Ratna Bai v. Valsala Kumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 RSA.NO. 109 OF 2010() --------------------------------AS.104/2008 OF ADDL. DISTRICT COURT (FAST TRACK-II), ALAPPUZHA OS.71/2006 OF PRINCIPAL MUNSIFF,ALAPPUZHA ....................** ## **APPELLANT -APPELLANT-1ST DEFENDANT** **RATNA BAI,AGED 74 YEARS, W/O. THANKAPPAN, KIZHAKKEMANGALAM, WEST OF KALAPURA TEMPLE, ALAPPUZHA.** ## **BY ADV. SRI.K.V.SADANANDA PRABHU** **RESPONDENT – FIRST RESPONDENT - PLAINTIFF** **VALSALA KUMAR, W/O. NATARAJAN @RAJAN. KUDUKKAPPARMBIL, PUNNAPRA.P.O.,ALAPPUZHA REPRESENTED BY AUTHORIZED AGENT, SREEDEVI, W/O. VIKRAMAN, THULASI PARAMBU, PUNNAPPRA.P.O.,** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** = = = = = = = = = = = = = = = = = = = = = = = = **R.S.A. NO.109 of 2010** = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 11[th] day of February, 2010 ## **J U D G M E N T** --------------------- Second Appeal arises from judgment and decree of learned Additional District Judge (Fast Track-II), Alappuzha in A.S. No.104 of 2008 confirming judgment and decree of learned Prl. Munsiff, Alappuzha in O.S. No.71 of 2001 declaring right of easement claimed by the respondent and granting a decree for prohibitory injunction against appellant interfering with user of the said way or reducing its width. Respondent instituted the suit through her Power of Attorney (P.W.1) alleging that she purchased plaint schedule item No.1 as per document No.2969/1992 certified copy of which is Ext.A2 and that she is staying away with her husband who is employed at Chennai. Item No.2 is the disputed portion of pathway passing through property of appellant having a length of 12 metres and width of six feet. Item No.3 is the portion of the same pathway going along item No.1. Respondent claimed that herself and predecessors-in-interest were using the said pathway for access to item No.1 as of right, continuously, uninterruptedly and openly for more than 32 years and thereby acquired a right of ## **R.S.A. No.109 of 2010** ## -: 2 :- way by prescription. It is contended that there is no other access to plaint item No.1 from the public road on the eastern side. It is contended that P.W.1 had no authority to institute the suit since Power of Attorney was not produced along with the plaint. Appellant denied existence of the disputed pathway and claimed that respondent and defendant Nos.2 to 6 (they are not parties to the Second Appeal) demolished northern portion of the fence on the east and west of her property on 21.1.2006 and spread red earth over it at a width of four feet. It is also the contention of appellant that respondent has other means of access to plaint item No.1. Since the property through which item No.2 allegedly passes belonged to herself and her brother, the brother is a necessary party and without him on the party array suit is not maintainable. Trial court negatived the contentions and found in favour of the right of easement claimed by the respondent and granted a decree but in respect of the width as described by the Advocate Commissioner in Ext.C1 series. Judgment and decree were confirmed by the first appellate court. Hence this Second Appeal urging by way of substantial questions of law whether plaint verified and signed by P.W.1 without proper authority when filed amounted ## **R.S.A. No.109 of 2010** ## -: 3 :- to proper institution of the suit in view of Order III, Rules 1, 2 and 6 of the Code of Civil Procedure (for short, “the Code”), whether brother of appellant was a necessary party and in his absence courts below could have granted declaration and injunction as prayed for and whether conclusion arrived at by the courts below regarding right of easement is against weight of evidence of the appellant. 2. It is contended by learned counsel that there was no proper authorisation for P.W.1 on the date of institution of the suit though subsequently respondent had executed Ext.A1, Power of Attorney in favour of P.W.1 ratifying institution of the suit as well. According to the learned counsel jurisdiction of the court has to be decided on date of institution of suit and placed reliance on the decisions in **Bhola Nath Varshney v. Mulk Raj Madan** ([1994] 2 SCC 127) and **Bhavanji Hansraj v. Lourdes Church, Perumanoor** (AIR 1999 Kerala 425). So far as institution of the suit is concerned it is seen from the judgment of the trial court and it is not disputed also that plaint is filed in the name of respondent represented by P.W.1 on the strength of oral authorisation. It is not disputed that in the meantime respondent executed Ext.A1, Power of Attorney authorising P.W.1 to conduct the ## **R.S.A. No.109 of 2010** ## -: 4 :- suit and ratifying institution of the suit by P.W.1. That amounted to proper authorisation and valid institution of the suit. The decisions relied on by the counsel do not apply to the facts of the case which only concerned authority of the person who filed the suit on behalf of plaintiff and did not relate to the jurisdiction of the court created by a statute as was the issue in the decisions relied (supra). Order III Rule 1 of the Code relied on by learned counsel states that any appearance, application or act in or to any court required or authorised by law to be made or done by a party in such court may, except where otherwise provided by any law for the time being in force be made or done by the party in person or by his recognised agent or by a pleader on his behalf, and who are 'recognised agents' is stated in Rule 2 of the said Order. Under Rule 2(a) recognised agent is a person holding power of attorney authorising him to make and do such appearances, applications and acts on behalf of such parties. Rule 6 however deals with agents for accepting service which has nothing to do with this case. Provisions relied on by the learned counsel do not say in my view, that at the time of institution of the suit there should be a written authority to make a valid presentation of the plaint. Referring to ## **R.S.A. No.109 of 2010** ## -: 5 :- ## Order VI Rule 14 of the Code and Rule 23 of the Civil Rules of Practice this Court in **Narayanan Nair v. John Kurien** (1988 [1] KLT 673) held that those provisions did not insist that plaint when filed by an authorised agent should be accompanied by a written authority. It was held that even oral authorisation is sufficient to make a valid presentation of the plaint and consequently a proper institution of the suit. It is seen from paragraph 3 of the judgment in that case that there was no written authorisation for the agent of party concerned. That decision applies to the facts of this case. Moreover the act of P.W.1 in representing, verifying, signing and filing the plaint has been ratified though subsequently as per Ext.A1. Hence the contention of appellant that there is no valid institution of the suit cannot be accepted and in the light of the decision which I have referred to above no substantial question of law in that regard is involved. 3. Next question is whether in the absence of brother of appellant on the party array courts below could have given a declaration regarding right of easement and injunction. According to the appellant her brother is a co-owner of the property through which the disputed pathway passes. Concededly brother of the ## **R.S.A. No.109 of 2010** ## -: 6 :- appellant has not been impleaded as a party. A “necessary party” means a party without whom no adjudication can be made, as distinguished from proper party. The claim of easement and prayer for injunction are made by the respondent against appellant alleging that the latter attempted to infringe right of respondent and obstructed her from using the pathway. If respondent has no complaint against the brother of the appellant and there is no case for her that brother of the appellant in any way infringed or attempted to infringe right claimed by the appellant it is not the law that brother of appellant ought to have been dragged into the litigation. Question whether the decision in the case is binding on the brother of appellant is an altogether different matter. This Court has held in **Varkey Joseph v. Mathai Kuriakose** (1992 [2] KLT 169) that in a suit for declaration of easement of right of way all the servient owners are not necessary parties. Only such of the servient owners who obstruct the dominant owner or deny his right are necessary parties. Applying that principle contention that brother of appellant is a necessary party and in his absence the suit is not maintainable cannot be accepted and in the light of the settled position of law it raised no substantial question of law. ## **R.S.A. No.109 of 2010** ## -: 7 :- 4. Next argument is that courts below ought to have accepted Ext.C1 series as such since under Order XXVI Rule 10(2) of the Code Ext.C1 series is not only part of the record but is also evidence. Learned counsel has invited my attention to Ext.C1 where it is stated that a few trees on the side of disputed pathway was cut and red earth was spread on the way recently which had oldness of a few days. Learned counsel contends that, in view of that courts below ought to have found in favour of plea of appellant that the way was recently formed. Evidence regarding existence of way and right of easement comes from P.W.1, Power of Attorney of the respondent and P.W.2, a neighbour. They stated that respondent and her predecessors-in-interest were using the pathway for more than the statutory period. On the other side there is evidence of appellant as D.W.1. Courts below observed that even evidence of D.W.1 would show that there was in existence a pathway before respondent purchased item No.1 in the year 1992. According to D.W.1 herself and predecessors were gaining access to their property from the public road on eastern side through the disputed way. Courts below observed that evidence of D.W.1 probabilised version of respondent regarding ## **R.S.A. No.109 of 2010** ## -: 8 :- existence of the way and its user for the statutory period. Courts below took note of the fact that as per report of the Commissioner, there was no other means of access for the respondent to reach plaint item No.1. No doubt existence or otherwise of an alternative pathway is irrelevant in deciding the issue of easement by prescription. But the fact that there is no other way for respondent is certainly a circumstance in favour of the respondent. P.W2 has given evidence that before purchase of item No.1 by the respondent he has done work in the pathway. Necessarily that indicated the existence and user of pathway even prior to Ext.A2. Mere fact that Commissioner has reported that a few trees on the side were cut and red earth was spread on the pathway recently are not sufficient to hold that pathway was recently formed as claimed by D.W.1. I must bear in mind that Advocate Commissioner has not reported that the pathway was recently formed. He only stated that red earth was spread on the disputed way recently. P.W.1 has an explanation for that, it was for making the way suitable for walking. 5. Yet another argument is that P.W.1 was not competent to give evidence even if it is assumed that she was authorised as per Ext.A1. True P.W.1 as Power of Attorney cannot give evidence in ## **R.S.A. No.109 of 2010** ## -: 9 :- substitution of her principal. But Power of Attorney can give evidence about matters within her knowledge. She has given evidence regarding the alleged user and that was found acceptable by the courts below. Findings of courts below regarding existence of the pathway and its user by the respondent and predecessors for the statutory period are based on evidence on record and on a proper appreciation of it which does not present any substantial question of law. On going through the judgments under challenge and hearing learned counsel I do not find any substantial question of law involved in this Second Appeal requiring its admission. Second Appeal is dismissed in limine. **THOMAS P.JOSEPH, JUDGE.** vsv