T.B. Unnikrishnan and Sudheena v. Abraham

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **MONDAY, THE 7TH MARCH 2011 / 16TH PHALGUNA 1932** **SA.No. 868 of 1995(C)** **------------------------------** **AS.2/1993 OF PRINCIPAL SUB COURT, N. PARAVUR OS.214/1988 OF MUNSIFF COURT, PARAVUR** **....................** ## **APPELLANTS-RESPONDENTS-DEFENDANTS:** **-------------------------------------------------------------------** **1. T.B. UNNIKRISHNAN, S/O.BALAKRISHNAN, THARAMEL, PARAVUR VILLAGE, PARAVOOTHARA MURI.** **2. SUDHEENA, W/O.UNNIKRISHNAN, -DO- -DO-.** - **BY ADV. SMT.JEENA JOSEPH, SRI.G.D.PANICKER.** ## **RESPONDENT-APPELLANT-PLAINTIFF:** **---------------------------------------------------------** ## **ABRAHAM, S/O.OUSEPH, PATHIKULANGARA, P.O. PARAVOOTHARA MURI, PARAVOOR VILLAGE, PARAVUR TALUK.** **BY ADV. SRI.T.K.VENUGOPALAN, SRI.V.DEVAN,** **SRI.B.JAYASANKAR, SRI.VPK.PANICKER.** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/02/2011, ALONG WITH SA NO. 869 OF 1995 ,THE COURT ON 07/03/2011 DELIVERED THE FOLLOWING:** **rs** ## **SA.No. 868 of 1995(C)** **ORDER ON C.M.P. NO.2065/1995 IN S.A. NO.868/1995** ## **DISMISSED** **07/03/2011. SD/- P.BHAVADASAN, JUDGE** **//TRUE COPY//** **P.S. TO JUDGE** **rs** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. Nos. 868 & 869 of 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of March, 2011. ## **JUDGMENT** Two suits, namely, O.S.214 of 1988, which was a suit for permanent prohibitory injunction and O.S.474 of 1988, which was suit for declaration and consequential injunction, filed by the same plaintiff against the same defendants were jointly tried and disposed of by a common judgment by the Munsiff's Court, Paravur. The trial court dismissed the suits. The plaintiff carried the matter in appeal as A.S.2 of 1993 and A.S.64 of 1992 as against the judgment in O.S.474 of 1988. The lower appellate court has chosen to reverse the findings of the trial court and decreed the suits as prayed for. That brings the defendants before this court. 2. The parties and facts are hereinafter referred to as they are available before the trial court. 2 S.A..868 & 869/1995. 3. Both the suits relate to the same subject matter and hence it is sufficient to refer to the facts in one of the cases. According to the plaintiff plaint A schedule property belonged to his brother and the plaintiff was looking after the same. B schedule is the property of the defendants. According to the plaintiff, a way shown as C schedule runs through B schedule property and that provides the means of access to plaint A schedule property. The plaintiff claims prescriptive right of easement to use C schedule pathway. Contending that the defendants are preventing the plaintiff from making use of C schedule pathway, the suits were laid. 4. The defendants resisted the suits. They denied the existence of the way as alleged in the plaint and pointed out that the plaintiff had other means of access to his property. According to them, the plaintiff had no manner of right to use any portion of their property as a way and the claim made is without any basis. 3 S.A..868 & 869/1995. 5. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Ext. A1 from the side of the plaintiff. The defendants had D.W.1 examined and Exts.B1 to B6 marked. Exts.C1 and C1(a) are the commission report and plan. Exts.X1 and X1(a) are third party exhibits. On an appreciation of the evidence in the case, the trial court came to the following conclusions: i) The plaintiff had no authority to institute the suits. ii) The plaintiff had not been able to establish the existence of the way and its use as alleged in the plaint. On the basis of the above findings, the suits were dismissed. 6. In appeal, the lower appellate court found that the suit was maintainable and also that the plaintiff had succeeded in establishing the claim put forward before the trial court. Accordingly, the decrees were granted in his favour. S.A..868 & 869/1995. 4 7. Notice is seen issued on the following question of law: _“Whether the respondent has succeeded in proving all the ingredients of easement by prescription over the pathway in the absence of cogent evidence in that respect.”_ 8. Learned counsel appearing for the appellant in these appeals pointed out that the finding of the lower appellate court that the suits are maintainable is erroneous in law. The plaintiff had neither produced any power of attorney nor any other document to show that he had the authority to institute the suit. Admittedly the property belonged to the brother of the plaintiff, who is no more, and he had not obtained any authority from the legal heirs of his brother to institute the suit. According to the learned counsel Ext.A1 is insufficient to give authority to the plaintiff to institute the suit. It was also contended that even assuming that the suit is maintainable, the ingredients necessary to attract prescriptive right of easement have not been established by the plaintiff. Learned counsel drew the S.A..868 & 869/1995. 