Soman Nair and Usha Soman v Manoj Kumar and P.G. Lathika Bhai

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **FRIDAY, THE 20TH DAY OF JUNE 2014/30TH JYAISHTA, 1936** ## **RSA.No. 1508 of 2012 ()** **-----------------------AS.NO. 66/2010 & AS.NO.67/2010 OF DISTRICT COURT, PATHANAMTHITTA ..........................** ## **OS.NO. 294/2007 OF MUNSIFF COURT ,PATHANAMTHITTA** ## **------------------------** ## **APPELLANT(S)/RESPONDENTS/DEFENDANTS :** **----------------------------------------------------------------------** **1. SOMAN NAIR,S/O.NARAYANAN NAIR, RAMACHANAT, KIZHAKKUMPURAM, KONNI THAZAM VILLAGE, PATHANAMTHITTA.** **2. USHA SOMAN, W/O.SOMAN, RAMACHANAT, KIZHAKKUMPURAM, KONNI THAZAM VILLAGE, PATHANAMTHITTA.** **BY ADVS.SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN** ## **RESPONDENT(S)/APPELLANTS/PLAINTIFFS :** **-------------------------------------------------------------------** **1. MANOJ KUMAR, S/O.GANGADHARAN, PUTHENVEETTIL, KIZHAKKUMPURAM, KONNI THAZHAM VILLAGE, PATHANAMTHITTA-691 523** **2. P.G.LATHIKA BHAI, W/O.JAYA PRAKASH,** **PRASANNA BHAVAN, MEZHUVELI, PATHANAMTHITTA,PIN-689 507.** ## **R1 & R2 BY ADV. SRI.A.N.RAJAN BABU** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 1508 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of June, 2014 ## **J U D G M E N T** Aggrieved by the short work done by the lower appellate court, defendants in the suit who craved for a way to their house through the property of the plaintiff, are the appellants. 2. Plaintiffs laid the suit on the ground that the defendants who have no manner of right over the property, are trying to trespass into their property, cut open a pathway and hence they may be restrained by a decree of injunction. 3. Defendants resisted the suit by pointing out that they had a way and in addition to resisting the suit, they preferred a counter claim also seeking a prescriptive right of easement over the way running through the property of the plaintiffs. **R.S.A. No. 1508 of 2012** **-2-** 4. On the basis of the above pleadings, issues were raised and parties went to trial. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts. A1 to A3 from the side of the plaintiffs. The defendants had DW1 examined and had Exts. B1 to B5 marked. Exts. C1 and C2 series were also marked as Commissioners report and plan. 5. The trial court on an appreciation of the evidence came to the conclusion that there does exist a way as alleged by the defendants though varying in width at various places and that on the evidence, it is proved that defendants have been using the pathway as claimed by them. They are entitled to prescriptive right of easement. It was also found that they do not have any other access to the outside world. Consequently, the suit was dismissed and the counter claim was decreed. 6. Plaintiffs carried the matter in appeal. The lower appellate court reversed the finding of the trial court and ## **R.S.A. No. 1508 of 2012** **-3-** decreed the suit and dismissed the counter claim. That brings defendants before this Court. 7. At the time of admission, the following substantial questions of law were formulated: “1. Whether the lower appellate court is justified in repelling the prescriptive right of easement claimed by the appellants herein, in reversal of the finding entered by the trial court ? 2. When the defendants/appellants, in the counter claim, prayed for a declaration of easement by prescription and when the trial court, relying upon the evidence on record, finds that the pathway has been in existence and has been used by the defendants, is the lower appellate court justified in negativing the said finding ? 3. Is the lower appellate court correct in holding that there is no sufficient pleading for sustaining the claim for prescriptive right ?” 8. The learned counsel appearing for the appellants contended that the lower appellate court unlike the trial court has not gone into the merits of the case and has chosen to dispose of the appeals on two short grounds. (1) ## **R.S.A. No. 1508 of 2012** **-4-** accusing the defendants of not having made specific pleadings regarding the ingredients of prescriptive right of easement and (2) they have not specified the date from which they have started using the pathway. 9. Relying on the decision reported in **Justiniano Antao and Others v. Bernadette B. Pereira (SMT)** [(2005) 1 SCC 471], the lower appellate court therefore allowed the appeals as already mentioned. 10. The learned counsel for the appellant pointed out the lower appellate court ought to have seen that reference to the date in the decisions reported in **Justiniano Antao's** case (cited supra) was with reference to the facts of that case and it cannot be treated as general proposition at all. The court below has omitted to note that the definite pleadings of the defendants with regard to the use of way was that they have been using it for a very long time over 30 years and that was the only way available to their property. It is also pointed out by the learned counsel with **R.S.A. No. 1508 of 2012** **-5-** reference to paragraph 3 and 6 of the written statement and paragraph 2 of the counter claim that all the necessary ingredients to attract prescriptive right of easement have been pleaded in the written statement and the counter claim. The learned counsel also drew attention of this Court to the fact that in the written statement as well as in the counter claim the claim is specifically mentioned as prescriptive right of easement to use the way. There could not be better pleadings according to the learned counsel for the appellant. The learned counsel for the appellant also relied on an unreported decision of this Court in S.A.No.993 of 1994 which was disposed of by judgment dated 23.10.2007 wherein this specific question was considered as to whether the date needs to be specified or not. This Court after considering various aspects found that it will be imprudent on the part of the court to insist that the date from which the use commenced should be specifically mentioned in order to succeed. The learned counsel went ## **R.S.A. No. 1508 of 2012** **-6-** on to point out that lower appellate court has erred in law and on facts in decreeing the suit and dismissing the counter claim. 11. Sri. Rajan Babu, the learned counsel appearing for the respondents, based mainly on the decision reported in **Justiniano Antao and Others v. Bernadette B. Pereira (SMT)** [(2005) 1 SCC 471] pointed out that the lower appellate court has only followed the dictum laid down in the said decision and in the said decision, it is mentioned as follows: “In order to establish a right by way of prescription to the detriment of the other party, one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. There should be specific pleadings and categorical evidence in general and specifically that since what date to which date one is using the access for the last 20 years.” If that principle is to be applied, the lower appellate court was justified in its conclusion that since the specific date on ## **R.S.A. No. 1508 of 2012** **-7-** which the user commenced, in the absence of any mention of the date until which continued, the plea of prescriptive right of easement has necessarily to fail. 12. A reading of the decision reported in **Justiniano Antao's** case (cited supra) would reveal that the dictum has to be read in the context of facts of the case. That was a case where the Apex Court found that till 1984, the claimant was using another way and only thereafter the claim over the way through servient tenement was made. A vague assertion had been made in the said case that the pathway has been used for a long time. It was under those circumstances, the Apex Court had occasion to hold as mentioned above. 13. In the case on hand, the definite pleading as could be culled out from the written statement and counter claim is that defendants as well as their predecessors-in-interest have been using the pathway in question for a long time in fact for more than 30 years and this is only means of access ## **R.S.A. No. 1508 of 2012** **-8-** to their property. Except for saying that as an easement, all the other necessary ingredients to the Acts contained Section 15 are also seen pleadings. As regards the absence of word 'easement' it stands cured by the claim made by the defendants to the effect that they are claiming a prescriptive right of easement over the property. 14. It must also be noticed that there was no lack of understanding as to the issue which the parties had to meet when they went for trial. Each party knew the case put forward by the other side and adduced evidence with that in mind. Merely because one or two of the words in the Section are not used has not caused prejudice to either of the parties. 15. The lower appellate court has not considered the issue on merits namely that whether the way exists as alleged by the defendants and if the way exist, whether appellants have established their right to use the same as prescriptive right of easement. As already stated it was on ## **R.S.A. No. 1508 of 2012** **-9-** the findings that there is lack of necessary pleadings and also finding that the dates have not been specified, the appeals were disposed of. Both the findings have no support in law. For the above reasons, this appeal is allowed. The impugned judgment and decree are set aside. The matter is remanded to the lower appellate court for fresh disposal in accordance with law and in the light of what have been stated above. Parties shall appear before the lower appellate court on **17.07.2014** . The lower appellate court may make every endeavour to dispose of the appeal as expeditiously as possible at any rate within a period of two months from the date of appearance of the parties, giving top priority to the appeal. Sd/- **P.BHAVADASAN JUDGE** ds //True Copy// P.A. To Judge