R.S.A. No. 985 of 2010

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 24[TH] DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA,1943** ## **RSA NO. 985 OF 2010** **AGAINST THE JUDGMENT AND DECREE DATED 24.03.2010 IN AS 79/2005 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (ADHOC), KOLLAM AGAINST THE JUDGMENT AND DECREE DATED 31.03.2005 IN OS 326/1998 OF ADDITIONAL MUNSIFF COURT, KOLLAM** ## **APPELLANTS/LEGAL HEIRS OF DECEASED PLAINTIFF:** 1 SUSANNAMMA ABRAHAM,W/O LATE T.M.MATHEW, THAZHATHIL VEEDU,OLAYIL CHERI,KOLLAM. 2 JUJU MATHEW THAZHATHILTHAZHATHIL VEEDU OLAYIL CHERI,KOLLAM. 3 ELIZABETH MANJU GEORGETHAZHATHIL VEEDU OLAYIL CHERI,KOLLAM. BY ADVS. SRI.GEORGE CHERIAN (THIRUVALLA) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI ## **RESPONDENT/DEFENDANT/RESPONDENT:** JAYADEVAN OLAYIL CHERI,KOLLAM PIN 691 001. BY ADVS. SRI.K.S.MANU PUNUKKONNOOR SRI.P.SREEKUMAR **THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 24.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO.985 OF 2010** **2** ## **K.BABU, J.** ------------------------------------------- ## R.S.A. No.985 of 2010 --------------------------------------------- Dated this the 24[th] day of November, 2021 ## **JUDGMENT** The appellants are the legal representatives of the plaintiff. The appellants call in question the legality of the judgment rendered by the Additional District & Sessions Court (Adhoc)I, Kollam in A.S.No.79/2005. Originally, the suit was instituted for a permanent prohibitory injunction against the defendant. 2. Material facts, in a nutshell, are as follows:- The plaintiff pleaded that the plaint 'A' schedule property belongs to him. He acquired title and possession over the property by virtue of sale deed No.2749/1974. A public road runs in the north-south direction on the western side of plaint 'A' schedule property. Plaint 'B' schedule property is a pathway, having a width of 18 links, that starts from the western public road and reaches 'A' schedule **RSA NO.985 OF 2010** **3** property. This pathway is specifically mentioned in the sale deed in respect of plaint 'A' schedule property. The plaintiff has been using 'B' schedule pathway without any interruption. Defendant has property on the southern side of plaint 'A' and 'B' schedule properties. The defendant purchased the property from one T.G.Krishnan in 1996. 'A' schedule property and the property of the defendant originally belonged to late Annamma Eppan. The properties were sold in a public auction for realizing the debt due to the Pala Central Bank. 3. According to the plaintiff, at the time of purchase of plaint 'A' schedule property, there was a compound wall constructed by the prior owner on the southern side of the 'A' and 'B' schedule properties. This compound wall on the southern side of the 'A' schedule property is specifically scheduled in the plaint as 'C' schedule property, item Nos.1 and 2. The portion of the compound wall adjacent to the 'A' schedule property is described as 'C1' schedule, and the portion of the compound wall adjacent to 'B' schedule property is described as 'C2' schedule property. There is barbed wire fencing on the compound wall. According to the **RSA NO.985 OF 2010** **4** plaintiff, there is no opening to the property of the defendant from 'A' and 'B' schedule properties. 'C' schedule compound wall was constructed by the plaintiff and late T.G.Krishnan, the predecessor in interest of the defendant. The defendant never used the 'B' schedule pathway. Therefore, even if the defendant had acquired any right over it, he lost the right due to continuous non-user. 4. The case of the defendant is that the entire southern property having an extent of 38.312 cents and excess area of 2 cents were sold to late T.G.Krishnan in the auction conducted by the Pala Central Bank. The excess area of 2 cents was earmarked as a pathway as per records. According to the defendant, the 'B' schedule pathway was set apart in common, and it had only a width of 8 links, at the time of purchase of the property by his predecessor and 'B' schedule pathway was later widened, taking a portion of the property owned by the predecessor of the defendant. Defendant has every right to use 'B' schedule way and to put up an opening to use the same. The plaintiff has no absolute right over the plaint 'C1' and 'C2' compound wall. Defendant denied the plea of the plaintiff that both the parties have **RSA NO.985 OF 2010** **5** equal right over the 'C' schedule compound wall. 5. During the trial, PW1 was examined on the side of the plaintiff and Exts. A1 and A2 series were marked. On the side of the defendant, DW1 was examined and Exts.B1 to B9 were marked. Exts.C1 and C2 were marked as Court Exhibits. 6. The Trial Court dismissed the suit holding that the plaintiff is not entitled to the equitable remedy of injunction. However, the Trial Court held that the parties are co-owners in respect of the compound wall on either side of the pathway. 7. The plaintiff challenged the judgment and decree of the Trial Court before the First Appellate Court in A.S.No.79 of 2005. 8. The First Appellate Court confirmed the finding of the Trial Court that the plaintiff is not entitled to the prohibitory injunction as prayed for. The First Appellate Court reversed the finding of the Trial Court that the parties are coowners in respect of the 'C' schedule compound wall and held that the claim of the plaintiff with respect to 'C' schedule **RSA NO.985 OF 2010** **6** compound wall is not maintainable. 