R.S.A Nos.1066 of 2006 & 1081 of 2006

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN TUESDAY, THE 10[TH] DAY OF JANUARY 2023 / 20TH POUSHA, 1944 RSA NO. 1081 OF 2006** **AGAINST THE JUDGMENT AND DECREE DATED 31.7.2006 IN AS 74/2000 OF ADDITIONAL DISTRICT COURT,PATHANAMTHITTA AGAIINST THE JUDGMENT AND DECREE DATED 29.7.2000 IN OS 48/1996 OF MUSNIFF COURT,ADOOR** ## **APPELLANT/RESPONDENT IN A.S/PLAINTIFFS IN O.S:** JANAKY AMMA THANKAMMA,AGED 59, W/O SIVARAMAN NAIR, SURESH BHAVAN, KALANJOOR MURI, KALANJOOR VILLAGE, PATHANAMTHITTA. BY ADVS. SRI.R.LAKSHMI NARAYAN SMT.R.RANJANIE ## **RESPONDENTS/APPELLANTS IN A.S/DEFENDANTS IN O.S:** DROUPATHI AMMA,AGED 49, W/O.GOPALAKRISHNAN NAIR, MUNDAPPALLIL HOUSE, KALANJOOR MURI AND VILLAGE, PATHANAMTHITTA. BY ADVS. SRI.V.N.ACHUTHA KURUP SR. SRI.BINDU SREEKUMAR SRI.B.S.SWATHI KUMAR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2023, ALONG WITH RSA.1066/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN TUESDAY, THE 10[TH] DAY OF JANUARY 2023 / 20TH POUSHA, 1944 RSA NO. 1066 OF 2006 AGAINST THE JUDGMENT AND DECREE DATED 31.7.2006 IN AS 73/2000 OF ADDITIONAL DISTRICT COURT,PATHANAMTHITTA AGAINST THE JUDGMENT AND DECREE DATED 29.7.2000 IN OS 30/1996 OF MUSNIFF COURT,ADOOR** ## **APPELLANTS/RESPONDENTS IN A.S/PLAINTIFFS IN O.S:** 1 SIVARAMAN NAIR, AGED 62,S/O.ACHUTHAN NAIR, HINU-NAIR, MUNDAPPALLIL HOUSE, KALANJOOR MURI, KALANJOOR VILLAGE, PATHANAMTHITTA. 2 JANAKY AMMA THANKAMMA, AGED 59 W/O.SIVARANAM NAIR, -DO- -DOBY ADVS. SRI.R.LAKSHMI NARAYAN SMT.R.RANJANIE ## **RESPONDENTS/APPELLANTS IN A.S/DEFENDANTS IN O.S:** 1 GOPALAKRISHNAN NAIR, AGED 57, S/O.ACHUTHAN NAIR, MUNDASPPALLIL HOUSE, KALANJOOR MURI AND VILLAGE, PATHANAMTHITTA. 2 DROUPATHI AMMA, AGED 49, -DO- -DOBY ADVS.V.N.ACHUTHA KURUP (SR) BINDU SREEKUMAR B.S.SWATHI KUMAR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2023, ALONG WITH RSA.1081/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **Sathish Ninan, J.** **============================== R.S.A Nos.1066 of 2006 & 1081 of 2006 ========================== Dated this the 10[th] day of January, 2023** ## **JUDGMENT** R.S.A No.1066 of 2006 arises from O.S No.30 of 1996. It is a suit for declaration of easement right of way and injunction, filed by the appellants as plaintiffs. R.S.A No.1081 of 2006 arises from O.S No.48 of 1996. It is filed by the respondent as plaintiff for fixation of boundary. The trial court upheld the plea of easement, and decreed the suit for fixation of boundary subject to the right of way of the appellants. The first appellate court set aside the decree for easement and dismissed the suit. The suit for fixation of boundary was decreed as prayed. 2. The 1[st] plaintiff and the 1[st] defendant in O.S No.30 of 1996 are brothers. The 2[nd] plaintiff is the wife of the 1[st] plaintiff, and the 2[nd] defendant is the wife of the 1[st] defendant. O.S No.48 of 1996 namely the ## R.S.A Nos.1066 of 2006 & 1081 of 2006 -: 2 :- suit for fixation of boundary is filed by the 2[nd] defendant in O.S No.30 of 1996 against the 2[nd] plaintiff in O.S No.30 of 1996. 3. The appellants have no grievance regarding the decree for fixation of boundary. Their challenge is limited to the denial of their prescriptive right of way. Hence, R.S.A 1066 of 2006 which arises from O.S No.30 of 1996 is being considered as the leading case. The parties are referred to according to their status in O.S.30 of 1996 (easement suit), and so also the plaint schedule properties. 4. Plaint schedule item No.1 belongs to the 2[nd] plaintiff as per Ext B1 Gift Deed executed by the 1[st] plaintiff. On the southern side of plaint item No.1 is plaint item No.2 having an extent of 65 cents. Out of the 65 cents, the northern 23 cents belongs to the 2[nd] defendant. The remaining property on the south belongs to the 1[st] defendant. On the southern side of the plaint item No.2 is a public road. Plaint item No.3 is the way claimed by the plaintiffs through the eastern R.S.A Nos.1066 of 2006 & 1081 of 2006 -: 3 :- portion of plaint item No.2 for access to item No. 1. The plaintiffs claim a prescriptive easement right over plaint item No.3. 5. The defendants, though admitted the existence of plaint item No.3 up to the northern 23 cents out of plaint item No.2, denied its existence in continuance thereto into the plaintiff's property. 6. Before the trial court three Commissioners' reports were obtained. Ext C3 report and Ext C3(a) sketch obtained in O.S No.30 of 1996, and Exts C1, C1(a), C2 and C2(a) were obtained in O.S No.48 of 1996. Exts. C2(a) is a sketch prepared on survey. The trial court, on analysing the evidence and circumstances, upheld the plea of prescriptive easement right of way of the plaintiffs. While decreeing O.S No. 48 of 1996, namely the suit for fixation of boundary, it was made subject to the prescriptive easement right of way. On appeal, the first appellate court set aside the decree in O.S No.30 of 1996(easement suit) and dismissed the suit. ## R.S.A Nos.1066 of 2006 & 1081 of 2006 -: 4 :- Boundary was directed to be fixed as per Ext C2(a) plan. 7. When the Second Appeal was taken up for hearing, the learned counsel for the respondents submitted that they had relinquished the vakalath for the respondents long back and that they are not appearing in the matter any more. There is no appearance for the respondents. The appeal is of the year 2006. It was listed for hearing on 15.12.2022 and 20.12.2022. It has again come up for hearing. I do not consider it necessary to keep the matter pending any longer awaiting any appearance on the side of the respondents. 8. Heard the learned counsel Sri.R.Lekshmi Narayan on the following Substantial Questions of Law: - 1) _Was the first appellate court right in having held against the existence of plaint item No.3 way in the light of Exts C3 and C3(a) Commissioner's report and sketch?_ - 2) _Has there been a misreading of the evidence by the first appellate court, leading to an erroneous finding on the plea of easement?_ R.S.A Nos.1066 of 2006 & 1081 of 2006 -: 5 :- 9. As noticed, the 1[st] plaintiff and the 1[st] defendant are brothers. The plaint schedule properties belonged to their family. There had been partition and transfers resulting in the vesting of the properties in the manner as stated first above – plaint item No.1 belongs to the 2[nd] plaintiff, northern 23 cents out of plaint item No.2 (65 cents) belongs to the 2[nd] defendant, and the remaining extent out of the 65 cents belongs to the 1[st] defendant. 10. Firstly, I shall deal with the issue regarding the existence of plaint item No.3 as claimed by the plaintiffs. Exts C3 and C3(a) commissioner’s report and sketch reveal about the existence of the plaint item No.3 way leading into plaint item No.1. Here it is to be noted that, the existence of plaint item No.3 up to the northern 23 cents belonging to the 2[nd] defendant is admitted. It is only its continuation into the plaintiffs' property, which is disputed. There is a residential house situated in plaint item No.1. The said house faces towards east, that is, R.S.A Nos.1066 of 2006 & 1081 of 2006 -: 6 :- towards plaint item No.3 way. The Commissioner noticed the existence of plaint item No.3 way into plaint item No.1. He also noticed that in the defendant's property, at the disputed portion of plaint item No.3, rubber trees are standing 10 feet apart. The Commissioner noticed attempts to obstruct the way by unloading of sand. Exts C1 and C1(a) are the report and sketch obtained in O.S No.48 of 1996. Therein also the Commissioner has noticed the continuation of item No.3 into the plaintiffs' property, but has stated that, since that place was covered with dry leaves, sand and rubble, he was unable to opine whether it is used as way or not. Reading of Exts C3 and C1 is sufficient enough to find the existence of plaint item No.3 way as claimed by the plaintiffs. 11. As noticed supra, plaint items 1 to 3 belonged to the family. The existence of way up to the northern portion of plaint item No.2-65 cents, is admitted by the defendants. If there was such a way when the family owned the entire property, in all ## R.S.A Nos.1066 of 2006 & 1081 of 2006 -: 7 :- probabilities that must be the way for access to plaint item No.1 also, which is a part of the very same property. 12. The alternate way suggested by the defendants is to the north of yet another property situated on the northern side of plaint item No.1. Though the said property on the north of plaint item No.1 was purchased by the 1[st] plaintiff, it is an acquisition which occurred much later. Therefore, that cannot be a ground to find against the existence of plaint item No.3 into plaint item No.1. The aforesaid aspects have not been considered by the first appellate court. 13. To hold against the claim of the plaintiffs, the appellate court has referred to the deposition of the 1[st] plaintiff that in the year 1978 he had gone out of State and that certain obstructions were caused by the defendants to the way. There is no evidence that there was an absolute prevention against the enjoyment of the way. Even the commissioners’ reports do not state about any permanent obstruction to the way. In ## R.S.A Nos.1066 of 2006 & 1081 of 2006 -: 8 :- **Pankan Soman v. Manoharan C.K., (2019(1) KHC 817)** , this Court held that a mere partial prohibition or a reduction of extent of enjoyment is not sufficient to find cessation of enjoyment. 14. The trial court had correctly appreciated the evidence and upheld the plea of prescriptive easement right of way. The evidence has been misread by the first appellate court leading to erroneous conclusion and consequential interference with the trial court decree. Substantial Questions of Law are answered accordingly. 15. The plaintiffs are entitled to get their prescriptive easement right of way over plaint item No.3 declared. The trial court had granted the decree for fixation of boundary subject to the easement right of way of the plaintiffs over the plaint item No.3 way with specific reference to Ext C2(a) plan. The decree of the trial court is liable to be restored. Resultantly, the Regular Second Appeals are allowed. The decree and judgment of the first R.S.A Nos.1066 of 2006 & 1081 of 2006 -: 9 :- appellate court are set aside and that of the trial court in O.S Nos. 30 of 1996 and 48 of 1996 are restored. Sd/- **Sathish Ninan, Judge** vdv