5 attention of this court to the fact that the claim made is not to the way found by the Commissioner, but to another way, which the plaintiff alleges existed earlier. Apart from the fact that there is no evidence in that regard, learned counsel also pointed out that there is no independent evidence at all to show that the claim made by the plaintiff is true. These aspects, according to learned counsel, have not been noticed by the lower appellate court and that has resulted in erroneous decrees being passed. 9. Per contra, learned counsel appearing for the respondents pointed out that it is not necessary that there should be a formal power of attorney or letter of authority for the plaintiff to institute the suit. It is sufficient if it is shown that the plaintiff had authority, may be even oral instruction to institute the suit on behalf of the persons, who are entitled to the property. Counsel also contends that the averment in the plaint is to the effect that the plaintiff has been looking after the property and therefore he is entitled to protect the property. In support of his contention learned S.A..868 & 869/1995. 6 counsel relied on the decisions reported in **Narayanan Nair v. John Kurien** (1988(1) K.L.T. 673), **Mangayarkarasi v. Suseela** (AIR 2000 Madras 266), **Kailash Singh v. Hiralal Dey** (AIR 1994 Gauhati 12) and **Karam Singh v. Ram Rachhpal Singh** (AIR 1977 Himachal Pradesh 28). Regarding the claim of prescriptive right of easement, learned counsel relying on a passage from Katiar on Easements pointed out that a slight deviation in the user of the way does not annihilate the right, which had accrued to the plaintiff by passage of time. Learned counsel went on to point out that the lower appellate court has considered the matter in considerable detail and there are no grounds made out to interfere with the judgment and decree of the lower appellate court. At any rate, according to learned counsel, no substantial question of law arises for consideration. 10. For the sake of these appeals, one may assume that the suits are maintainable. Even though there is some substance in what the defendants contended, the fact remains that at least at the later point of time Ext.A1 7 S.A..868 & 869/1995. has been produced which shows that the legal heirs of late Joseph had given authority to the plaintiff to conduct the suit on their behalf. In the light of decision reported in **Narayanan Nair's case** (supra), this aspect does not deserve further consideration. 11. More serious is the question regarding the claim made in the plaint regarding prescriptive right of easement. As rightly pointed out by the learned counsel for the appellants, the claim is made not with regard to the way noticed by the commissioner in Ext.C1(a) plan. It is no doubt true that the commissioner does make mention of a way running from the by-lane on the southern side of the property of the plaintiff and defendants, passing through the property of the defendants and leading to the property of the plaintiff on the northern side. But that passes along the eastern side of the house put up by the defendants. The claim made in the plaint is regarding a way, which is said to have existed along the western boundary of the property owned by the defendants. The commission report has S.A..868 & 869/1995. 8 specifically stated that there are no remnants of such a way seen during his visit of the site. 12. Merely because a way as shown by the commissioner may exist, it does not lead to the inference that a way as claimed in the plaint did exist. In the decision reported in **Badariya Madrassa Committee v. Antony Robert** (2006 (2) K.L.T.636) the ingredients necessary to attract Section 15 of the Easements Act was considered. It was held as follows: _“Apart from stating that the way has been used by prescription there is no specific pleading involving all the seven ingredients of S.15 of the Act ie., (1) There must be pre-existing easement which must have been enjoyed by the dominant owner; (2) the enjoyment must have been peaceable; (3) the enjoyment must have been as an easement; (4) The enjoyment must have been as of right; (5) the right must have been enjoyed openly; (6) the enjoyment must have been for a period of twenty years and (7) the enjoyment for 20 years must have been without interruption.”_ S.A..868 & 869/1995. 9 13. It is well settled that the claim of easement is a precarious one and the burden is heavy on the person, who claims such a right. It is for him to establish that there does exist a way as alleged by him and that he has the right to use the same satisfying the statutory requirements. Merely because the plaintiff may not have another means of access to his property, that does not enable him to claim prescriptive right of easement to a pathway running through the property of the defendants. Even if there is a pathway running through the property of the defendants, unless and until the plaintiff establishes that he has a right to use the same by satisfying the necessary ingredients, he will not be entitled to the relief. 