Sainaba v. Souda and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH TUESDAY, THE 11TH DAY OF DECEMBER 2012/20TH AGRAHAYANA 1934 RSA.No. 1413 of 2012 () ----------------------------------AS.6/2012 of ADDITIONAL DISTRICT COURT, OTTAPALAM OS.102/2009 of MUNSIFF-MAGISTRATE COURT,PATTAMBI APPELLANT(S)/APPELLANT/PLAINTIFF: --------------------------------------------------------- SAINABA, AGED 47 TYEARS, W/O.MOIDEEN MUNDATH VEETTIL, KALLADIPATTA AMSOM DESOM, OTTAPALAM TALUK. BY ADV. SRI.R.SREEHARI RESPONDENT(S)/RESPONDENTS/DEFENDANTS: --------------------------------------------------------------------- 1. SOUDA, AGED 42 YEARS, W/O.ABDULLA, AACHIPARA VEEDU, KALLADIPATTA AMSOM DESOM, OTTAPALAM TALUK, PIN: 679 303. 2. ARIFA, , AGED 22 YEARS D/O. ABDULLA, AACHIPARA VEEDU, KALLADIPATTA AMSOM DESOM, OTTAPALAM TALUK, PIN: 679 303. 3. HAMSA, , AGED 59 YEARS, S/O. ABDULLA, THATTARUTHODI, KALLADIPATTA AMSOM DESOM, OTTAPALAM TALUK, PIN: 679 303. 4. ALAVI, , AGED 59 YEARS, S/O. KUNHAPPU, PARAMMAL, KALLADIPATTA AMSOM DESOM, OTTAPALAM TALUK, PIN. 679 303. ADV. SRI.SAIBY JOSE KIDANGOOR(CAVEATOR) - R1 & 2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.1413 of 2012 ==================================== Dated this the 11[th] day of December, 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 not decreeing the suit after holding that the plaint A and B schedule properties are identifiable? (ii) Whether the courts below are justified in not decreeing the suit especially when the plaintiff has categorically substantiated that she has got easement of necessity? (iii) Whether the courts below are justified in not decreeing the suit especially when the plaintiff has substantially proved that she has got easement by prescription? 3. Respondents 1 and 2 appear through counsel. Notice to respondents 3 and 4 is dispensed with since the claim against them was for recovery of damages, that claim is not now being **R.S.A. No. 1413 of 2012** -: 2 :- pursued and the appellant has not paid court fee for that claim. 4. The Second Appeal arises from the judgment and decree of the Munsiff-Magistrate Court, Pattambi in O.S. No.102 of 2009 confirmed by the Additional District Court, Ottappalam in A.S. No.6 of 2012. 5. The appellant-plaintiff sued the respondents for a decree for prohibitory injunction. The plaint A schedule belonged to the appellant as per Ext.A1, assignment deed No.3358 of 2007 executed by her father. Property of respondents 1 and 2- defendants 1 and 2 is situated on the north-western side of the plaint A schedule. That item was purchased by the husband of the 1[st] respondent from the father of the appellant. The plaint B schedule is a pathway described as having length of 50 feet and width of 13 feet. That way according to the appellant, is situated on the west of the plaint A schedule. The appellant claimed easement by necessity and prescription over the said way and apprehending interference by the respondents, laid the suit for prohibitory injunction. 6. Respondents 1 and 2 resisted the suit and contended that there is no such way as described in the plaint. Nor has the appellant any right of easement by prescription or necessity ## **R.S.A. No. 1413 of 2012** -: 3 :- over the said way. Property shown as pathway is the property of respondents 1 and 2 acquired by the husband of the 1[st] respondent. 7. The trial court found in favour of existence of the plaint B schedule way from Ext.C1, report of the Advocate Commissioner but held that the plea raised by the appellant as to her right over plaint B schedule is vague and contradictory. It was pointed out that as per the averments in the plaint it would appear that the plaint B schedule is not part of property acquired by the husband of the 1[st] respondent and hence there being no servient tenement, a claim of easement could not stand. The trial court also pointed out that the appellant has no case that the plaint B schedule is part of her property so that as owner of the plaint B schedule she could lay hands on that way and claim a decree for prohibitory injunction. So holding the suit was dismissed. That was confirmed by the first appellate court as well. 8. It is contended by the learned counsel for the appellant that the appellant can seek relief of injunction with respect to plaint B schedule on the strength of easement by way of necessity and prescription. 9. The learned counsel for the respondents submitted ## **R.S.A. No. 1413 of 2012** ## -: 4 :- that in the trial court the counsel for the appellant had conceded that he is not pursing the claim for easement by way of necessity and confined the claim to easement by prescription. In the first appellate court it was fairly conceded by the learned counsel for the appellant that the appellant was not able to prove the prescriptive right over the B schedule. 10. It is seen from paragraph 12 of the judgment of the trial court that though during the trial the appellant had not selected between the claim of easement by necessity and prescription, at the time of argument, to a specific question in that regard, counsel for the appellant stated that he is pressing the claim of easement by prescription. The first appellate court has also taken note of that statement and referred to that in paragraph 7 of the judgment. As things now stand, the claim of easement by necessity cannot be pursued by the appellant. 11. What remains is whether the appellant has established easement by prescription over the plaint B schedule? 12. It is contended by the learned counsel for the respondents that the appellant got title over the Plaint A schedule only as per Ext.A1 of the year 2002 while the suit is filed in the year 2009. ## **R.S.A. No. 1413 of 2012** -: 5 :- 13. I am not inclined to think that for that reason alone the claim for easement by prescription should be defeated since if the predecessor-in-interest of the appellant was using the plaint B schedule property, that period also could be tagged on to the period of user by the appellant. 14. It appears that the plaint was not properly drafted while claiming right over the plaint B schedule. According to the appellant, except the plaint B schedule she has no other access to the plaint A schedule. It is so pleaded in paragraph 4 of the plaint. 15. Though the existence of the plaint B schedule way was disputed by the respondents, that is proved by Exts.C1 and found in favour by the courts below as well. 16. The deficiency is in the matter of proper pleadings and evidence regarding the right claimed by the appellant. Having regard to the various aspects of the matter I am inclined to grant an opportunity to the appellant to amend the plaint if so advised incorporating appropriate pleas and reliefs excluding the claim of easement by necessity (which was given up in the trial court) and adducing further evidence if any. 17. I must notice that though in **Ibrahimkutty v.** **R.S.A. No. 1413 of 2012** ## -: 6 :- **Abdul Rahumankunju** (1992 [2] KLT 775) this Court also observed that a right of easement is a precarious right which must be specifically pleaded and proved this Court was inclined to remand the case to allow the parties to adduce proper evidence. Having regard to the facts of this case, I am also inclined to adopt that course. 18. The substantial questions of law framed are answered as above. The Second Appeal is allowed by way of remand as under: (i) Judgment and decree of learned Additional District Court, Ottappalam in A.S. No.6 of 2012 and of the learned MunsiffMagistrate, Pattambi in O.S. No.102 of 2009 are set aside. (ii) O.S. No.102 of 2009 is remitted to the MunsiffMagistrate's Court, Pattambi for fresh decision in the light of the observations and directions made above after giving opportunity to both sides to amend their pleadings and adduce further evidence, if any. (iii) Parties are directed to appear in the MunsiffMagistrate's Court, Pattambi on 10.01.2013. **R.S.A. No. 1413 of 2012** -: 7 :- (iv) Parties shall suffer their costs throughout. Registry shall send back the lower court records forthwith. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv