## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN**
**TUESDAY, THE 8TH DAY OF JULY 2014/17TH ASHADHA, 1936**
## **RSA.No. 6 of 2014 ()**
**--------------------AS 36/2012 of PRINCIPAL SUB COURT,KOCHI IN OS 247/2010 of PRL.MUNSIFF COURT, KOCHI**
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## **APPELLANT/RESPONDENT/DEFENDANT :**
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**SMT.SEREENA.K.A. , AGED 61 YEARS, DAUGHTER OF SRI.MOIDU, RESIDING AT HOUSE NO.20/586 A, NAMBIAPURAM ROAD, THAMARAPARAMBU, PALLURUTHY, KOCHI-682006 REPRESENTED BY HER POWER OF ATTORNEY HOLDER SMT.P.H.AJITHA, DAUGHTER OF SMT.SEREENA, RESIDING AT 20/586 A, NAMBIAPURAM ROAD, THAMARAPARAMBU, PALLURUTHY KOCHI-682006.**
**BY ADVS.SRI.ANIL S.RAJ SRI.K.P.SHIBU SMT.K.N.RAJANI SMT.ANILA PETER SRI.J.VIVEK GEORGE SMT.C.PRABITHA**
**RESPONDENT/APPELLANT/PLAINTIFF :**
**SMT.K.A.ANNIE, AGED 41 YEARS, WIFE OF JOSEPH, PULINTHARA HOUSE, HOUSE 20/586 E, NAMBIAPURAM ROAD, THAREPARAMBU, PALLURUTHY, KOCHI-682006**
**BY ADVS. SRI.THOMAS T.VARGHESE SRI.N.SASI SRI.B.JAYASANKAR SMT.T.M.BINITHA**
**THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**BP**
## **P.BHAVADASAN, J. ----------------------------------------------Regular Second Appeal No.6 OF 2014 ----------------------------------------------Dated this the 8[th] day of July, 2014.**
## **J U D G M E N T**
The defendant in O.S.No.247/2010 before the Munsiff Court, Kochi who suffered a decree at the hands of the lower appellate court is the appellant.
2. One Devassy obtained 5 cents of land by kudikidappu. By Ext.A4 document of the year 1995, he sold 2 cents of property to one Abdulla Sha. Abdulla Sah in turn sold that 2 cents to Hameed and Kaulu who as per Ext.A2 sold the property to one Shakeela. The plaint schedule property is covered by Ext.A1 document of the year 2007. While selling the 2 cents, Devassy had set apart a 6 links pathway through his property for gaining access to A schedule property. It is thereafter that the balance 3 cents was ultimately given to the defendant.
3. The complaint of the plaintiff was that 6 links pathway has been reduced to 4 links by the defendant by putting up a compound wall. The suit initially was one for mandatory
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injunction seeking removal of compound wall which was subsequently amended to one for recovery of possession.
4. The defendant resisted the suit by pointing out that the compound wall was put up with the acquiescence of the predecessor in interest of the plaintiff. There was conscious waiver of right with reference to 6 links pathway. Having obtained the property from the predecessor in interest who gave acquiescence to the modification, the plaintiff cannot now contend that she is entitled to 6 links of pathway.
5. On the above pleadings, issues were raised by the trial court and the parties went to trial. The evidence consists of the testimony of PW1 and the documents marked as Exts.A1 to A7. The defendant had DWs 1 to 3 examined and Ext.B1 marked. Exts.C1 and C1(a) are the commission report and plan. CW1 was examined as court witness.
6. The trial court, on evaluation of the evidence, accepted the case put forward by the defendant and dismissed the suit. The aggrieved plaintiff, carried the matter in appeal as A.S.No.36/2012.
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7. The lower appellate court found that there was no acquiescence or waiver as contended by the defendant and as far as the plea of limitation is concerned, it was found to be a continuing course of action. Accordingly, the appeal was allowed and decree was granted in the following terms.
1. The defendant is directed by a mandatory injunction to remove the compound wall constructed by her encroaching upon plaint 'B' schedule property.
2. The defendant and her men are restrained by a permanent prohibitory injunction from trespassing upon plaint 'B' schedule property and also from interfering with the peaceful enjoyment of the same by the plaintiff.
3. The plaintiff is not entitled to get any other relief claimed in the plaint.
4. Considering the facts and circumstances of the case, the parties are directed to suffer their costs throughout the proceeding.
8. Aggrieved by the findings of the lower appellate court,
the appellant has come up before this Court.
9. The following substantial questions of law are seen
formulated in the memorandum of appeal.