14. In the plaint, C schedule describes as a way running along the western boundary of the property owned and possessed by the defendants. The case of the plaintiff is that while the defendants were putting up construction in their property and when they tried to block the pathway that is running along the western side of the property of the S.A..868 & 869/1995. 10 plaintiff and others, the kudikidappukars in the property of the plaintiff objected to the conduct of the defendants. The further case is that the defendants allowed them to make use of a pathway running on the eastern side, which is now located by the Commissioner. According to the plaintiff, after the constructions were put up when the plaintiff and others continued to use the pathway located by the commissioner, the defendants objected and that necessitated the suits. 15. At the risk of repetition, one may notice that there is no remnants noticed by the commissioner at all regarding the existence of a way as alleged in the plaint and as shown as C schedule to the plaint. It is significant to notice that the plaint does not specify the two termini of the way alleged in the plaint. Of course, a slight deviation in the use of the way may not by itself be fatal, but that does not absolve the plaintiff from establishing that there was a way shown as C schedule to the plaint. S.A..868 & 869/1995. 11 16. A perusal of the commission report shows the improbability of the existence of the way as alleged in the plaint and as shown as C schedule. According to the plaintiff, the way alleged in the plaint and which was being used by him and his kudikidappukars is the way existing on the northern side of the defendants' property. Immediately on the northern side of the defendants' property, that is on the south-western corner of plaintiff's property there is a pond. Apart from that, there is no continuation of the old pathway in the plaintiff's property, which leads to the house of the kudikidappukars and others. 17. Of course, the commissioner does make mention of the fact that a way is shown in the rough sketch and there is an opening on the northern boundary of the defendants' property, which gives entry to the plaintiff's property. But unfortunately, that is not the way claimed by the plaintiff. The commission report indicates that the building of the defendants situates only about 6 or 7 feet away from the western boundary of their property. At the S.A..868 & 869/1995. 12 risk of repetition, one may notice that the commissioner was unable to find remnants of the way claimed by the plaintiff in the plaint and shown as C schedule. 18. There was also a contention on behalf of the appellants that the property of the second defendant, which is situate on the north-western corner of the defendants' property was not scheduled. But the commission report shows that the property belonging to the defendants lie as a compact plot and therefore this contention may not have much substance. 19. It is rather strange to notice that except for the interested testimony of the plaintiff, there is no independent evidence to establish the claim made by the plaintiff. One may recall here that the definite stand of the plaintiff was that he and the kudikidappukars in the property and others were using the pathway shown as C schedule in the plaint. However, the plaintiff did not feel it necessary to examine any one of them to establish his claim. The lower appellate court seems to have been greatly impressed by S.A..868 & 869/1995. 13 the fact that going by the commission report the plaintiff has no other means of access to his property. Even assuming it to be true, that by itself is insufficient to grant relief, unless he is able to show that he is entitled to use the way as claimed by way of prescriptive right of easement. 20. It has already been noticed that the plaintiff has miserably failed to establish that there was a way as alleged in the plaint having a width of 5 links, in respect of which a decree has been granted by the lower appellate court. Again, there is absolutely no independent evidence to show that there was such a way and that the plaintiff and others have been using that way to gain access to the lane situate on the southern side of the defendants' property. 21. In the above circumstances, the judgment and decree of the lower appellate court cannot be sustained. The trial court has appreciated the evidence in the proper perspective and has come to the right conclusion that the plaintiff has miserably failed to establish the claim made by him. The reasons given by the lower appellate court for 14 S.A..868 & 869/1995. reversing the judgment and decree are unsustainable on facts and in law. The finding seems to be perverse, unwarranted and unjustified going by the evidence on record. There has been a total mis-appreciation of the evidence on record and that has resulted in miscarriage of justice warranting interference under Section 100 of the Code of Civil Procedure. In the result, these appeals are allowed, the impugned judgment and decree are set aside and the judgment and decree of the trial court are restored. **P. BHAVADASAN, JUDGE** sb.