Vincy v. Shanthy Jose and Chacko

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **WEDNESDAY, THE 30TH DAY OF JULY 2014/8TH SRAVANA, 1936** ## **RSA.No. 85 of 2013** **---------------------AS NO. 17/2008 OF SUB COURT, MUVATTUPUZHA DATED 07-09-2012 OS NO. 182/2006 OF MUNSIFF COURT,MUVATTUPUZHA DATED 14-01-2008** **........** ## **APPELLANT/2ND APPELLANT/2ND DEFENDANT:** **-------------------------------------------------------------------------** **VINCY,AGED 52 YEARS, S/O. JOSE, NEDUNGATTU HOUSE, THAZHAVAMKUNNU KARA, KALLOORKKADU VILLAGE.** **BY ADVS.SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** **--------------------------------------------------------------------** ## **1. SHANTHY JOSE, AGED 42 YEARS,** **W/O. JOSE, RESISING AT KOOTTALA HOUSE, PERAMANGALAM VILLAGE, ENANALLOOR KARA, PIN-686 673.** ## **2. CHACKO, AGED 72 YEARS,** **S/O. CHACKO, RESIDING AT VILAPLACKAL HOUSE, THAZHUVAMKUNNU KARA, KALLOORKKADU VILLAGE, PIN - -686 668.** ## **R1 & R2 BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 85 of 2013 - - - - - - - - - - - - - - - - - - - - - - Dated this the 30[th] day of July, 2014. ## **JUDGMENT** The second defendant in O.S. 182 of 2006 who was fortunate enough to get a decree in her favour, though strictly speaking she is not entitled to such a decree, has come up in appeal against that portion of the decree disallowing her to take vehicles through the pathway in question. 2. The facts absolutely necessary for the disposal of this appeal are as follows: The first plaintiff acquired the plaint schedule property as per Ext.A1 document. It is lying as a road. It is specifically stated that the property was purchased for access to the other properties of the first plaintiff and her husband. The second plaintiff was also using the plaint schedule property for access to his property. The defendants' property is situated on the northern side of the plaintiffs' property. RSA.85/2013. 2 They have direct access to their property from the Panchayat road on the western side of their property and they have been using it for a long time. The defendants have never taken any vehicle through the plaint schedule property. When the plaintiffs decided to tar the plaint schedule property, the defendants obstructed the same and that resulted in the plaintiffs filing O.S.306 of 2005 which ended in Ext.A3 compromise decree wherein the defendants conceded the right of the plaintiffs to tar the road. After the road being so tarred, the defendants began to stake claims regarding the pathway. That necessitated the suit. 3. The defendants resisted the suit. It is contended by them that the plaintiffs did not have exclusive right to the suit property. They disputed that it is a private pathway. According to the defendants, they have been using the plaint schedule property as pathway from 1983 onwards and taking vehicles also and they had acquired prescriptive right of easement to use the pathway. On the basis of these RSA.85/2013. 3 contentions, they prayed for a dismissal of the suit. 4. On the above pleadings issues were raised and the parties went to trial. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Exts.A1 to A7 from the side of the plaintiffs. Defendants examined D.W.1. Exts.C1 series and C2 series are the commission reports and plans. The trial court after appreciating the evidence came to the conclusion that the defendants have miserably failed to prove the plea of prescriptive right of easement. However based on the concession given by the plaintiffs, the defendants were allowed to walk through the plaint schedule property. The defendants challenged the same in appeal as A.S.17 of 2008 and the lower appellate court, after independently appreciating the evidence, found no grounds to interfere with the judgment and decree of the trial court and dismissed the appeal. Hence the Second Appeal. 5. Notice was issued on the following substantial questions of law: RSA.85/2013. 4 “i) In view of the filing of earlier suit O.S. 306 of 2005, leading to the compromise decree evidenced by Annexures A3 to A6, are not plaintiffs estopped from filing the present suit, against the defendants for reliefs which could and should have been sought for in the said suit? ii) Whether in the suit jointly filed by plaintiffs 1 and 2, the courts below are justified in restraining the defendants from using the plaint schedule road admittedly used by the 2[nd] plaintiff and also by the defendants, as per Annexure A3 compromise decree? iii) Whether the courts below are right in holding that the defendants have no right to take motor vehicle through the plaint schedule road? iv) Whether the courts below went wrong in not accepting the plea of easement right, made by the defendants which is in tone with Annexure A3 compromise decree?” 6. Learned counsel for the appellant contended that the courts below were not justified in declining to grant reliefs to the defendants based on Ext.A3 compromise entered into between the parties in an earlier suit namely O.S.306 of 2005. Contending for the position that the compromise decree in the RSA.85/2013. 