S.A. No. 5 of 1994

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR** ## **WEDNESDAY, THE 27TH JUNE 2007 / 6TH ASHADHA 1929** **SA.No. 5 of 1994()** **------------------** ## **(AGAINST THE JUDGMENT IN AS.47/1991 DATED 30TH DAY OF JULY 1993 ON THE FILE OF THE SUB COURT, MUVATTUPUZHA IN OS.432/1988 DATED 16/03/1991 ON THE FILE OF THE MUNSIFF COURT,MUVATTUPUZHA)** **....................** ## **APPELLANT: RESPONDENT:DEFENDANT:** **------------------------------------------------------------** **YOHANNAN, S/O. ULAHANNAN, AGED 73 YEARS, THURUTHEKKUDIYIL, RAMAMANGALAM KARA OF RAMAMANGALAM VILLAGE, ERNAKULAM DISTRICT.** **BY ADV. SRI.M.C.NAMBIAR SRI.M.RAJENDRAKUMAR** ## **RESPONDENTS: APPELLANTS:PLAINTIFFS:** **--------------------------------------------------------------** **1. RUGMINI AMMA, D/O.LAKSHMI AMMA, AGED 63 YEARS, PADICKAL MARATHU HOUSE, RAMAMANGALAM KARA OF RAMAMANGALAM VILLAGE, ERNAKULAM DISTRICT.** **2. GIRIJA, D/O.RUGMINI AMMA, AGED 36 YEARS, PADICKAL MARATHU HOUSE, RAMAMANGALAM KARA OF RAMAMANGALAM VILLAGE, ERNAKULAM DISTRICT.** **BY ADV. SRI.V.SANKARA RAJA for R1 & R2** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27/06/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **...2/-** **...2....** ## **S.A.NO.5/1994** ## **J U D G M E N T** **No steps taken. Appellant is no more. Legal heirs did not come up. Appeal is dismissed as abated.** **27/06/2007** **Sd/-M.Sasidharan Nambiar, Judge** **Order in C.M.P.NOs.8/1994 and 1125/1994 in S.A.No.5/1994** **Dismissed** **27/06/2007** **Sd/-M.Sasidharan Nambiar, Judge** **/True Copy/** **P.A.to Judge** ## **M.SASIDHARAN NAMBIAR,J.** =========================== S.A. NO. 5 OF 1994 =========================== Dated this the 21st day of February, 2008 ## JUDGMENT Defendant in O.S.432/1988 on the file of Munsiff Court, Muvattupuzha is the appellant. Defendants are the respondents. The suit was filed for declaration of right of way over plaint B schedule property and for permanent prohibitory injunction. Plaint A schedule property admittedly belongs to respondents under Ext.A1 purchase certificate obtained as per order in O.A.3660 of Land Tribunal, Ernakulam. The property was originally part of the properties of the family of first respondent which was allotted to the share of first respondent as per partition deed 1856 of 1958. According to respondents, plaint B schedule property is a way having a width of 3 feet which starts from the southern PWD road and proceeds towards the north and lies in between the property of respondents on the east and that of the 2 S.A.5/1994 appellant on the west. What was contended in the plaint was that the said way was formed by dedicating 1 ½ feet width of property from the properties of respondents and 1 ½ feet width of property from the property of appellant and similarly properties on either side of that way which lies further towards the north were also dedicated for forming the way. It was contended that plaint B schedule way is being used by respondents as of right without interruption openly and peacefully for more than 30 years and thereby they have prescribed a right of way by easement of prescription and appellant attempted to obstruct the way and he has no right to do so and respondents are therefore entitled to a decree for a declaration of right of way by easement prescription and also a permanent prohibitory injunction. 2. Appellant in his written statement disputed the claim. It was contended that there is no way as plaint B schedule property and no portion of the S.A.5/1994 3 property of appellant was being used as claimed by respondents. It was contended that in between the properties of appellant and respondents, there is a water channel for flow of water towards the north, where on the northern side there is a river and during rainy season water used to enter through the water channel and the said water channel was never used as a way and respondents did not have a right of way by easement of prescription over plaint B schedule way and appellant did not dedicate any portion of his property for a way. 3. Learned Munsiff on the evidence of Pws.1 to 4, DW1, Exts.A1 and C1 and C2 dismissed the suit holding that respondents did not establish a right of way by easement by prescription over plaint B schedule property and they are not entitled to the decree. Respondents challenged the judgment before the Sub Court, Muvattupuzha in A.S.47/1991. Learned Sub Judge on reappreciation of evidence set aside the finding of the learned Munsiff and found that plaint B schedule way exist and respondents S.A.5/1994 4 have a right of way by easement of prescription. A decree for declaration as well as injunction was granted. It is challenged in the second appeal. 4. Second appeal was admitted formulating the following substantial questions of law. 1. Whether first appellate court was justified in - granting a right of way by easement of prescription when the ingredients of Section 15 - of Indian Easement Act were not established. 2. When the report submitted - by the Commissioner and the evidence do not establish - plaint B schedule way, - whether first appellate court was justified in granting a right of way by easement of prescription. 5. Learned counsel appearing for appellant and S.A.5/1994 5 respondents were heard. 6. The argument of learned counsel appearing for appellant is that first appellate court did not properly appreciate the evidence and was not justified in reversing the findings of the trial court, when the trial court on proper appreciation of evidence found that respondents did not establish that they have been using plaint B schedule way for the requisite period and that too as of right and as an easement and therefore the judgment is not sustainable. 7. Learned counsel appearing for respondents argued that as rightly found by first appellate court, evidence establish that plaint B schedule way exists and plaint B schedule way has been used by respondents for the last more than 30 years to enter the southern public road from plaint A schedule property and the way is being used as of right and as an easement openly and peacefully and first appellate court rightly granted the decree. Relying on the decision of the High Court of S.A.5/1994 6 ## **Himachal Pradesh in Suresh Chand v. Hindu Mal.(AIR** **1994 HP 56)** it was argued that when existence of plaint B schedule way is proved by the report of the Commissioner as well as evidence and it was also proved that respondents have been using that way, it could only be as of right and as an easement and first appellate court rightly upheld the claim for easement of prescription. 8. The specific case pleaded in the plaint was that plaint B schedule property was formed by surrendering a portion of the property belonging to respondents as well as the appellant. The case was that on the west of the property of the respondents 1 ½ feet width of land was dedicated by respondents for the purpose of formation of the way. It was also pleaded that from the eastern portion of their property, appellant also dedicated a portion of the property having a width of 1 ½ feet for the purpose of using it as part of the way. Similarly the owners of the property which lies further to the north also dedicated portions of their 7 ## S.A.5/1994 property on either side to form the way. It is the case in the plaint that plaint B schedule way was formed by such dedication and the way starts from the southern PWD road and proceed towards north and respondents have been using that way as of right and as an easement, openly peaceably without obstruction for more than 30 years. It is on that basis a right of easement by prescription was set up. If the case of respondents is that plaint B schedule property was dedicated and thereby it became a public way, the right of way that could be claimed could only be on the basis that it is a public way and not based on a right of easement by prescription. If case of respondents is to be accepted, out of 3 feet width of plaint B schedule property 1 ½ feet width of property belongs to respondents. If that be so, respondents cannot claim a right of way by easement of prescription over that portion of the plaint B schedule property, as respondents are the owners of that property and they cannot prescribe a right of way S.A.5/1994 8 over their own property. If at all the claim could only be in respect of the remaining eastern 1 ½ width of property. 9. Reliance was placed on Ext.C1 report to canvass the position that plaint B schedule way exists. It was argued that plaint B schedule way as noted by the Commissioner starts from the southern road and proceeds further towards the north upto the northern river. But when the evidence was recorded , PW2 the Ex-President of the Panchayat and PW3 who is none other than the brother-in-law of respondent deposed that originally there was no road further towards the north of plaint A schedule property and a Panchayat road was formed on the north of plaint A schedule property and after the formation of that road, the way which is proceeding from the north towards the south and reaches the Ramamangalam -Pampakkuda road is not being used. It was also deposed by them that northern road was formed about 15 to 20 years back. Evidence of PW1 who claims a S.A.5/1994 9 right of way by easement prescription limited his claim for a portion of plaint B schedule way. The evidence of PW1 is only to the effect that almost at the middle of the western boundary of plaint A schedule property, there are steps to enter from plaint A schedule property to plaint B schedule property and respondents have been using that way to reach the southern public road. PW1 did not give any evidence with regard to the use of the way, which proceeds further towards the north from the point where the Commissioner could find steps in the plaint B schedule property. Therefore even if the evidence of PW1 is accepted, it would only establish the existence of a way further towards the south from the steps in the plaint B schedule property upto the southern road and not the entire plaint B schedule property. 