R.S.A.No.515 of 2004

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 2[ND] DAY OF AUGUST 2023 / 11TH SRAVANA, 1945** **R.S.A.NO. 515 OF 2004** **AGAINST THE JUDGMENT AND DECREE DATED 12.12.2002 IN A.S.NO.345 OF 1999 OF THE DISTRICT COURT, THRISSUR AND THE JUDGMENT AND DECREE DATED 22.07.1999 IN O.S.NO.462 OF 1997 OF THE MUNSIFF'S COURT, WADAKKANCHERRY** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** - **1 RAJAN AGED 61 YEARS, S/O.VADAKKUMMURI ASARI GOPALAN, 'DWARAKA',, VADAKKUMMURI DESOM, KADANGODE VILLAGE, THALAPPILLY TALUK.** - **2 NANTHAKUMAR, AGED 33, S/O.RAJAN 'DWARAKA', VADAKKUMMURI DESOM, KADANGODE VILLAGE, THALAPPILLY TALUK.** - **3 PRAKASAN, AGED 34, S/O. ACHUTHAN ASARI, VADAKKUMMURI DESOM, KADANGODE VILLAGE, THALAPPILLY TALUK.** **BY ADVS. SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** **1 GANGADHARAN AGED 51, S/O OZHICHILAYIL APPUKUTTAN @ AYYAPPAN, VADAKKUMMURI DESOM, KADANGODE VILLAGE, TALAPPILLY TALUK.** 2 ## **R.S.A.No.515 of 2004** **2 MOIDUTTY, AGED 60 YEARS S/O. KANIKKATH AYYAMMU, VADAKKUMMURI DESOM,, KADANGODE VILLAGE, TALAPPILLY TALUK.** **BY ADVS. SOJAN MICHEAL P.V.CHANDRA MOHAN** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 21.07.2023, THE COURT ON 02.08.2023 DELIVERED THE FOLLOWING:** 3 **R.S.A.No.515 of 2004** ## **P.G. AJITHKUMAR, J.** **-----------------------------------------------------------** **R.S.A.No.515 of 2004 ----------------------------------------------------------Dated this the 2[nd] day of August, 2023** ## **JUDGMENT** Defendants in O.S.No.462 of 1997 of the Munsiff’s Court, Wadakkancherry are the appellants. The suit was filed by the respondents seeking a decree of prohibitory injunction. The appellants filed written statement along with a counter claim for declaring that they obtained right of way by prescription as well as customary easement along B schedule to the counter claim and for a consequential injunction. The learned Munsiff decreed the suit thereby the appellants were restrained from trespassing upon the plaint schedule property, interfering with the peaceful possession and enjoyment of the property by the respondents or demolishing the fence on its boundary. The counter claim was dismissed. The appellants filed A.S.No.345 of 1999 before the District Court, Thrissur challenging the decree in the suit. The appellate court dismissed the appeal as per the judgment dated 12.12.2002. 4 **R.S.A.No.515 of 2004** 2. Heard the learned counsel appearing for the appellants. The learned counsel appearing for respondent No.1 did not turn up to make any submissions saying that the respondent did not have interest in the property now. ## 3. The substantial questions of law requiring consideration are,- - (i) Were not the courts below bound to take into consideration, the evidentiary value of Ext.X1, B1 and B2 to prove the existence of 'B' schedule passage in the suit? - (ii) Are the courts below justified in not considering the right of easement by prescription independently without considering the claim of customary easement? - (iii) Are not the courts bound to consider that the main ingredients of both easement by prescription and customary rights are identical except the former is personnel and the later belongs to a class or locality? 4. The 1[st] respondent is the plaintiff. His contentions were that the appellants tried to cut open a new pathway along the eastern portion of his property, which till recently was a paddy field. It is contended that the appellants demanded to provide a pathway so as to reach the public road on the southern side and the respondent assured to provide a portion of his 5 **R.S.A.No.515 of 2004** property for being used as a pathway provided the neighbouring property owners also leave a portion from their respective properties to lay the pathway. Since the appellants could not pursue the neighbouring to leave portions from their respective properties, laying of a new pathway became impossible. However, the appellants tried to cut open a pathway forcibly and hence he had filed the suit to restrain such an attempt. 5. The appellants put forward a case that a pathway starting from near their properties and passing along the _varamba_ across the paddy fields and the boundaries of a few properties, including that of the respondents, to reach the public road on the southern public road has been in existence for decades together and in the usage of the owners of the properties in that locality, including the appellants. Their allegation is that the respondents illegally interfered with the right of way and tried to close down it by erecting a fence and therefore their right of way along the said pathway, which has been described in B schedule to the counter claim is sought to be declared. 6 **R.S.A.No.515 of 2004** 6. The appellants tried to establish their right by letting in evidence through DWs.2 to 4 and Exts.C1, C1(a), C2 and C2(a) reports and sketches submitted by the Advocate Commissioner as well as Ext.X1, which is a certified copy of the file before the Sub Divisional Magistrate, Thrissur. The learned Mmnsiff did not accept the evidence tendered by the appellants as sufficient to prove existence of the pathway and usage of it in such a way as to enable the appellants to acquire a right as a prescription or a customary easement. Before the lower appellate court, the appellants pursued the claim of easement by prescription alone. It is seen that the appellants did not pursue their claim over the way as a customary easement. The appellants, however, raised the contention now that even if they are not entitled to have prescriptive right of way along B schedule, they are entitled to claim customary easement. 7. The learned counsel appearing for the appellants would submit that the lower appellate court did not even advert to Ext.X1 and was carried away by the observations of 7 ## **R.S.A.No.515 of 2004** the Commissioner in Exts.C1 and C2. Further, it is submitted that even if the right of prescription was to be found against, the right of the appellants over the B schedule pathway treating it as a ridge of the paddy field should have been considered. Whether both easement of prescription and customary easement can be claimed together was not a question mooted by either of the parties. When both those rights are put forward, the court may consider them alternatively. No doubt, the parameters to constitute a right of prescriptive easement and customary easement are distinct. Nature of user, period, etc. are different in regard to the said two rights. 