Santhamma v. Njaralappuzha Devaswom

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 AS.32/2005 of SUB COURT, PALA OS.206/2002 of MUNSIFF COURT, PALA APPELLANTS : APPELLANT/PLAINTIFF SANTHAMMA, W/O.MATHAI, AGED 52 YEARS KARIMPANACKAL HOUSE, VAYALA KARA BY ADV. SRI.P.C.HARIDAS ## RESPONDENTS: RESPONDENTS/DEFENDANTS 1. NJARALAPPUZHA DEVASWAM REPRESENTED BY ITS MANAGER AND ADMINISTRATOR - NEELAKANDAN NAMBOOTHIRI, KIZHAKKEDATHUTHOTTI ILLATHU HOUSE, VAYALA KARA, ELAKKADU VILLAGE. 2. K.N.NEELAKANDAN NAMBOOTHIRI - S/O.NEELAKANDAN NAMBOOTHIRI, AGED 52 YEARS KIZHAKKEDATHUTHOTTI ILLATHU HOUSE VAYALA KARA, ELAKADU VILLAGE. 3. RAMAN NAMBOOTHIRI - S/O.NEELAKANDAN NAMBOOTHIRI, AGED 50 YEARS KIZHAKKEDATHUTHOTTI ILLATHU HOUSE VAYALA KARA, ELAKKADU VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/02/2008, THE COURT ON THE SAME DAY PASSED THE ## **M.SASIDHARAN NAMBIAR,J.** =========================== R.S.A. NO. 181 OF 2008 =========================== Dated this the 25th day of February, 2008 ## JUDGMENT Plaintiff in O.S.206/2002 on the file of Munsiff Court, Pala is the appellant. Respondents are the defendants. Appellant instituted the suit seeking a declaration of right of easement by prescription over item No.3 of the plaint schedule property, which is described as a way passing through item No.2 of the property belonging to respondents. Item No.1 of the plaint schedule property belongs to the appellant. She purchased it under Ext.A1 to A3. The case of appellant was that she was a kudikidappukari earlier in the property and the kudikidappu right was subsequently purchased from the landlord under Exts.A1 to A3 plaint schedule item No.3 property being part of item No.2 is being used as a road for the last more than 25 years for the ingress and egress to item No.1 of the plaint schedule property openly and R.S.A.181/2008 2 peaceably and appellant prescribed a right of way by easement of prescription as it was being exercised as of right and as an easement without obstruction and respondents have no right to cause any obstruction to the use of item No.3 of the plaint schedule property. A decree for declaration of the right of way and also permanent prohibitory injunction restraining respondents from causing obstruction were sought. Respondents resisted the suit contending that appellant never used item No.3 of the plaint schedule property as a road for the ingress or egress to item No.1 of the property. It was contended that there was a road ending on the northern side of the quarry situated in item No.2 of the plaint schedule property, which was being used by respondents for transporting granite boulder stones and there was no occasion for appellant or her predecessors to use that road. It was contended that appellant did not prescribe a right of way by easement of prescription and suit is to be dismissed. 2. Learned Munsiff on the evidence of Pws. 1 to 3, Dws.1 and 2 and Exts.A1 to A4, Ext.B1 and C1 R.S.A.181/2008 3 and C2 dismissed the suit holding that appellant did not establish that she or her predecessors have been using item No.3 of the plaint schedule property as a road, for the last more than 20 years prior to the institution of the suit and that too as an easement and as of right and so she is not entitled to the decree for declaration or injunction sought for. Appellant challenged the judgment before Sub Court, Pala in A.S.32/2005. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. 4. The argument of the learned counsel is that courts below did not properly appreciate the case set up by the appellant. It was argued that the very case of appellant was that she was a kudikidappukari in item No.1 of the plaint schedule property and has been residing therein for more than 30 years and has been using item No.3 of the plaint schedule property as a way as of right R.S.A.181/2008 4 and as an easement to reach item No.1 of the plaint schedule property and though jenm right of the property was purchased under Ext.A1 to A3 in 2002, item No.3 was being used for more than 20 years and courts below should not have been rejected the claim for the reason that appellant did not examine the assignor under Ext.A1. It was argued that appellant did not get possession of the property for the first time under Ext.A1 as she has been in possession of the property for the last 30 years prior to the institution of the suit and evidence of PW1 corroborated by PW3 and further proved by Ext.C1 and C2 reports, establish that the road has been in existence and appellant has been using that road as of right and as an easement and so a decree should not have been granted. Reliance was also placed on the decision of the learned single Judge of this court in **Radha v. Ramachandran (2002** ## **(2) KLT 41)** . 5. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 6. True, as declared in Radha's case (supra) 5 ## R.S.A.181/2008 if the appellant had prescribed a right of way by easement earlier or a way is available to the kudikidappukar Section 79A of Kerala Land Reforms Act would definitely protect that right. The question is whether appellant established that she or her predecessors have been using item No.3 of the plaint schedule property as of right and as an easement for more than 20 years openly,peaceably and without interruption and thereby prescribed a right of easement. Exts.A1 to A3 do not give any indication that there was a way or road to item No.1 of the plaint schedule properties, through item No.2 of the plaint schedule properties. Though PW1 claimed that she has been using item No.3 of the property as of right and as an easement for more than 20 years and evidence of PW3 was relied on in support of her claim, the trial court and first appellate court on appreciating the evidence found that it is not established that appellant has been using item No.3 property as a road and that too road as of right and as an easement for more than 20 years . It is to be born in mind what was claimed was that item No.3 is not 6 R.S.A.181/2008 a way but a road. Even according to appellant, a member of her family purchased a vehicle only two years prior to the institution of the suit. So long as the claim is not for a way but for a road, in the absence of evidence to prove that appellant or somebodyelse in her family was owning a vehicle there is absolutely no chance for using item No.3 of the plaint schedule property as a road and as of right for 20 years prior to the institution of the suit. On appreciating the entire evidence, I do not find any reason to interfere with the factual findings of the courts below. As appellant did not establish the necessary ingredients provided under section 15 of Indian Easement Act,she is not entitled to a decree for a declaration of right of easement by prescription or injunction. Appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- ## M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006