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- (i) Is the lower appellate court justified in reversing the finding entered by the trial court and in holding that the plaintiff has got easement right over plaint 'B' schedule property?
- (ii) Is the lower appellate court correct in granting a decree for mandatory injunction since the existing pathway has got only a width of 4 links?
10. Learned counsel appearing for the appellant contended that the lower appellate court was not justified in interfering with the decree of the trial court which, on evaluation of evidence, found that the relief sought for by the plaintiff could not be granted. The trial court was inclined to accept the plea put forward by the defendant that there was acquiescence of the predecessor in interest of the plaintiff and the said conduct of the predecessor in interest of the plaintiff is binding on the plaintiff also. Learned counsel went on to point out that the lower appellate court was not justified in holding that there was no waiver of right by the plaintiff's predecessor in interest and she is entitled to a decree as prayed for.
11. Referring to the evidence of DWs 2 and 3, it was contended by the learned counsel for the appellant that at any
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rate DW2 was an independent witness. Even assuming that DW3 had an interest in the matter which showed that boundary wall was put up with the acquiescence of DW3 also who took no objection when the compound wall was put up, it would show that there was abandonment of right with reference to 6 links of pathway.
12. As far as the plea of limitation is concerned, it was contended by the learned counsel for the appellant that compound wall was constructed in 1996 and mandatory injunction was sought only much later which is clearly barred by limitation.
13. Learned counsel appearing for the respondent, on the other hand, pointed out that the document of title by which the respondent obtained property would clearly show that there was 6 links of pathway in existence as on the date of assignment in her favour. She obtained property from DW3. In the light of the said fact, the claim made by DW3 to the contrary cannot be accepted.
14. As far as the plea of limitation is concerned, according
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to the learned counsel for the respondent, it is covered by Section 22 of the Limitation Act which says that in the case of continuing breach, a fresh period of limitation begins to run on every breach. For the said proposition, learned counsel relied on the decision in _**Sankar Dastidar** vs._ _**Shrimati Banjula Dastidar and another**_ (2007 KHC 3460).
15. After having heard the learned counsel for the appellant and the learned counsel appearing for the respondent, it seems that the learned counsel for the respondent is well justified in his submission that the appellant is not entitled to any relief. The plea of abandonment or waiver can be taken only with a pinch of salt. Reliance placed on the evidence of DWs 2 and 3 cannot be accepted for the simple reason that DW3, who is none other than the assignor of defendant, in his assignment deed has clearly stated that the pathway has 6 links. DW3 does say that the width is only 4 links and it was with her consent that the compound wall was put up.
16. True, DW3 is an independent witness. But, the plea of abandonment has to be strictly proved as it involves the giving of
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right consciously by the person concerned. It has also been found that the evidence in this regard by DW3 cannot be accepted in the light of the document executed by her in favour of the plaintiff by which the plaintiff obtained 2 cents of property shown as plaint A schedule property.
17. Reliance is placed on Section 38(a) of the Indian Easements Act in support of the plea of abandonment. Section 38(a) of the Indian Easements Act reads as follows:
“38. Extinction by release.- An easement is extinguished when the dominant owner releases it, expressly or impliedly, to the servient owner.
Such release can be made only in the circumstances and to the extent in and to which the dominant owner can alienate the dominant heritage.
An easement may be released as to part only of the servient heritage.
Explanation I.- An easement is impliedly released-
(a) where the dominant owner expressly authorises an act of a permanent nature to be done on the servient heritage, the necessary consequence of which is to prevent his future
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enjoyment of the easement, and such act is done in pursuance of such authority”.
18. A bare reading of the provision shows that there should be an express authorization so as to attract the said provision. By no stretch of imagination, the said provision can be applicable to facts of this case. As far as the plea of limitation is concerned, as rightly pointed out by the learned counsel for the respondent, Section 22 of the Limitation Act governs the case. That reads as follows:
“22. Continuing breaches and torts.- In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues”.
19. It cannot be disputed that the existence of compound wall in derogation of right of plaintiff is a continuing course of action and if that be so, as long as the breach continues, there course of action arises every moment. If any authority is required, that is furnished by the decision in _**Sankar Dastidar** vs._ _**Shrimati Banjula Dastidar and another**_ (2007 KHC 3460).
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For the above reasons, this Court finds no ground to interfere with the judgment and decree passed by the lower appellate court. The contentions raised by the appellant are without merits and the appeal is only to be dismissed. I do so confirming the judgment and decree of the lower appellate court. There will be no order to costs.
Sd/-
**P.BHAVADASAN JUDGE**
smp
// True Copy // P.A. to Judge.