8. The concurrent finding of the courts below is that till recently the property in question were paddy fields and the disputed B schedule pathway could only be a ridge of a paddy field. As could be from Ext.C1 and the evidence tendered by PW1, DW1 and DW2, who are the owners of the respective properties, it is quite evident that most of the paddy fields in the area were recently reclaimed. When exactly the 8 ## **R.S.A.No.515 of 2004** reclamation of these paddy fields took place is able to be ascertained from the available evidence. ## 9. In **Cherootty Balan v. Velayudhan Nair [1998** **(1) KLJ 479]** the question was regarding the acquisition of right of way by prescription along a ridge across paddy fields. Plaint B schedule in that case was the disputed way which admittedly was a ridge. This Court held that the plaintiff was using the B schedule, but its user can only be permissive. It is a common feature in Indian villages that people generally pass along the ridges between two paddy fields. Their right of way can only be permissive. The Court after considering the factual situation, particularly that there was no evidence to hold that the plaintiff was enjoying the B schedule ridge as of right for a continuous period of 20 years against the interest of the true owner held that the plaintiff cannot claim easement by prescription. 10. In **Kalyani v. Bhaskaran [1993 (1) KLT 415]** this Court restated the proposition expounded by the Judicial Committee of the Privy Council in **Attorney General of** 9 **R.S.A.No.515 of 2004** ## **Southern Nigeria v. John Holt and Company [(1915) AC** **599]** that the law must adapt itself to the conditions of modern society and trade, and there is nothing in the purposes for which the easement is claimed inconsistent in principle with a right of easement as such. 11. In view of the change in the nature and circumstances of the properties involved in this case, as stated above, the aforesaid principle has application. What follows is that if a dominant owner uses a pathway along such a reclaimed land for the statutory period of 20 years with such requirements to constitute a prescriptive easement right, the legal fiction against a claim of prescriptive right of way along the ridge of a paddy field does not apply. The dominant owner is able to prescribe right of way, provided he proves the usage of the pathway after such reclamation with characteristics required to prescribe the right including the requisite period of usage. 12. In view of the aforesaid principle of law, the appellants are not entitled to claim prescriptive easement right along the B schedule pathway. There is yet another 10 ## **R.S.A.No.515 of 2004** reason for their ineligibility for claiming prescriptive easement. DW1 is a defendant in the counter claim. Unless the way along his property and also properties of neighbouring property owners could be used, the appellants cannot have access to the public road on the southern side. DW1 categorically deposed that there exists no pathway along his property or that of Sri.Salim. The courts below considered all those factual aspects and took a concurrent view that the appellants failed to prove existence of the pathway and usage of the same, which enabled them to claim a prescriptive easement right. It is true that in Ext.X1 the Tahsildar after inspection of the properties noticed that the pathway portion was recently tilled and traces of usage of such a pathway could be seen. The courts below took the view that even if such a pathway was used by the appellants, it was along the ridges of paddy fields and therefore the appellants could not claim a right of way as an easement by prescription. In such circumstances, I am of the view that there is no reason to upset the concurrent findings of the courts below in the above regard. 11 ## **R.S.A.No.515 of 2004** 13. Section 18 of the Indian Easements Act, 1882 defines customary easement. If the appellants and also owners of the neighbouring paddy fields were using the pathway in dispute for customary purposes of cultivation, they could claim the right as a customary easement. Of course DW2 the appellant deposed in court that the said pathway was earlier used for taking cattle, manure, etc. to the paddy field and by coming through the public road on the southern side. DW4 also deposed in such a manner. Except stating such a stray sentence by both DWs.2 and 4, no details of such usage have been stated by them. As pointed out above, most of the paddy fields there were reclaimed. Paddy cultivation in most of such fields was stopped much earlier. As is seen from the oral testimonies of PW1 and DW1; even from the versions of DW2, it can be seen that several plots there are now residential ones. Even if the appellants and others, who own property in the nearby locality had used the disputed pathway at some point of time; till what time it was so used is not at all pleaded or proved. Upon considering all such aspects, I am 12 ## **R.S.A.No.515 of 2004** of the view that the appellants failed to establish a valid claim for a customary easement right. The continuous usage of the pathway for the customary purposes of cultivation is not proved there. Further, even if such a usage had been there, it was stopped much earlier, and in that circumstances, the appellants are disentitled to claim customary easement right. Accordingly, I hold that the claim of the appellants for right of pathway along the disputed B schedule as an easement by prescription or also as a customary easement cannot succeed. This appeal therefore fails. It is accordingly dismissed. There is no order as to costs. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr