R.S.A. No. 1278 of 2011

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 3RD DAY OF OCTOBER 2012/11TH ASWINA 1934`** ## **RSA.NO. 1278 OF 2011 ( )** **--------------------------------------AS.125/2008 OF FIRST ADDITIONAL DISTRICT COURT, MAVELIKKARA OS.198/2003 OF MUNSIFF'S COURT, KAYAMKULAM** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** **--------------------------------------------------------------** **1. RAJAN JOHN @ RAJU,AGED 58 YEARS, MULLASSERIL HOUSE,PUTHUPPALLY,PUTHUPPALLY VILLAGE.** **2. EAPEN JOHN @ SAJUMON,AGED 52 YEARS,** - **MULLASSERIL HOUSE,PUTHUPPALLY,PUTHUPPALLY VILLAGE.** **BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.NAVA VARGHESE** ## **RESPONDENT(S)/PLAINTIFFS COUNTER-CLAIM DEFENDANTS:** **-------------------------------------------------------------------------------------------** **1. RETNAMANI,AGED 48 YEARS,W/O.GANESAN, KUDASSERIL THEKKETHIL,PUTHUPPALLY NORTH MURI PUTHUPPALLY VILLAGE-690527.** ## **2. GANESAN,AGED 53 YEARS,S/O.BHARATHI, KUDASSERIL THEKKETHIL,PUTHUPPALLY NORTH MURI PUTHUPPALLY VILLAGE-690527.** ## **3. JANAKI AMMA SAVITHRIAMMA,KUDASSERIL PADEETTATHIL VEEDU,PUTHUPPALLY NORTH MURI PUTHUPPALLY VILLAGE-690527.** **BY ADVOCATE SHIR P.S. SREEDHARAN PILLAI (CAVEATOR) C.G. PREETHA R1** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.1278 of 2011 ==================================== Dated this the 03[rd] day of October, 2012** ## **J U D G M E N T** Admit. 2. The following substantial questions of law are framed for a decision: (i) Whether the courts below are justified in granting a decree for injunction in favour of the appellant who has approached the court suppressing the existence of a pathway, which was found to be in existence by the courts below? (ii) Whether the courts below erred in granting a decree holding that the pathway described in D schedule was not in existence, overlooking evidence to the contrary in Exts.C1 to C3? (iii) Whether the courts below are justified in refusing declaration of right of way by prescription only on the ground of absence of the pathway described in the schedule as such, in spite of finding that there exists a pathway for ingress and egress for the defendants to the eastern road? ## **R.S.A. No.1278 of 2011** -: 2 :- (iii) Whether the courts below acted in gross misappreciation of evidence in passing the impugned judgment and decree? 3. Respondents 1 and 2 appear through counsel. The 3[rd] respondent remained absent in the first appellate court. I am told that though she had filed written statement in answer to the counter claim she did not contest the suit or counter claim in the trial court as well. Hence notice to the 3[rd] respondent in this appeal is not necessary. 4. The Second Appeal arises from the judgment and decree of the First Additional District Court, Mavelikkara in A.S. No.125 of 2008 confirming the judgment and decree of the Munsiff's Court, Kayamkulam in O.S. No.198 of 2003. 5. Respondents 1 and 2, claiming title and possession of 7 cents in Sy. No.1370 referred to in the plaint schedule as per Exts.A1 and A2, prayed for a decree for prohibitory injunction against the appellants-defendants 1 and 2. They claimed that the appellants have property towards north-west of the suit property and are attempting to trespass into the said property. They specifically claimed that there is no right of access for the ## **R.S.A. No.1278 of 2011** ## -: 3 :- appellants through the suit property. 6. The appellants resisted the suit and raised a counter claim. In the counter claim, the A schedule is the property belonging to the appellants. The C schedule is the property belonging to respondents 1 and 2 (referred to in the plaint schedule). The B schedule in the counter claim is the property belonging to the 3[rd] respondent (impleaded in the counter claim as the legal representative of Kochu Narayanan to whom the property on the west of the suit property [counter claim C schedule] belonged. The case of the appellants is that the public road goes north-south along the eastern side of the suit property and immediately on the west of the public road, there is some puramboke land. Through the said puramboke land and the property belonging to respondents 1 and 2 along its southern boundary, there is a pathway leading to the property of the appellants towards north-west of the suit property. That pathway, according to the appellants has a length of 20 metres and width of 3.5 feet through the southern portion of the property of respondents 1 and 2. That pathway further goes to the property of the 3[rd] respondent (the 3[rd] defendant in the counter claim). At the middle of that property, it branches towards ## **R.S.A. No.1278 of 2011** ## -: 4 :- south-western and north-western sides. The branch towards north-west leads to the property of the appellants on the further north-west. The said way is described as the D schedule in the counter claim. Over that way, the appellants claimed a right of easement by prescription. They also contended that it is suppressing the existence of the way through their property that respondents 1 and 2 filed the suit. The trail court in paragraph 12 of its judgment found against the existence of a pathway and held that hence it is unnecessary to probe whether the appellants have acquired right of easement by prescription over the said pathway. Consequently the counter claim was dismissed and the suit was decreed. 7. Appellants challenged that judgment and decree in the suit and counter claim in A.S. No.125 of 2008. The first appellate court in paragraph 7(2) of its judgment observed that existence of a pathway as reported by the Advocate Commissioner in Ext.C1 is only to be accepted, but the D schedule way shown in Ext.C3(a) is nothing but an after thought and that D.W.2, the Advocate Commissioner directed the Surveyor to prepare a plan according to his whims and fancies. The first appellate court concluded that existence of the D schedule pathway (in the ## **R.S.A. No.1278 of 2011** ## -: 5 :- counter claim) is not proved by the appellants. Consequently, finding of the trial court that appellants are not entitled to the right of easement by prescription over the counter claim D schedule property was upheld. The decree in the suit and dismissal of the counter claim were confirmed. Hence the Second Appeal on the substantial questions of law framed above. 8. The learned counsel for the appellants has contended that respondents 1 and 2 instituted the suit claiming that there is no way through any portion of the suit property which has been found against by the first appellate court. If that be so, respondents 1 and 2 are not entitled to get the discretionary relief of injunction. Reliance is placed on the decision in **Ramjas Foundation v. Union of India** ([2010] 14 SCC 38). 9. It is further contended that Exts.C1 to C3(a) would show that so far as the suit property (counter claim C schedule) is concerned, there is a pathway along the southern side of the said property and in that view of the matter, the first appellate court was not right in not going into the question of easement by prescription over the said way. The learned counsel submitted that the third respondent (the 3[rd] defendant in the counter claim) has not resisted the claim of the appellants for access ## **R.S.A. No.1278 of 2011** ## -: 6 :- through her property situated on the west of the suit property (counter claim C schedule). It is also pointed out by learned counsel that though subsequent to the suit, the 3[rd] respondent has assigned one cent towards southern side of her property as per Ext.A4, sale deed dated 10.05.2006 to the appellants to facilitate their providing access through the southern side of property of the 3[rd] respondent which also indicates that the appellants were enjoying a right of access through the southern side of the suit property (counter claim C schedule property). Learned counsel submits that Exts.C1 to C3(a) were not properly considered by the courts below. It is pointed out by the learned counsel that the change the Advocate Commissioner - D.W.2 has noticed from Exts.C2 and C2(a) at the time of Exts.C3 and C3(a) is only the formation of pathway through the property of the 3[rd] respondent pursuant to Ext.A4, assignment deed dated 10.05.2006 which does not affect the claim of appellants for right of access through the southern side of the suit property (counter claim C schedule). The learned counsel submitted that the evidence of D.Ws.1 and 3 is sufficient to prove that the appellants have acquired a right of easement by prescription particularly as it is not shown that there is any other alternative ## **R.S.A. No.1278 of 2011** ## -: 7 :- access to their property. The learned counsel argued that judgment and decree of the courts below are to be reversed, the suit is liable to be dismissed and the appellants are entitled to the reliefs as prayed in the counter claim. 10. The learned counsel for respondents 1 and 2 supported the judgment and decree of the courts below. It is pointed out that no pathway was ascertained and located by the Advocate Commissioner in Exts.C1 and C1(a) even. What is reported by the Advocate Commissioner in Exts.C1 and C1(a) is that the disputed way at the south-eastern portion of the suit property as having width of 70 cms is only a gap provided by respondents 1 and 2 for access to their property from the public road on the east. It is pointed out that none of the reports submitted by the Advocate Commissioners would show the existence of a pathway as claimed by the appellants through the southern portion of the suit property. It is further pointed out that it is the avowed case of the appellants that in between the public road on the east and the property of respondents 1 and 2 on the west, a portion is puramboke land. Exhibits C3 and C3(a) and the report of D.Ws.2 and 4 would show that there is no such puramboke land. According to the learned counsel, it is on the ## **R.S.A. No.1278 of 2011** ## -: 8 :- premise that there is such a puramboke land that the appellants have claimed pathway having more than four feet originating from the south-eastern corner of the suit property. Learned counsel submits that the evidence is not sufficient to warrant a conclusion that the appellants have established a right of easement by prescription. It is also submitted that the appellants have alternative access to their property. 11. Since the claim raised by the appellants over the disputed pathway is easement by prescription, the question whether there is any alternative access to the appellants to reach their property is not very much germane for a decision. 12. The trial court, in paragraph 12 of its judgment concluded that existence of a pathway as claimed by the appellants is not proved and hence it is not necessary to probe into the claim of easement by way of prescription made by the appellants. The first appellate court was inclined to think that there is a pathway along the southern side of the suit property (counter claim C schedule property) though not in the way claimed by the appellants as having width of 3.5 feet. The first appellate court observed that on a perusal of Exts.C2 and C2(a) along with Exts.C1, report and C1(a), sketch the existence of a ## **R.S.A. No.1278 of 2011** ## -: 9 :- foot way through the suit property and the plaint B schedule of the counter claim belonging to the 3[rd] respondent cannot be ruled out though the existence of a way as described in the counter claim D schedule is not established. It is clear from the finding of the first appellate court that it was inclined to accept the case of the appellants that there is a pathway originating from the public road on the east and leading to their property through the southern side of the suit property (counter claim C schedule property) though the first appellate court was not inclined to accept the width of the pathway as claimed by the appellants. 13. It is not very much in dispute that at the time respondents 1 and 2 filed the suit on 22.05.2003 and particularly alleging that there is no pathway through the suit property, they did not take out a commission to report on the situation of the suit property as on date of suit. Instead, the appellants on 13.06.2003 applied for the appointment of a Commissioner claiming that there is a pathway along the southern side of the suit property (counter claim C schedule). That application was allowed and the Advocate Commissioner inspected the suit property and the adjoining properties on 13.06.2003. Exhibits C1 and C1(a) are the report and sketch the Advocate ## **R.S.A. No.1278 of 2011** ## -: 10 :- Commissioner has prepared (that Advocate Commissioner was not examined in the trial court). In Ext.C1, the Advocate Commissioner has reported that he could notice a row of bricks kept towards the southern side of the suit property (counter claim C schedule property) and north of the barbed wire fencing forming the southern boundary of the suit property. The Commissioner also found cudjan leaves heaped at that portion of the suit property. Adjoining the barbed wire fencing on the southern side, the Advocate Commissioner found some trees having the oldness of 5-20 years. In between the row of bricks towards south-eastern portion of the suit property and the barbed wire fencing on the further south, the Commissioner found the width of the way as 70 cms where it touched the public road on the east. About 18 ½ metres west from the eastern portion of the barbed wire fencing, the width was 103 cms (obviously for the way). Towards the west of the suit property (counter claim C schedule property) is the property of Kochu Narayanan (husband of the 3[rd] respondent). Along the southern side of that property the Advocate Commissioner found a foot path. Almost towards the middle of property of husband of the 3[rd] respondent, that pathway branched towards north-west and south-west. The ## **R.S.A. No.1278 of 2011** ## -: 11 :- pathway towards the north-west reached up to the property of the appellants. The said pathway, the Advocate Commissioner has shown in Ext.C1(a), rough sketch. 14. D.W.2, another Commissioner inspected the properties on 03.04.2006 and submitted Exts.C2 and C2(a). D.W2 reported in Ext.C2 that he could not find any alternative way as suggested by respondents 1 and 2 to the property of the appellants at the time of his inspection. D.W.2 reported that the public road goes along the east of the suit property (counter claim C schedule property) and that along the southern side of the suit property and starting from the public road (the pathway) could be seen (the expression 'pathway' is missing in that paragraph of Ext.C2. But the further statement in Ext.C2 would show that the reference is to the disputed way). The Advocate Commissioner further states that the said pathway leads towards the middle of property of Kochu Narayanan (husband of the 3[rd] respondent) and from there, it branched towards the south-west and north-west as already stated above. Exhibits C2 and C2(a) were remitted to the same Commissioner who conducted further inspection of the properties on 06.01.2008. Exhibit C3(a) is the plan prepared by D.W.4, the Surveyor. In Ext.C3(a) the plot shown as 'C' is the suit property. ## **R.S.A. No.1278 of 2011** ## -: 12 :- Plots shown with sub division numbers 2 and 3 belonged to Kochu Narayanan, husband of the 3[rd] respondent. Plot A in Ext.C3 (a) belonged to the appellants. In Ext.C3(a), D.W.2 states that the portion marked as DEBGHIJK is the way claimed by the appellants as counter claim D schedule property passing through the suit property (counter claim C schedule property) and through the property of husband of the 3[rd] respondent. The portion marked as JKLMNOP is the portion of way passing through the suit property along its southern boundary. 15. It is relevant to note that it is after D.W.2 inspected the property and submitted Ext.C2(a), report and before submission of Exts.C3 and C3(a), report that the appellants acquired one cent from the 3[rd] respondent as per Ext.A4. That document was got executed, according to the appellants, to make a permanent way along the southern side of property of the 3[rd] respondent. 16. Learned counsel for respondents 1 and 2 contended that in the written statement filed by the 3[rd] respondent, there is no admission that appellants have any right of access through her property but what she pleaded is only that along the foot path having width of 1½ feet, she had permitted the appellants to ## **R.S.A. No.1278 of 2011** ## -: 13 :- walk through. That would not amount to any right of easement by way of prescription. It is further argued that if actually the appellants had any right of access through the property of the 3[rd] respondent, that right could have been enforced and it was not necessary to acquire any property of the 3[rd] respondent as per Ext.A4. 17. In this Second Appeal I do not intend to go into the claim made by the appellants that they have established a right of easement by prescription. The reason is that neither the trial nor the first appellate court has adverted to that question for the reason that the appellants have not proved existence of a way as described in the counter claim D schedule property and passing through the southern side of the suit property. 18. So far as the existence of a pathway through the suit property is concerned, assuming that it is not exactly in the manner claimed in the counter claim D schedule, it is seen from the evidence that even as on the date the Advocate Commissioner first inspected the suit property on 13.06.2003 (institution of the suit was on 22.05.2003), there was a way in existence along the southern side of the suit property and in continuation of that way, the Advocate Commissioner found a ## **R.S.A. No.1278 of 2011** ## -: 14 :- pathway through the property of husband of the 3[rd] respondent. Though the trial court was not prepared to accept that, the first appellate court having regard to Exts.C1 to C3(a) accepted that fact though added that existence of the way as claimed in the counter claim D schedule is not established. First Appellate court observed that D.W.4 has simply shown the disputed pathway through the suit property in Ext.C3(a) as directed by the Advocate Commissioner (D.W.2). I must notice that so far as the change brought about to the disputed way in the property of the 3[rd] respondent is concerned, that change is attributable to what happened after Ext.A4, assignment deed dated 10.05.2006. That change need not affect the claim of appellants for the way through the southern side of the suit property. 19. Having gone through the evidence on record I am inclined to hold that there is a pathway in existence along the southern side of the suit property. The question as to what exactly is the width of the way, whether it is 70 cms at the east, 103 cms at the portion 18½ metres west from the eastern extremity and what is the width of the way in continuation upto the property of the 3[rd] respondent are matters which the trial court has to decide on the basis of the evidence on record and if ## **R.S.A. No.1278 of 2011** ## -: 15 :- necessary after giving opportunity to both parties adduce further evidence. 20. In that view of the matter I am inclined to think that the claim for easement by prescription raised by the appellants requires decision based on the finding the trial court would make as regards width of the way through the southern portion of the suit property (counter claim C schedule property). 21. Learned counsel for the appellants have a contention that since respondents 1 and 2 came to the court with a plea that there is no way through the suit property and the evidence reveals that there is such a way, respondents 1 and 2 are to be non-suited. Learned counsel for respondents 1 and 2 argued that the relief of injunction should be granted in accordance with the rule of law and the rule of law is that nobody shall be permitted to take the law into his hand. I leave that matter to the decision of the trial court. 22. Having regard to the orders the trial and first appellate courts have made as regards use of the disputed way, appellants are permitted for the time being to make use of the space at a width of 3.5 feet along the southern side of property of respondents 1 and 2, originating from the public road on the ## **R.S.A. No.1278 of 2011** ## -: 16 :- east and leading to the property of the 3[rd] respondent on the west, until further orders are passed by the trial court in this regard. It is made clear that the width of the way referred to in this paragraph shall not influence the trial court in deciding as to what exactly is the width of the way. 23. The substantial questions of law framed are answered as above. 24. The Second Appeal is allowed by way of remand as under: (i) It is found that there is a way along the southern side of the suit property (counter claim C schedule property), originating from the public road on the east and leading to the property of the 3[rd] respondent, the width of which shall be decided by the trail court. (ii) Judgment and decree of learned First Additional District Judge, Mavelikkara in A.S. No.125 of 2008 and of the learned Munsiff, Kayamkulam in O.S. No.198 of 2003 dismissing the counter claim and granting decree in the suit are set aside. (iii) O.S. No.198 of 2003 is remanded to the Munsiff's Court, Kayamkulam for fresh decision in the light of the finding ## **R.S.A. No.1278 of 2011** ## -: 17 :- made above after giving opportunity to both sides to adduce further evidence if any regarding width of the way along the southern side of the suit property and as regards the claim of easement by prescription raised by the appellants. (iv) Parties shall appear in the Munsiff's Court, Kayamkulam on 03.11.2012. Registry shall transmit the records of the case to the trial court forthwith. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv