IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 465 of 2000(E)
1. KUTTY THANKAMMA
... Petitioner
Vs
1. NEELAKANTAN APPUKUTTAN
... Respondent
For Petitioner :SRI.NAIR AJAY KRISHNAN
For Respondent :SRI.P.SIVARAJ
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :19/02/2009
O R D E R
THOMAS P. JOSEPH, J.
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S.A.No.465 of 2000
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Dated this the 19th day of February, 2009.
JUDGMENT
Parties are referred as plaintiffs and defendant for convenience. The
substantial questions of law raised for a decision are –
(i) Whether the existence of clear cut and demarcated pathway is
necessary for acquisition of easement by prescription under Section 15 of the
Easements Act (for short, “the Act”),
(ii) Whether plaintiffs’ user for over 20 years and existence of pathway
for ingress and egress are sufficient for prescription of the right under Section
15 of the Act.
(iii) Whether it is necessary to demarcate and identify the property
owned by the same person to acquire a right of easement by way of necessity
under Section 13(b) of the Act.
2. Plaint A schedule takes in three items. Facts which are not in
dispute are that plaint A schedule item No.1 belonging to plaintiff No.1 as per
Ext.A1, assignment deed No.1324 of 1977 dated 16.5.1977. Item Nos.2 and 3
of the plaint A schedule belong to plaintiff Nos.2 and 3. A house was
constructed in item No.1 of the plaint A schedule (obviously after its acquisition
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as per Ext.A1. Plaint B schedule is the property belonging to the defendant as
per Ext.B1. That property is situated on the western side of plaint A schedule
property. There is a panchayat road on the western side of the plaint B
schedule. Plaintiffs alleged and claimed that they have been residing in the old
house in plaint A schedule item Nos. 2 and 3 since the last 75 years, thereafter
using the funds of the husband of plaintiff No.1 a house was constructed in item
No.1 of the plaint A schedule after its acquisition as per Ext.A1 and that, since
the last 75 years plaintiffs have been using a pathway having length of 100 feet
and width of four feet which originated from the house in the plaint A schedule,
went along northern side of plaint B schedule towards west and reached the
Panchayat road on the further west. Plaintiffs claimed that they have been
using that pathway without obstruction as of right during the said period of 75
years. They have no other means to access the plaint A schedule. Since
plaint A and B schedules originally belonged to the same person and since they
have no other means of access to the plaint A schedule, they also have a right
of easement by way of necessity. Defendant denied the claim of the
plaintiffs regarding the existence of plaint C schedule and its alleged user as
claimed by the plaintiffs. He claimed that plaint B schedule was originally a
paddy field and after he purchased it as per Ext.B1, he reclaimed it and started
betel leaves cultivation. Plaintiffs are under the impression that plaint B
schedule takes in puramboke land and that caused the filing of the suit.
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Defendant claimed that plaintiffs have other means of access to the plaint A
schedule. In the court below, an advocate commissioner (CW1) inspected the
properties originally on 24.1.1993 and submitted Ext.C1 report. Advocate
commissioner reported that he could see a pathway through the middle of the
plaint A schedule items lying east-west towards it north western corner and,
indications of a vague pathway through the northern side of the plaint B
schedule. Advocate commissioner noticed that recently mud was deposited at
that portion. Advocate commissioner further noticed a pond towards the north-
western corner of the plaint A schedule and north-eastern corner of the plaint B
schedule which even at the time of inspection on 24.1.1993 was filled with water.
Advocate commissioner reported that he was not able to find any other means of
access to the plaint A schedule. Same advocate commissioner again
inspected the properties on 7.4.1994 and submitted Ext.C2, report where, there
is reference to two alternate ways – one towards south from plaint A schedule
along the property of one Mohanan and another towards east from plaint A
schedule going across the thodu along the slab and then along the property of
one Pavithran. Advocate commissioner reported that the way towards east
had oldness of about one year and along the property of Pavithran, about
five years. Plaintiff No.1/appellant gave evidence as PW1 and testified to her
case. PW2 claimed to be a native of that locality supported the plaintiffs.
Defendant gave contra evidence as DW1. Learned Munsiff found in favour of
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existence of the disputed pathway and granted relief on the finding that plaintiffs
have prescribed a right of easement by prescription . Defendant carried the
matter in appeal. First appellate court found that existence of the disputed
pathway or its use for the statutory period are not proved by the plaintiffs and
hence, plaintiffs are not entitled to get declaration of easement by way of
prescription. Plaintiffs were non-sued.
3. It is contended by the learned counsel for the plaintiffs that in and
every case, existence of a well found pathway may not be necessary to grant a
declaration regarding the easement by way of prescription and in this case,
there is sufficient evidence to show that the existing pathway was obliterated by
the defendant by depositing mud recently over that portion of the pathway. It is
contended by the learned counsel that existence of alternative pathway having
not proved, first appellate court ought to have concurred with the finding of the
trial court that the plaintiffs were using the disputed pathway for the statutory
period. It is also contended that at any rate, plaintiffs are entitled to get a
pathway as an easement by way of necessity under Section 13(b) of the Act.
