IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
THURSDAY, THE 28TH DAY OF JULY 2016/6TH SRAVANA, 1938
RSA.No. 347 of 2016 (G)
------------------------
AGAINST THE JUDGMENT AND DECREE IN AS NO. 6/2013 of PRINCIPAL SUB COURT,ERNAKULAM DATED 31-10-2015
AGAINST THE JUDGMENT AND DECREE IN OS NO. 222/2005 of III ADDITIONAL MUNSIFF AND RENT CONTROL COURT,ERNAKULAM DATED 31-12-2012
APPELLANT/APPELLANT/PLAINTIFF:
------------
RAVIKUMAR S/O.LATE AMMUKUTTY AMMA, AGED 77, ADVOCATE, AMBILI NIVAS, EROOR P.O: 682 306, ERNAKULAM.
BY ADV. SRI.K.G.BALASUBRAMANIAN
RESPONDENT/RESPONDENT/DEFENDANT:
--------------
NARAYANIKUTTY AMMA
D/O.LATE MADHAVI AMMA, AGED 77, MULLAPPILLIL HOUSE, EROOR.P.O.:682 306, ERNAKULAM.
BY ADV. SRI..PAUL K.VARGHESE (CAVEATOR)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **A.HARIPRASAD, J.**
## **-------------------------------------R.S.A. No.347 of 2016 -------------------------------------Dated this the 28[th] day of July, 2016**
## **JUDGMENT**
The unsuccessful plaintiff in the courts below is the appellant. Suit is one for declaration that the plaintiff has a right of easement by necessity and prescription over plaint B schedule property, belonging to the defendant, for access to plaint A schedule property, that the defendant and her men be restrained from obstructing plaint B schedule pathway or otherwise interfering with the plaintiff's right to use that way, that the defendant be restrained from trespassing into plaint A schedule property or interfering with the plaintiff's possession and enjoyment of the property and for such other reliefs. The trial court examined three witnesses on the side of the plaintiff and three on the side of the defendants. Exts.A1 to A7 are the documents marked by the plaintiff and Exts.B1 to B8 are the defendant's documents. Exts.C1 to C3 are the Commissioner's plans and reports.
2. On the basis of the evidence adduced, the trial court found that the plaintiff failed to prove his right to get a declaration and injunction. Hence the suit was dismissed.
3. Aggrieved by the finding, the plaintiff approached the lower appellate court (Court of Subordinate Judge, Ernakulam) with A.S.No.6 of
2
RSA No.347/2016
2013. The lower appellate court elaborately considered the facts and agreed with the trial court that the plaintiff had not established his right to get the reliefs prayed for.
4. Short facts necessary for the disposal of the case are as follows: Plaintiff and defendant belong to a common tarwad by name Mullappillil. There was a partition amongst the members of the tarwad in the year 1115 ME (1940). Various items were set apart to different thavazhies. Plaintiff was a member in H thavazhy. Defendant belonged to G thavazhy along with other members. Plaint A schedule property is a portion of the property in survey No.69/2, set apart to E and H thavazhies in Ext.A1 partition deed. Subsequently there was another partition in the plaintiff's thavazhy in the year 1970 as per Ext.A3. Plaint A schedule property is mostly a low lying “karinilam” abutting a river on the eastern side and puramboke canals on the south and west. Ten years before the suit, the only public road available in the locality was Eroor-Tripunithura main road running north to south. It lies a furlong west to the plaint A schedule property. Properties lying in survey Nos.70/1 and 70/2 of Nadama Village are the adjoining western lands of plaint A schedule property. That was set apart to defendant's mother's thavazhy in G schedule to Ext.A1. These properties were originally lying as a single block in the possession of the tarawad. Eversince Ext.A1 partition deed, different
3
RSA No.347/2016
thavazhies came into exclusive possession and enjoyment of their respective shares with a right of way by necessity through the portions of the said property allotted to different thavazhies. Plaintiff claimed a right of way for having access to plaint A schedule property through plaint B schedule pathway which is a part of the defendant's property. The right claimed in paragraph 2 of the plaint is that the plaintiff and his predecessors have been using the plaint B schedule pathway for about hundred years uninterruptedly, openly, publically, without any hindrance and as of right for ingress and egress to the plaint A schedule property. It is the specific contention of the plaintiff that he has acquired a right of way by necessity, by grant and prescriptive easement right through the plaint B schedule property. According to him, the defendant has no right to interfere with the plaintiff's user of the pathway. When there was an attempt to block the pathway, the suit was filed.
5. Contesting respondent (defendant) disputed the averments in the plaint. Execution of Ext.A1 partition deed is admitted. It is the case of the defendant that the plaintiff did not produce material documents to show that he has purchased property from the thavazhy of Narayana Menon, to whom C schedule item was allotted in Ext.A1. Plaintiff's claim of exclusive right and possession in respect of 3.70 acres in survey No.69/2 is denied by the defendant. Contention relating to the ownership of various
4
RSA No.347/2016
properties is also denied in the written statement, which is not a matter to be considered in this second appeal. It is the specific contention of the defendant that the plaintiff's predecessors or the plaintiff had never used plaint B schedule property as a pathway. According to the defendant, plaint
B schedule pathway is a “chira” in her property and it is used by the defendant for access to her “karinilam” in survey No.70/2. Plaintiff has no right to use the same, nor has he used it openly, continuously and without any interruption as alleged. Plaintiff is not entitled to get any declaration or injunction as prayed for.