10. PW2, the previous President of the Panchayat deposed that there was a dispute with regard to the way during 1977 and on the request of respondents, he intervened and then appellant S.A.5/1994 10 agreed not to cause any obstruction and subsequently in 1987 also the same complaint was raised by respondents and he found that the way was obstructed. Even if the evidence of PW2 is belived, it would only show that during 1977 when he inspected the property for the first time, he could find a way. The suit was instituted in 1988 and evidence of PW2 will not establish a right of way which is being used by respondents for more than 20 years. PW3 the brother-in-law was examined to prove the existence of the way. Even if the evidence of PW3 is to be accepted, that way which was originally being used was discontinued after the formation of the northern road 15 to 20 years prior to the date of institution of the suit. The only other evidence is that of PW4 the Commissioner. Though in Ext.C1 report Commissioner reported about existence of plaint B schedule way, when examined as PW4 he deposed that what was reported by him is a water channel and he could not find any trace to show that it is used as a way S.A.5/1994 11 and as it was a channel he assumed that it could be used as a way. If that be so, from this evidence, first appellate court was not justified in granting a right of easement by prescription. 11. Ext.A1 itself shows that the southern boundary of plaint A schedule property is a road. It is admitted that Ramamangalam- Pampakkuda road forms the southern boundary of the entire plaint A schedule property. So also it is admitted that to the north of the plaint A schedule property is the Panchayat road which was subsequently formed, which according to PW3 was 15 to 20 years back. Therefore on the northern and southern side of the plaint A schedule property there are public roads. In such circumstance question is whether respondents are entitled to a right of way by easement of prescription over plaint B schedule property. 12. True, existence of an alternate way or availability of a road on the boundary of the property of respondents by itself is not a S.A.5/1994 12 sufficient ground to deny a right of way by easement of prescription, if respondents have established the ingredients provided under section 15 of Indian Easement Act. What is to be proved by respondents to get a decree for right of way by easement prescription is that respondents have been using the way openly, peacefully and without interruption for more than 20 years and that too as an easement and as of right. As stated earlier, when the very case of the respondents is that half of the plaint B schedule property belongs to him, he cannot claim a right of way by easement of prescription over that half of the plaint B schedule property. There is no satisfactory evidence to prove that respondents have been using the remaining 1 ½ of plaint schedule property as a way so as to claim a right of easement by prescription. Moreover, there is no evidence to prove that plaint B schedule property or a portion of plaint B schedule forms part of the property of respondents. What was claimed by respondents was S.A.5/1994 13 that plaint B schedule property was in existence for the last more than 30 years and the way was dedicated by the original owners. If that be so, the western boundary of the property of respondents should have been shown as a way and not the property of respondents, as seen in Ext.A1. Unfortunately these crucial aspects were omitted to be appreciated by the first appellate court and a decree was granted. On the evidence the trial court rightly found that respondents did not establish a right of easement by prescription over plaint B schedule property. Hence respondents are not entitled to a decree for declaration or injunction granted by the first appellate court. Second appeal is allowed. The judgment in A.S.47/1991 is set aside. O.S.432/1988 is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- ## M.SASIDHARAN NAMBIAR, J. --------------------S.A..NO.5 /1994 --------------------- JUDGMENT 21[st] February,2008