4. To claim relief on the strength of easement by way of prescription,
it must be shown that the person claiming it has been using a defined pathway
for the statutory period of 20 years as of right, peaceably, continuously, openly
and without obstruction. In this case it is true that PWs 1 and 2 gave evidence
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in support of the existence of the pathway and its user for the statutory period.
CW1 also stated about the existence of the disputed pathway as reported in
Ext.C1. True, he found the existence of the pathway through plaint A and B
schedule properties and indications of a pathway through the B schedule with
mud recently deposited at that place. Ext.A1, which is the only document of
title produced by the plaintiffs is in respect of the plaint A schedule item No.1
belonging to plaintiff No.1 and that is of the year 1977. Even as admitted by the
plaintiffs, a house was constructed in that property only after 1977 whereas the
suit is filed in the year 1993. The contention is that there was a thatched house
in item Nos.2 and 3 of the plaint A schedule where the plaintiffs were residing
with family. Learned counsel invited my attention to Ext.C1 where it is stated
that there was a thatched shed in plaint schedule item Nos.2 and 3 where the
advocate commissioner found a burning lamp. Plaintiffs who claimed that they
were residing in the thatched shed in item Nos.2 and 3 of the plaint A schedule
even prior to 1977 did not produce the title deeds in respect of item Nos.2 and 3
in any of the courts below nor in this Court. The non-production of the title deeds
in respect item Nos.2 and 3 to prove that there was a house, be it a thatched
shed, even prior to 1977 is material. When the plaintiffs could have produced
those title deeds or other documentary evidences to prove their residence in
item Nos.2 and 3 at any time prior to 1977, they attempted to prove the same
through the oral evidence of PWs 1 and 2. PW1 has naturally spoken in
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support of her case. She stated about residence in item Nos.2 and 3 of the
plaint A schedule for 75 years, but PW2 stated about residence for 50 years.
Suffice to say, there is no acceptable evidence to show that plaintiffs were
residing in plaint A schedule prior to 1977 so as to prescribe a right of easement
under Section 15 of the Act by user for a period of 20 years before the institution
of the suit.
5. The existence of a pathway is also not satisfactorily proved.
According to the defendant, plaint B schedule was a paddy field and he
reclaimed it after its acquisition. True, in Ext.B1, the nature of plaint B schedule
is stated as `tharanilam and nilamvirivu’. That description proved that B
schedule was not a `purayidom’ as Ext.A1 describes the plaint A schedule items.
The description in Ext.B1 corroborated the version of DW1 that it was a paddy
field. It has been consistently held by this Court that user of paddy field will not
confer any right by way of easement of prescription since in this country it is
usual for people to walk along unclosed paddy filed but that cannot be treated
as a user as of right.
6. The advocate commissioner has also noticed a pond towards the
north-western portion of plaint A schedule and north-eastern portion of plaint B
schedule. According to the defendant, during the rainy season the pond is
flooded with water and it overflows into the surrounding places and hence no
one could walk along that place during that season. That also corroborated the
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version of the defendant that there was no such way in existence and plaint B
schedule was a paddy field.
7. It is pertinent to note that though the advocate commissioner
referred to the existence of a pathway, he has not reported its length or width
as against the claim of the plaintiffs that the pathway has a length of 100 feet
and width of four feet. With such a vague description, no relief of declaration
can be granted.
8. So far as the claim of easement by way of necessity is concerned,
though the plaintiffs pleaded that plaint A and B schedules originally belonged
to the same person, that was denied by the defendant in the written statement.
No evidence is produced by the plaintiffs to prove that plaint A and B schedules
originally belonged to the same person and by transfer, plaintiffs and defendant
came into the ownership and possession of the respective tenements. When
plaintiff No.1 was questioned about that, she was not able to give any
satisfactory evidence regarding the ownership of the two tenements with the
same person before the plaintiffs and defendant got title and possession.
9. When a plea of right of easement by way of prescription is raised,
it is not necessary to go into the question of alternative ways and so far as the
claim of easement by way of necessity is concerned, in the absence of any
evidence regarding ownership of the two tenements with the same person at
some earlier point of time, question whether there is any other means of access
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to the plaintiffs does not assume importance. At the same time, I also note that
the advocate commissioner has referred to some alternative ways. According to
the learned counsel for plaintiffs those alternative ways were created after the
advocate commissioner inspected the properties on 24.1.1993. It is difficult to
think that for the purpose of this case, defendant was able to create those ways
even along the properties of others. I am not inclined to accept that contention.
10. First appellate court has considered the entire evidence and non-
suited the plaintiffs. There is no reason to interfere with that finding of fact.
Appeal fails. It is dismissed. Parties shall bear their respective
cost.
C.M.P.No.1320 of 2000 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
cks
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Thomas P.Joseph, J.
S.A.No.465 of 2000
JUDGMENT
19th February, 2009