that version of the appellants that plaint D schedule was newly cut opened by the respondents is not correct. ## **R.S.A. No.917 of 2012** ## -: 8 :- 12. True that respondents did not examine any of the neighbours to prove their case. But I referred to the evidence of P.Ws2 and 4 who were enjoying the plaint D schedule for access to their respective items before the same came to the respondents. That evidence was found to be acceptable to the first appellate court. 13. It is pointed out by learned counsel from the evidence of P.Ws.1 and 5 that there is an alternative way towards the south-western side of the properties available to the respondents. Per contra learned counsel for the respondents has referred to Ext.B6, copy of report obtained by the appellants in execution of the decree in O.S .No.312 of 2004 and the evidence of P.W.5, the Advocate Commissioner that he found bushes (at the place at which according to P.Ws1 and 5, there was an alternative way). At any rate since the claim is prescriptive easement, existence or otherwise of the alternative way is not of much consequence. 14. On going through the judgment of the first appellate court it is seen that the first appellate court has considered the pros and cons of the case as contended by both sides and on the evidence found that the decision of the trial court is not sustainable. On re-appreciation of the evidence first appellate ## **R.S.A. No.917 of 2012** **==> picture [41 x 10] intentionally omitted <==** court accepted the case of the respondents, found that there is no other alternative access for them to reach plaint A to C schedules and granted a decree accordingly. That in my view involves no substantial question of law. The Second Appeal is dismissed. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv