IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 931 of 2000(C)
1. SANKUNNI
... Petitioner
Vs
1. ABDULRAHIMAN
... Respondent
For Petitioner :SRI.K.RAMACHANDRAN
For Respondent :SRI.B.KRISHNA MANI
The Hon'ble MR. Justice P.BHAVADASAN
Dated :03/09/2010
O R D E R
P. BHAVADASAN, J.
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S.A. No. 931 of 2000
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Dated this the 3rd day of September, 2010.
JUDGMENT
The plaintiff in O.S.677 of 1989, who was
non-suited by the courts below is the appellant.
2. The dispute relates to a pathway, which the
plaintiff alleges runs along the southern boundary of the
first defendant’s property. The first defendant has
property on the western side of plaintiff’s property.
Further west is the Peruvalloor-Mattom public road.
According to the plaintiff, the pathway commences from
the said public road, runs through the southern side of
the first defendant’s property and reaches his property.
According to the plaintiff, that pathway is the only means
of access to his property from the outside world. He
claims that the pathway had a width of 3 feet and a
length of 73 feet from the public road to plaint A
schedule property. He claimed that he has got right of
S.A.931/2000. 2
easement by prescription to use the said pathway. It is
also contended that plaint A Schedule property, which is
owned by the plaintiff, B schedule pathway and the
property now owned and possessed by the defendants were
earlier owned by a common owner thereby indicating that
the plaintiff has a claim of easement by necessity also over
the pathway. Claiming that the defendant was trying to
close down the pathway, the plaintiff laid the suit.
3. The first defendant resisted the suit pointing
out that there is no bonafides in the suit and there is no
pathway as alleged by the plaintiff. He had no right in the
property. In fact the plaintiff wanted him to sell the property
to him for the low price offered by him, to which he was not
amenable. Pointing out that there is no pathway as alleged
in existence and also contending that the plaintiff has no
manner of right to use any portion of the property as a
pathway, he prayed for a dismissal of the suit.
S.A.931/2000. 3
4. Second and third defendants, who are the
subsequent assignees from the first defendant, supported
the first defendant.
5. The trial court raised necessary issues for
consideration. The evidence consists of the testimony of
P.W.1 and documents marked as Exts.A1 and A2 from the
side of the plaintiff. The defendants examined D.W.1 and
had Ext. B1 marked. Exts. C1 to C8 are the commission
reports and sketches. On an evaluation of the evidence in
the case, the trial court came to the conclusion that there is
no pathway as alleged in the plaint and the plaintiff had
other means of access to the outside world. Therefore relief
was declined to the plaintiff.
6. In appeal the lower appellate court
independently considered the evidence on record and came
to the same conclusion as the trial court. Accordingly the
appeal was dismissed. The concurrent findings against the
plaintiff are challenged in this appeal.
S.A.931/2000. 4
7. The following questions of law are seen raised
in the Second Appeal:
“A. Were the courts below justified in
mis-appreciating and even ignoring the various
vital facts and datas revealed in the
commissioner’s reports in support of the plaintiff’s
case relating to B schedule way?
B. Did not the courts below err in placing the
entire burden of proof on the plaintiff?
C. Was the court below justified in finding
that prescriptive right can never be acquired over
a ridge in a paddy field?
D. Did not the courts below err in dismissing
the suit?”
8. Learned counsel appearing for the appellant
pointed out that the courts below were not justified in
non-suiting the plaintiff. It was contended that on going
through the commission report, it can be seen that the
pathway as alleged does exist. There is nothing to indicate
that the plaintiff has any other means of access to the
outside world. It was contended that the pathway made
S.A.931/2000. 5
mention of in Ext.B1, of which considerable reliance was
placed by both the courts below is for the inter se use of the
sharers of that deed and does not provide access to the
outside world. It was also pointed out that in the plaint it
was averred that the plaintiff and his predecessors have
been using the way for a long time and they have acquired
prescriptive right of easement to use the same. There is no
denial of this pleading in the plaint in the written statement
filed by the defendants and therefore it can be taken as
admitted. These vital aspects were omitted to be noticed
by the courts below and according to learned counsel the
judgment and decrees are clearly unsustainable both on
facts and in law.
9. Learned counsel appearing for the respondents
on the other hand pointed out that the courts below have
considered all the aspects. It is not correct to say that the
way made mention of in Ext.B1 is for the inter se use of the
sharers under that deed. It provides access to the outside
world. Attention of this court was drawn to Exts.C3 to C8
S.A.931/2000. 6
and it is pointed out that the way made mention of in the
partition deed is the way which gives access to the plaintiff
to the outside world. Learned counsel drew the attention of
this court to the evidence of P.W.1 and it is pointed out that
in fact the plaintiff admits existence of other ways. But he
says that he is not willing to use those ways. It was pointed
out by learned counsel for the respondent that the
ingredients necessary to attract easement by necessity or
easement by prescription are not available in the case on
hand and both the courts below were justified in holding so.
It is significant to notice, according to learned counsel that
the plaintiff started residence in plaint A schedule property
only in 1979 and the suit had been laid in 1989. The
statutory period so as to attract prescriptive right of
easement is therefore not completed. There is no definite
pleading or evidence on record to justify a claim of
easement by necessity also. According to learned counsel,
therefore both the courts below were justified in dismissing
the suit.
S.A.931/2000. 7
10. The courts below have placed considerable
reliance on the commission reports and plans. They have
also relied on the recitals contained in Ext.B1. It is true that
the lower courts have also adverted to the boundaries of the
property owned by the plaintiff which was allotted to him as
per Ext.B1 partition deed. Both the courts below have found
that the western boundary of item No.1 in A schedule to the
partition deed is shown as plaint B schedule, which was a
paddy field and they came to the conclusion that there
could not have been a way as alleged by the plaintiff.
11. One of the main contentions taken by the
appellant is that the pathway made mention of in Ext.B1 is
for the use of the sharers made mention of in Ext.B1 and it
does not provide access to the outside world. B schedule
pathway had a width of 3 feet and a length of 73 feet. As
per the plaint, it runs along the southern side of the first
defendant’s property. The defendant’s property lies on the
western side of the plaintiff’s property and further west is
the road.
S.A.931/2000. 8
12. One of the main contentions taken is that in
paragraphs 4 and 5 of the plaint it is averred that the
plaintiff as well as his predecessors were using plaint B
schedule pathway. It needs to be noticed that the plaintiff
claims both easement by prescription and easement by
necessity. One may at once notice that the pleas are
inconsistent. While one has its statutory origin, the other
has its origin in doctrine of lose grant. It may be possible to
say that the plaintiff can take inconsistent pleas in the
plaint. But at the time of evidence, he has to select one. He
has not done so in the present case. The origin, nature, use
and termination of the two types of easement are totally
different. It is also necessary to notice that nowhere in the
plaint the ingredients necessary to attract easement by
necessity is seen pleaded. In the written statement filed by
the first defendant he has stated that through his property,
which is situate on the northern side of the property
assigned to the second defendant, there was a way running
through its northern side and it continues to exist. That was
S.A.931/2000. 9
the way used by the plaintiff and his brothers and it is
pointed out by the defendants that it is that way made
mention of in Ext.B1 partition deed.
13. The plaintiff places considerable reliance on
Exts.C1 and C2 report and sketch. That report was an ex
parte report and it is true that it mentions about existence of
B schedule pathway. It also mentions about a branch from
that way leading to the well in the compound of the Mosque
situate on the southern side of plaint A schedule property.
Exts. C3 to C8 show the alternate ways from the way made
mention of in Ext.A1, which provides access to the plaintiff
to the outside world. It can be seen from these reports and
plans that a way starts from Mattom-Elavally road on the
western side, runs through the property of the first
defendant on the northern side, goes towards east and
reaches the house of Govindan, who is none other than the
brother of the plaintiff. The way continues through the
property of Govindan and ends on the northern boundary of
the plaintiff’s property. That is shown as ABC. It has 4 feet
S.A.931/2000. 10
width and 51 feet length. The commission report shows that
there is an opening on the northern boundary of the
plaintiff’s property where the way terminates. It is true that
the commission report has stated that there is no way in
continuation thereof. Exts.C3 and C4 also indicate that the
said way leads to the property of Madhavan, yet another
brother of the plaintiff, who got the properties under Ext.B1.
It proceeds further and reaches the property of Pandiyarth
Mohanan.
14. In Exts. C5 and C6 survey plans, alternate way
as shown by the defendant is shown in green colour. It is
mentioned that the said way starts from the public road on
the western side and reaches the property of the plaintiff.
15. It has also come out in evidence that the
property of the defendant is located in 186/7 and there also
along its southern boundary a beaten track is seen on the
road on the west and ends on the plaintiff’s property.
Further there are steps seems to enter plaint A schedule
property from plaint B schedule property.
S.A.931/2000. 11
16. Exts. C7 and C8 do not differ much from
Exts.C5 and C6. The other way available to the plaintiff is
shown in blue colour. There is nothing in the evidence to
show that any hindrance has been caused to the use of the
said way by the plaintiff. It is also interesting to note that in
Exts.C7 and C8 a portion of the defendant’s property is
shown in the actual possession of the plaintiff.
17. It is important to notice that Ext.B1 was
deliberately withheld by the plaintiff. The case now is that
the way made mention of in the said document does not
lead to the road on the west, but it is only an internal
arrangement by the sharers under Ext.B1 to go to each
other’s property. If that is the case of the plaintiff, he ought
to have got it noted by the commissioner, who went to the
site several occasions. There was no attempt from his side
to have the way made mention of in Ext.B1 located .
18. There is nothing to indicate that the
predecessor in interest of P.W.1, who is the plaintiff, had
ever used B schedule pathway. It is true that in the plaint it
S.A.931/2000. 12
has been stated that the plaintiff and his predecessors in
interest have been staying in plaint A schedule property.
But that does not lead to the conclusion that they have been
using the B schedule way. It is significant to notice that no
evidence was adduced by the plaintiff in support of his
claim. In fact on going through the evidence of P.W.1 it can
be seen that apart from B schedule now claimed by him, he
has got two other ways to his property. But interestingly
enough what he says is that he is not interested in using
those pathways. He insists on the use of B schedule
pathway.
19. In order to attract easement by necessity
severance of tenement should be specifically pleaded and
proved. There is no such pleading or proof in the case on
hand. Ext.B1 is of the year 1979. It is by virtue of that
document that the plaintiff comes into possession of plaint A
schedule property exclusively. As already noticed, there is
nothing to show that the other way shown in Exts.C3 to C8 is
S.A.931/2000. 13
not the way made mention of in Ext.B1 for the use of sharers
including the plaintiff.
20. It is true that in his evidence P.W.1 says that
for the last 40 years he has been using the B schedule way.
But nowhere in his chief examination he says that there was
an old house in plaint A schedule property. Admittedly the
present plea has been developed later. He has no case in
his evidence that the members of his family prior to 1979
had used plaint B schedule pathway. He confines the use of
plaint B schedule pathway to himself. In the light of the
specific stand taken by P.W.1, the claim now made by the
learned counsel that the predecessors in interest of the
plaintiff have also been using the pathway cannot be
countenanced.
21. It is true that the commission reports and
plans do show the existence of a way as claimed by the
plaintiff through the southern portion of the first defendant’s
property. But merely because there is a way, it does not
mean that the plaintiff is entitled to use the same. He has to
S.A.931/2000. 14
establish the right to do so. He admits that there are other
means of access to his property, but he says that he is not
willing to use those ways. He claims right to use B schedule
pathway, for which, unfortunately he has no manner of right.
22. Faced with the above situation, learned
counsel for the appellant pointed out that on going through
the evidence adduced by the defendants, it can be seen that
a way is conceded by them. At least that way may be made
available to the plaintiff.
23. First of all, it is too late in the day now for the
plaintiff to contend that the way other than the way claimed
by him may be provided. Moreover, the location of the other
way is not definite and certain. Exts.C3 to C8 as already
noticed by the plaintiff do indicate that there is means of
access to the plaintiff to the outside world, which is in
consonance with the way provided under Ext.B1.
24. Learned counsel for the appellant prayed for a
remand for adducing further evidence and also to establish
that the plaintiff has no way other than B schedule pathway.
S.A.931/2000. 15
25. The suit is of the year 1989. 21 years have
elapsed. The plaintiff had failed in the suit, he carried the
matter in appeal and then in second appeal insisting on
untenable grounds. There is no equity in his favour. It will
be doing injustice to the respondents to remand the case to
the trial court. As already noticed it is not as if any injustice
has been done to the plaintiff. In fact he has another way.
No grounds are made out to accept the contention made by
the counsel for the appellant against the concurrent findings
of the court below.
The result is that this appeal is without any merits
and it is liable to be dismissed. I do so with costs to the
respondents.
P. BHAVADASAN,
JUDGE
sb.