9. After hearing both sides, this Court has reformulated the substantial questions of law as follows:- (i) Whether the Courts below went wrong in holding that the right of the defendant over 'B' schedule pathway is not lost by way of non user. (ii) Has not the First Appellate Court gone wrong in reversing the finding on 'C' schedule compound wall without an appeal on that point? 10. Heard Sri.George Cherian (Thiruvalla), the learned counsel appearing for the appellants and Sri.K.S.Manu, the learned counsel appearing for the respondent. 11. The plaintiff instituted the original suit for a permanent prohibitory injunction to restrain the defendant from using 'B' schedule pathway, from causing damage to the 'C' schedule compound wall and from making any opening in 'C' schedule item No.2 for the purpose of using 'B' schedule pathway. 12. The properties owned by the parties were part of **RSA NO.985 OF 2010** **7** a larger extent of 64 cents originally belonged to Annamma Eppan. This property was sold in a public auction. The plaintiff acquired title over 'A' schedule property, having an extent of 11 cents. The predecessor in interest of the defendant acquired the property on the southern side of 'A' schedule property. There is a compound wall on the southern side of the 'A' and 'B' schedule properties. 'C1' schedule portion of the compound wall separates 'A' schedule property from the property of defendant. 'C2' schedule portion of the compound wall separates 'B' schedule pathway and the property of the defendant. The dispute centers around the right of the plaintiff and defendant over 'B' schedule pathway and 'C2' compound wall. 13. The Trial Court as well as the First Appellate Court held that 'B' schedule pathway is a common way set apart by the predecessor in interest of the parties to have access to their properties and that they have no absolute right over the pathway. The challenge of the plaintiff is that due to the non-user of 'B' schedule pathway by the defendant for a long period, he lost the right over that pathway if any he has acquired. **RSA NO.985 OF 2010** **8** 14. Going by the pleadings and evidence, indisputably, the 'B' schedule pathway was set apart as a common way by the predecessors in interest of the plaintiff and defendant to be used as a way. It is evident that the parties acquired right over 'B' pathway as a grant. If a person acquires a grant by express or by necessary implication, it will usually be on payment and there is no reason why such an easement which is paid for should be extinguished for the reason that the acquirer did not use it for a time period. In _**Velayudhan v. Padmanabhan [1988 (2) KLT 417],**_ this Court had occasion to consider such a question. In Paragraph 4, this Court held thus: _“4. The question whether an easement is one acquired by grant or as of necessity is not to be decided on the absolute necessity of it. It is the nature of the acquisition that counts. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties and it may have its own consideration in some form or other. In the matter of grant the parties are governed by the terms of the grant and not anything else. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under S.13 of the Easements Act even though it may also be an absolute necessity for the person in whose favour the grant is made. On principle it is clear that if a person acquires a grant expressly or by necessary implication, it will usually be on payment and there is no reason why such an easement which is paid for should be extinguished for the reason that the acquirer came by another access. Limit of the easement_ **RSA NO.985 OF 2010** **9** _acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant that it was to continue only until such time as the necessity was absolute and there is no evidence to support such an agreement it must be held that the grant was not limited till the necessity for it existed. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognised and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of S.13 and it is not extinguished by the statutory provision under S.41 of the Easements Act which is applicable only to easements of necessity arising under S.13 (See Hirajee and another v. Suraj Bali AIR. 1929 Oudh 351- and JR. Sivanandan and others v. Rajammal and another-1915 (1) MLJ. 251).”_ 15. The Apex Court in _**Hero Vinoth (Minor) v. Seshammal [(2006) 5 SCC 545],**_ in Paragraph 28 , on the question whether an easement will extinguish due to non user held thus: _“28. The question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not by anything else. Easement of necessity and quasi-easement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its_ **RSA NO.985 OF 2010** **10** _user subject to any condition the parties will be governed by those conditions. Anyhow the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant in this case that it was to continue only until such time as the necessity was absolute; in fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognised and the servient tenement will be recognised and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Section 13 nor is it extinguished by the statutory provision under Section 41 of the Act which is applicable only to easement of necessity arising under Section 13.”