5 said suit cannot attract the principle of res judicata, reliance was placed on the decisions reported in Sankaran Nadar v. Govindan Nair (1960 K.L.T. 579), Forward Construction Compny v. Prabhat Mandal (AIR 1986 SC 391) and State of Punjab v. M/s. Surinder Kumar and Co. (AIR 1997 SC 809). It is contended by the learned counsel for the appellants that it is not disputed that the defendants are making use of the way and if that be so, considering the width of the pathway and the principle being a way can be used for the purpose for which it is capable of being used, the defendants are entitled to use the plaint schedule property to take their vehicles. This crucial aspect has been omitted to be noticed by the court below and that resulted in a wrong decree being passed. It is therefore contended that the decree cannot be sustained. 7. Learned counsel for the respondents on the other hand pointed out that independent of Ext.A3 document, the compromise entered into between the parties in the earlier suit, in the present suit, both the courts below found that RSA.85/2013. 6 there is want of pleading regarding the prescriptive right of easement claimed by the defendants and so also evidence in that regard. There is absolutely no evidence to show that the defendants have been using the pathway as claimed by them. Both the courts below have appreciated the evidence in considerable detail and came to an identical conclusion that there is want of evidence to establish prescriptive right claimed by the defendants. That being a question of fact, interference under Section 100 of the Code is not called for. 8. As rightly pointed out by the learned counsel for the respondents, it is not a case where the principle of res judicata applies to the facts of the case. Even assuming that Ext.A3 does not operate as res judicata, the question that arises for consideration is whether the defendants have proved their claim of prescriptive right of easement over plaint schedule property. 9. In the light of the fact that the defendants claimed prescriptive right of easement, it follows that title is RSA.85/2013. 7 admitted. That there was an earlier suit between the parties in respect of the plaint schedule property also cannot be disputed and that is evidenced by Ext.A3 decree. That was a compromise decree passed in O.S.306 of 2005. The dispute then was regarding the right of the plaintiff to tar the plaint schedule property to which obstruction was created by the present defendants. That suit ended in a compromise decree, i.e., Ext.A3. It is significant to notice that the defendants conceded the right of the plaintiffs to tar the road and it is also significant to notice that no right is seen reserved in favour of the defendants. Since there is no mention regarding the right of the defendants to use the pathway in terms of the compromise decree, as rightly pointed out by the learned counsel for the respondents, the defendants obviously had no manner of right to use the pathway. If in fact they had any right, that should have found a place in Ext.A3 decree. At any rate, learned counsel for the respondents is justified in his submission that the appellants are estopped from now RSA.85/2013. 8 claiming right over the pathway. 10. Whatever that be, apart from the above fact, on the evidence available in this case also, the courts below have come to the conclusion that there is absolute want of evidence to show that the defendants have acquired a right of prescriptive right of easement to use the plaint schedule property. From the sketch which is appended to the decree, it could be seen that the defendants have direct access from the northern side to the outside world. It is also admitted by the defendants that the said road on the northern side had been in existence for a long time. Therefore, it is quite improbable that the defendants would have used the way on the southern side which is the plaint schedule property. 11. Both the courts below found that there was also dearth of pleadings with regard to the prescriptive right of easement. The first defendant was examined as D.W.1. It is no doubt true that he speaks about his claim. But there is no independent evidence to show that the defendants have been RSA.85/2013. 9 using the pathway for vehicular traffic as claimed by them for 20 years in order to get benefit under Section 15 of the Indian Easements Act. 12. One cannot omit to notice that there is no mention in Ext.A3 regarding the right of the defendants to use the pathway. As already noticed, the pathway involved in O.S.306 of 2005 and the plaint schedule property in the present suit are identical. Even though both the courts below found that the defendants have miserably failed to establish the plea of prescriptive right of easement, the trial court was gracious enough to grant a decree permitting the defendants to walk through the property. 13. Both the courts below found that there is want of evidence to show that the defendants have established prescriptive right of easement. As rightly contended, that is a finding of fact based on appreciation of evidence and there is nothing to show that the findings are perverse or contrary to the evidence on record. RSA.85/2013. 10 The result is that no grounds are made out to interfere with the judgments and decrees of the courts below. This appeal is without merits and it is liable to be dismissed. I do so. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.