6. Trial court framed following issues:
- _“1. Whether the plaintiff has acquired a right of_
- _easement by necessity over the plaint B schedule property?_
_2. Whether plaintiff acquired right of easement_
_by prescription over the B schedule property?_
_3. Is the prayer for declaration allowable?_
_4. Whether the plaintiff is entitled for a_
_prohibitory injunction in respect of the A schedule property?_
_5. Whether the plaintiff is entitled for an_
_injunction in respect of the B schedule property?_
_6. Relief and costs.”_
7. It is clear from the trial court's judgment that at the time of evidence the plaintiff abandoned his claim of right of easement by
5
RSA No.347/2016
necessity over plaint B schedule property. He confined his plea in respect of an easement by prescription over plaint B schedule property. Trial court dealt with this issue in paragraphs 8 and 9 of its judgment. It has noticed that the contention of the appellant that his predecessors and himself were using the disputed pathway for 100 years is of no significance because even according to the averments in the plaint, until Ext.A1 was executed, the entire property was lying in ownership of the common tarward. On evidence, it was found by the trial court that the plaintiff has not established the existence of such a way through the properties of his brothers and sisters and he was using plaint B schedule property as of right after partition, thereby he acquired an easement by prescription. On this factual finding trial court dismissed the suit.
8. In the appeal before the lower appellate court, following points were raised:
_“1. Whether the appellant is entitled to a decree for declaration declaring that the appellant has acquired easement right by grant/prescription over the B schedule pathway?_
_2. Whether the appellant is entitled to a decree for permanent prohibitory injunction with respect to the B schedule pathway?_
_3. Whether the impugned judgment of the lower court dated 31.12.2012 is liable to be interfered with in appeal on the ground that it is_
6
RSA No.347/2016
_legally and factually in correct?_
## _4. Reliefs and costs”_
9. The lower appellate court noticed the fact that in Exts.A1 to A3, which are the partition deeds executed between the members of the tarward, no express mention in respect of plaint B schedule pathway is made. In other words, plaint B schedule pathway was not set apart in common to the parties as a way. Plaintiff, as mentioned above, has confined his claim to prescriptive easement. At the first appellate stage, it was claimed to be a right obtained by a lost grant. Lower appellate court noticed that there is no specific pleading in the plaint to infer any lost grant in favour of the plaintiff. The principles relating to the concept “lost grant” have been discussed by the court below and found that the pleadings and evidence do not support such a case. Therefore, the lower appellate court confirmed the findings of the trial court.
10. Heard the learned counsel for the appellant and the respondent.
11. Learned counsel for the appellant contended that in the plaint there are enough pleadings to infer the right of the plaintiff based on lost grant. Conceptually, lost grant proceeds on the theory that there was a grant which was made long before and proof of it has become impossible to know because of obscurity. Even going by the plaintiff's case, the right to enjoy the easement has been originated only after Ext.A1 partition deed
7
RSA No.347/2016
in the year 1940. There is no question of inferring any lost grant if the starting point of right is definite or certain. If only the hostile right asserted by the plaintiff by way of a prescriptive easement right is un-known for antiquity, the question of lost grant arises for consideration.
12. Learned counsel for the appellant placed reliance on a decision of this Court in **Varghese v. Jose Mathew (2014 (3) KLT 1065)** , wherein the concept of lost grant has been considered by a learned Single Judge. Learned counsel relying on the observations in paragraph 22 of the said judgment contended that merely because the plaintiff is unable to satisfy the ingredients of Section 15 of the Easements Act, 1882, he cannot be declined a relief in case the plaintiff is able to prove the existence of a pathway and it is used as a matter of right for a long period. Even though this proposition is indubitable, in this case the facts revealed that the claim of right of way started only after Ext.A1. Therefore, it cannot be termed as a lost grant.
13. Learned counsel for the appellant placed reliance on another decision of this Court in **Prasannakumari v. krishnakumari and another (2011 (2) KHC 113)** . The principle in the decision would show that the right of prescriptive easement claimed over a land, which was once upon a time a co-ownership property, can the accepted if the ingredients of Section 15 of the Easements Act, 1882 are established after the severance of right of
8
RSA No.347/2016
co-owners. These propositions are also beyond any challenge. But, lack of consistency in the pleadings and evidence of the appellant cuts at the root of his case.
14. Another decision relied on by the appellant is **Sree Swayam Prakash Ashramam v. N.Gopala Pillai ((2010) 2 SCC 689)** . The facts in that decision have no similarity with the facts on hand. That was a case wherein prescriptive easement alone was claimed and that was proved. Therefore, on the basis of these decisions it cannot be contended in this case, especially in the pleaded facts and proved circumstances, that the plaintiff/appellant has established any lost grant.
Courts below, after a detailed consideration of the evidence, have come to a conclusion that the plaintiff failed to establish any right to claim declaration and consequential reliefs. In this appeal, it is impossible for this Court to re-appreciate the entire questions of fact. I find no substantial question of law arising in this appeal. Hence the appeal is dismissed.
All pending interlocutory applications will stand dismissed.
## **A. HARIPRASAD, JUDGE.**
**cks**