_ 16. Hence, the contention of the plaintiff that the right of the defendant to use 'B' schedule pathway is lost by non user cannot be sustained. 17. The next question to be considered is whether the First Appellate Court was right in reversing the finding of the Trial Court that the parties are co-owners in respect of the compound wall on either side of the pathway, without an appeal preferred from the side of the defendant. Order 41 Rule 33 of the Code of Civil Procedure enables the Appellate Court to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that **RSA NO.985 OF 2010** **11** the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. The power of the Appellate Court in Order 41 Rule 33 is discretionary. The Apex Court in _**K.Muthuswami Gounder v. N.Palaniappa Gounder [(1998) 7**_ _**SCC 327],**_ held that the power under Order 41 Rule 33 should not be declined to be exercised merely on the ground that the party has not filed any appeal. In _**Mahant Dhangir and Another v. Madan Mohan and Others [1987 KHC 785]**_ , the Apex Court held that the words “as the case may require” contained in Order 41 Rule 33 enable the Appellate Court to pass any order or decree to meet the ends of justice. The challenge on the reversal of the finding of the First Appellate Court as to the right of the parties over 'C' compound wall on the ground that no appeal was preferred, will not sustain. In exceptional circumstances, the Appellate **RSA NO.985 OF 2010** **12** Court is competent to record a finding deviating from the one recorded by the Trial Court even without an appeal. 18. In the present case, the Trial Court in Paragraph 6 of the judgment, on the right of the parties over the 'C' schedule compound wall, held as follows:, _“In such circumstances it can be safely concluded that the parties are co-owners in respect of the compound wall on either side of the pathway. Nobody can have any exclusive right over the compound wall also.”_ 19. The First Appellate Court, while confirming the judgment dismissing the original suit, recorded the following finding on the right of the parties over plaint 'C' schedule compound wall:- _“19. Is it the case of the plaintiff that the plaint C schedule compound wall is the common compound wall? A reading of the plaint will go to show that the case of the plaintiff is that the C schedule compound wall was put up in his exclusive property. Defendant has disputed in fact that the C schedule compound wall is the common compound wall. Then what is the evidence to hold that the C schedule compound wall is a common compound wall. The case of the plaintiff is not established regarding common ownership of the C schedule compound wall also. Hence the claim of the plaintiff with respect to C schedule compound wall is also not maintainable.”_ ## 20. The learned counsel for the appellants contended that the First Appellate court had not applied any reasoning **RSA NO.985 OF 2010** **13** in holding that the claim of the plaintiff with respect to the 'C' schedule compound wall is not maintainable when there is a specific finding on this aspect by the Trial Court. This Court has carefully gone through the judgment of the First Appellate Court. The Appellate Court has not assigned any reasoning for arriving at a different finding on the right of the parties over 'C' schedule compound wall. In _**Santhosh Hazari v. Purushottam Tiwari (Deceased) By LRS [(2001) 3 SCC 179]**_ , the Apex Court held that first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons on all the issues arising along with the contentions put forth and pressed by the parties for decision of the Appellate Court. The Apex Court further held that while reversing a finding of fact, the Appellate Court must come to close quarters with the reasoning assigned by the Trial Court and then assign its own reason for arriving at a different finding. This would satisfy the Court hearing a further appeal that the First Appellate Court had discharged **RSA NO.985 OF 2010** **14** the duty expected of it. 21. In the present case, the judgment of the First Appellate Court reflects no conscious application of mind and the finding arrived at by the Court on the right of the parties over 'C' schedule compound wall is not supported by reasons. The resultant conclusion is that there had been no effectual adjudication of the dispute with regard to the right on the 'C' schedule compound wall, which has a direct bearing on the rival claims raised by the parties over 'B' schedule pathway. 22. Therefore, the matter deserves to be remitted to the First Appellate Court for fresh adjudication in accordance with law. In the result: (i) The Regular Second Appeal stands allowed by way of remand. (ii) The matter is remanded to the First Appellate Court to record finding on the limited question regarding the rights of the parties over 'C' schedule compound wall. **RSA NO.985 OF 2010** **15** (iii) The First Appellate Court will record a finding on the above aspect and pass a reversed judgment. (iv) The parties are directed to appear before the First Appellate Court on 10.01.2022. (v) The Court below shall expeditiously dispose of the appeal, at any rate, within three months from the date scheduled for the appearance of the parties. (vi) The parties are directed to bear their respective costs. **Sd/K.BABU JUDGE** VPK