Sumathikutty and others v. Balakrishnan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 8TH DAY OF OCTOBER 2012/16TH ASWINA 1934** **RSA.NO. 1151 OF 2012 ()** **-------------------------------------AS.32/2003 OF FIRST ADDITIONAL DISTRICT COURT, MAVELIKKARA OS.641/1997 MUNSIFF'S COURT, MAVELIKKARA** **APPELLANT(S)/ADDITIONAL RESPONDENTS R2 TO R5/2ND PLAINTIFF & LEGAL HEIRS OF 1[ST] PLAINTIFF :** **-------------------------------------------------------------------------------------------------------** ## **1. SUMATHIKUTTY, AGED 62 YEARS** **W/O.MADHAVAN, VADAKUDUKKETH, UMBERNADU THEKKEKKARA VILLAGE.** **2. SANTHOSH, AGED 39 YEARS** **S/O.MADHAVAN, VADAKUDUKKETH, UMBERNADU THEKKEKKARA VILLAGE.** **3. JAYASREE, AGED 32 YEARS** **D/O.MADHAVAN, VADAKUDUKKETH, UMBERNADU THEKKEKKARA VILLAGE.** ## **4. SHAJI, AGED 35 YEARS** **S/O.MADHAVAN, VADAKUDUKKETH, UMBERNADU THEKKEKKARA VILLAGE.** **BY ADVS.SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN** ## **RESPONDENTS/APPELLANTS/2[ND] DEFENDANTS &** **ADDITIONAL DEFENDANT 3 :** **--------------------------------------------------------------------------** **1. BALAKRISHNAN S/O.KESAVAN, VADAKUDUKKETH, UMBERNADU THEKKEKKARA VILLAGE, ALAPPUZHA DISTRICT PIN-690 107.** ## **R.S.A. No.1151 of 2012** **: 2 :** ## **2. RADHAKRISHNAN** **S/O.KESAVAN, VADAKUDUKKETH, UMBERNADU THEKKEKKARA VILLAGE, ALAPPUZHA DISTRICT PIN-690 107.** ## **3. SHYAMALA, W/O. RADHAKRISHNAN,** **VADAKUDUKKETH, UMBERNADU, THEKKEKKARA VILLAGE, ALAPPUZHA DISTRICT, PIN - 690 107.** ## **BY ADV. SRI.A.SHAFEEK (KAYAMKULAM) (CAVEATOR)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 08-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.1151 of 2012 ==================================== Dated this the 08[th] day of October, 2012** ## **J U D G M E N T** The following substantial questions of law are framed for a decision: (i) Whether in a suit for prescriptive easement, it is necessary to plead actual beginning of its user and its end? (ii) Whether the appellate court has rightly construed the material proposition of facts and law which is necessary for proper disposal of the appeal vis-a-vis Section 15 of the Indian Easements Act (for short, “the Act”)? (iii) Is it proper for the appellate court to reverse the decree of the Munsiff's Court when there is ample evidence before the Court that there is a way in use as an easement, as of right for the past more than 40 years? 2. The Second Appeal arises at the instance of the second plaintiff and the legal heirs of the deceased 1[st] plaintiff who instituted O.S. No.641 of 1997 in the Munsiff's Court, Mavelikkara **R.S.A. No.1151 of 2012** -: 2 :- praying for a decree for declaration of their right of easement by prescription over the plaint C schedule and for injunction against the respondents/defendants interfering with that right. The trial court granted a decree in favour of the plaintiffs holding that width of the plaint C schedule is 160 cms. In appeal at the instance of the defendants (A.S. No.32 of 2003), the learned First Additional District Judge found that plaintiffs have not averred in the plaint the date from which and upto which they used the plaint C schedule, that would disentitle the plaintiffs from getting a declaration as prayed for and consequently the first appellate court reversed the judgment and decree of the trial court. 3. Plaint A schedule property belongs to the plaintiffs as per Exts.A2, gift deed No.528 of 1968 and Ext.A3, sale deed No.1908 of 1996. The plaint B schedule belongs to the defendants and is situate on the west of the plaint A schedule. Plaint C schedule is the disputed pathway described as having length of 75 metres and width of 7 feet starting from the Panchayath road on the extreme west and leading to the plaint A schedule along the southern side of the plaint B schedule. Plaintiffs claimed that themselves and their predecessor-ininterest were using the plaint C schedule for the last forty years as **R.S.A. No.1151 of 2012** -: 3 :- of right, without obstruction, peacefully and openly and thereby acquired a right of easement by prescription over the plaint C schedule. They also alleged that the defendants attempted to obstruct their user of the plaint C schedule. 4. Defendants 1 and 2 contended that the 1[st] defendant has no subsisting right over the plaint B schedule. 22 cents was assigned to the 2[nd] defendant and additional defendants 3 and 4 (in view of that contention they were impleaded). There was a common pathway from the Panchayath road on the western side and leading to the plaint A schedule and to the property of one Raghavan (situated further south of the plaint A, B and C schedules). That pathway was in existence through the southern extremity of the plaint B schedule at a width of two feet (from the plaint B schedule) and two feet from the northern extremity of the property of Raghavan. Thus the said pathway had a total width of four feet. Raghavan purchased one cent from his son, Raju and constructed a road. That road is being used for access to the plaint A schedule as well. According to the defendants the width of that way is 3.5 metres. After formation of that road, nobody is using the old four feet wide way. Additional defendants 3 and 4 also raised similar contentions and denied the **R.S.A. No.1151 of 2012** ## -: 4 :- right claimed by the plaintiffs. 5. The trial court found from Ext.C1 and C1(a) that width of the disputed way is 160 cms. The right claimed by the plaintiffs was upheld and accordingly right of the plaintiffs over the 160 cms wide way was declared. A decree for prohibitory injunction also was granted. 6. In appeal at the instance of the contesting defendants the first appellate court took the view that in the plaint there is no averment as to the date from which and upto which the plaintiffs were using the C schedule. Consequently, the judgment and decree of the trial court were reversed. 7. It is contended by the learned counsel for the appellants that the first appellate court was not right in placing reliance on the decision in **Justiniano Antao v. Bernadette B.Periera** ([2005] 1 SCC 471. According to the learned counsel, that was a case where existence of the way itself was disputed and the fact that absence of sufficient plea and evidence as to the time at which the right commenced was found to be fatal. 8. The learned counsel for the contesting defendants supported the finding of the first appellate court. It is pointed out ## **R.S.A. No.1151 of 2012** ## -: 5 :- by the learned counsel that it is without any material that the trial court has fixed the width of the way as 160 cms. The learned counsel pointed out that at the portion where the disputed way starts the width is only 125 cms and it is taking into account the width of the mud wall also (35 cms) that the trial court has fixed the width as 160 cms. The learned counsel submitted that if a way at a width of 160 cms is provided, it would affect even the trees situated in the southern portion of the plaint B schedule. 9. **Justiniano Antao v. Bernadette B.Periera** (supra) as paragraph 9 of the judgment reveals, was a case where the existence of a pathway was disputed and in that situation, having regard to the other contentions as well the Supreme Court held that the failure to plead date of commencement of right is fatal. It is held time and again that a decision is a precedent for what it actually decides and that its application must depend on the facts and circumstances of each case. In this case that there is a way in existence is not very much in dispute even. According to them the width of the original way was only four feet made up by two feet each from the southern portion of plaint B schedule and northern portion of the property of Raghavan. The further case is that on Raghavan purchasing one cent from his **R.S.A. No.1151 of 2012** -: 6 :- son and forming a new road, the plaintiffs discontinued user of the plaint C schedule. 10. I must notice the case of the plaintiffs that according to them themselves and their predecessor- in-interest were using the disputed way for the last 40 years. What is required to establish a right of easement by prescription is user of the pathway in the manner referred to in Sec.15 of the Easements Act for the statutory period. On the facts and circumstances of this case I am inclined to think that the first appellate court was not right in holding that the failure to mention the starting point of user of plaint C schedule was fatal. 11. The plaintiffs have adduced sufficient evidence to prove user of the disputed way for the statutory period. P.Ws.1 and 2 have given evidence regarding the user. Based on that the trial court accepted the case of plaintiffs that they were using the C schedule for the statutory period as of right, without obstruction, peacefully and openly and thereby acquired a right of easement by prescription. I must also notice that in Ext.A3, sale deed executed in favour of the plaintiffs there is reference to their right of access through the disputed way though the width of the way is not mentioned. There is no reason to reject the evidence ## **R.S.A. No.1151 of 2012** -: 7 :- of P.Ws.1 and 2. 12. Then, what would be the width of the C schedule way? The trial court fixed it as 160 cms. Exhibit A3 relied on by the plaintiffs does not mention the width of the way. Instead the document only says that the way could be used for access to the plaint A schedule. Not even there is mention in Ext.A3 about user of the disputed way for vehicular traffic. Also, no reliable evidence is let in by the plaintiffs to show that the width of the way is 7 feet as they claimed. 13. The trail court fixed 160 cms as the width of the way including the width of the mud wall constructed by the defendants. Having regard to the portion of the trees on the side of the plaint B schedule, the width of the way cannot be taken as 160 cms. The right of access the plaintiffs have, cannot affect the trees in the plaint B schedule. Having regarding to the facts and circumstances and having regard to the views of the learned counsel for the contesting defendants as well, I am inclined to think that a way having width of 145 cms would be sufficient for the use of the plaintiffs. The width of the way is fixed accordingly. 14. It has come in evidence that towards the southern side ## **R.S.A. No.1151 of 2012** ## -: 8 :- of the plant C schedule, Raghavan has constructed a compound wall. Raghavan is not a party to the proceeding. Hence affecting that compound wall, no decree could be passed in this case. Hence I direct that the width of 145 cms stated above shall be taken from the compound wall of Raghavan situated on the further south of the plaint C schedule. 15. The substantial questions of law framed are answered as above. Resultantly, the Second Appeal is allowed in part as under: (a) Judgment and decree of learned First Additional District Judge, Mavelikkara in A.S. No.32 of 2003 are set aside. (b) Judgment and decree of the learned Munsiff, Mavelikkara in O.S. No.641 of 1997 are restored with the following modifications. (i) The width of the plaint C schedule pathway is fixed as 145 cms to be measured from the compound wall of Raghavan situated on the further south of the plaint C schedule. (ii) It is made clear that it will be open to the defendants to construct compound wall leaving the width of 145 cms for the ## **R.S.A. No.1151 of 2012** -: 9 :- C schedule measured as above and without causing any obstruction to the user of the 145 cms wide way by the plaintiffs. (iii) At the place where the Advocate Commissioner has shown existence of survey stones in Ext.C1(a), if the compound wall of Raghavan is not in existence at that portion the width of 145 cms shall be measured from the southern survey stone on the north. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv