Valsamma Alex v. K.M. Lillikutty and Shri K.P. Alexander

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 26TH DAY OF JUNE 2012/5TH ASHADHA 1934** **SA.NO. 629 OF 2001 ( )** **------------------------------AS.42/1998 OF SUB COURT, THIRUVALLA OS.288/1994 OF MUNSIFF COURT, THIRUVALLA** ## **APPELLANT/APPELLANT/RESPONDENT:** **----------------------------------------------------------** **SMT.VALSAMMA ALEX, W/O. K.P.ALEXANDER, KANDATHIPARAMBILAYA THYPADAVIL HOUSE, THUKALASSERI MURI, THIRUVALLA VILLAGE, FROM ERUMEDA HOUSE, NELLIMOODU, CHENGAMNNOOR MURI, KUNNAMTHANAM.** ## **BY ADV. SRI.JOHN K.GEORGE** ## **RESPONDENTS/RESPONDENTS/PLAINTIFF & 2[ND] DEFENDANT:** **-----------------------------------------------------------------------------------------** **1. SMT.K.M. LILLIKUTTY, W/O.M.V. VARGHESE, H. NO.353/11, J.P. NAGAR HOUSING COLONY, MUTHEER MURI, THIRUVALLA VILLAGE.** ## **2. SHRI K.P. ALEXANDER, P.O. BOX NO.4090, 13041, SAFAT, KUWAIT.** **BY ADV. SRI.P.R.VENKETESH BY ADV. SRI.R.SANTHOSH BABU** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== S.A. No.629 of 2001 ==================================== Dated this the 26[th] day of June, 2012** ## **J U D G M E N T** The Second Appeal arises from the judgment and decree of learned Munsiff, Thiruvalla in O.S. No.288 of 1994, confirmed by the learned Sub Judge, Thiruvalla in A.S. No.42 of 1998. 2. First respondent-plaintiff, it is not very much in dispute is the owner in possession of plaint schedule item No.1. She claimed a right of way through plaint schedule item No.2 described as way having width of 5½ feet, originating from the Municipal road on the north, proceeding towards south through the property of appellant and reaching item No.1. In paragraph 4 of the plaint first respondent claimed that Item No.2 is in existence for more than 50 years and is being enjoyed by the first respondent and her predecessor-in-interest, openly, as of right and without obstruction. Alleging that appellant and the second respondent, her husband are attempting to obstruct user of item No.2, first respondent filed the suit for a decree for prohibitory injunction. 3. Appellant and second respondent denied the existence of item No.2 and claimed that the entire property belonging to ## **R.S.A. No.629 of 2001** -: 2 :- them lie contiguous. They claimed that they have put up their residential building towards southern portion of the suit property. A further contention appellant and second respondent raised is that after creating a foot mark through their property first respondent clandestinely filed the suit claiming that there is a pathway having width of 5½ feet. 4. Trial court found that item No.2, the way is in existence as reported by the Advocate Commissioner in Exts.C1 and C1(a). Trial court also took the view with reference to Exts.B1 and B2, assignment deeds in favour of appellants and second respondent that item No.2 does not form part of property of appellant and the second respondent. In that view first respondent was given a decree as prayed for. That judgment and decree were confirmed by the first appellate court. Hence this Second Appeal. 5. The following substantial question of law is framed for a decision: Whether judgment of the courts below are vitiated by errors of law for the reason that there are no sufficient pleadings in the plaint with regard to **R.S.A. No.629 of 2001** ## -: 3 :- the nature of the property through which the right of way is set up by the plaintiff? 6. Learned counsel for appellant contended that there is no specific plea as to the nature of right first respondent is claiming over item No.2. It is contended that finding of the trial and first appellate courts that a way as reported by the Advocate Commissioner in Ext.C1 existed is not correct. It is further contended that finding of the trial and first appellate courts that item No.2 does not form part of property of the appellant and second respondent is without any basis. Learned counsel has invited my attention to Exts.B1 and B3. 7. Learned counsel for second respondent has supported the arguments advanced by the learned counsel for appellant. 8. The learned counsel for first respondent would contend that there are sufficient pleadings in the plaint to show the nature of right first respondent is claiming over item No.2. It is contended that nowhere in the plaint, first respondent has admitted that item No.2 belongs to or is part of property belonging to the appellant and the second respondent. It is pointed out by the learned counsel that appellant and second ## **R.S.A. No.629 of 2001** -: 4 :- respondent has provided a compound wall on the side of the disputed way keeping alive item No.2 as reported by the Commissioner. 9. I have gone through the averments in the plaint and find that in paragraph 4 what is stated is that item No.2 is in existence for more than 50 years and is enjoyed by the first respondent and her predecessor-in-interest, openly, as of right and without any obstruction. Other ingredients which constitute a right of easement by prescription (if that is the plea of the first respondent) are absent in the plaint. Nor is there any specific averment in the plaint that item No.2 does not belong to or form part of property belonging to the appellant and the second respondent. In other words the plaint averments are vague as to what exactly is the nature of right first respondent is claiming over item No.2. I must notice that first respondent has no case that item No.2 belongs to the first respondent or forms part of property of the appellant and second respondent. In that situation it was necessary for first respondent to state in specific terms as to what exactly is the right first respondent claims over item No.2. While dealing with a case of easement by prescription, this Court in **Ibrahimkutty v. Abdul** ## **R.S.A. No.629 of 2001** ## -: 5 :- **Rahuman Kunju** (1992 [2] KLT 775) has held that easement is a precarious and special right affecting the title of the servient owner and hence it must be specifically pleaded and proved. It is relevant to note from that decision that in the absence of specific plea, an oral request made by the plaintiff was accepted and the case was remitted to the trial court for incorporating necessary plea. 10. Learned Munsiff took the view that item No.2 does not form part of property belonging to the appellant and the second respondent. That appears to be on the basis of extent of property acquired by the appellant and second respondent as per Exts.B1 and B3. 11. I have gone through Exts.B1 and B3. Exhibit B1 is the assignment deed, I am told, concerning the eastern portion of property belonging to the appellant and second respondent and is in respect of 3.64 Ares (9 cents). Exhibit B3 concerns 11 cents towards the western portion. It is relevant to note that in Ext.B3, the 11 cents is described as property excluding the 9 cents towards east (covered by Ext.B1). I also find from Exts.B1 and B3 that the property description does not mention item No.2 as a boundary of the said item. In the above circumstances ## **R.S.A. No.629 of 2001** ## -: 6 :- merely based on a difference in extent if any covered by Exts.B1 and B3 and Ext.C1(a) which is a rough sketch the trial and first appellate courts could not have entered a finding that item No.2 does not form part of property belonging to the appellant and the second respondent as per Exts.B1 and B3. Materials on record are not sufficient to say in this appeal whether item No.2 forms part of property belonging to appellant and second respondent as per Exts.B1 and B3 or not. That is a matter which has to be ascertained with reference to the measurement of properties covered by Exts.B1 and B3 and the descriptions in Ext.B3 and other relevant factors. 12. It is pointed out by learned counsel for first respondent that except item No.2, first respondent has no other means of access to plaint schedule item No.1. Exhibit C1 does not speak of any alternative access for the first respondent to reach item No.1 though learned counsel for appellant and second respondent contended that evidence of P.W2 would show that first respondent has an alternative way to reach item No.1. That is a matter which the trial court has to decide having reference to the nature of the plea first respondent may incorporate as regards item No.2 and how the existence of an alternative way will affect ## **R.S.A. No.629 of 2001** ## -: 7 :- the claim made by the first respondent. 13. Having regard to the circumstances stated, with the plea that is now available in the plaint judgment and decree of the courts below cannot be sustained. 14. The substantial question of law framed is answered accordingly. Resultantly, the Second Appeal is allowed by way remand as follows: (i) Judgment and decree of learned Munsiff, Thiruvalla in O.S. No.288 of 1994 as confirmed by the learned Sub Judge, Thiruvalla in A.S. No.42 of 1998 are set aside. (ii) O.S. No.288 of 1994 is remitted to the court of learned Munsiff, Thiruvalla for fresh decision after giving opportunity to the parties to amend their pleadings if they are so advised. (iii) Parties or any of them will get opportunity to take out a survey commission for **R.S.A. No.629 of 2001** ## -: 8 :- measurement of the properties to ascertain whether plaint schedule item No.2 forms part of property of appellant and second respondent. (iv) Parties shall also get opportunity to adduce further evidence if any required. (v) Based on the evidence/further evidence that may be let in and the amended pleadings trial court shall decide whether first respondent has any right of access through plaint schedule item No.2. (vi) Parties are directed to maintain the present condition of item No.2 as described by the Advocate Commissioner in Ext.C1(a) until the trial court disposes of the suit. (vii) It is made clear that it will be open to the first respondent and those under her to make use of item No.2, way for access from the municipal road on the north to reach plaint item No.1 in the manner ## **R.S.A. No.629 of 2001** -: 9 :- item No.2 now permits. (viii) Parties shall bear their respective costs. (ix) Parties shall appear before the learned Munsiff, Thiruvalla on 25.07.2012. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv