IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 151 of 2010(B)
1. K.P.SUBHAKARAN, S/O.K.K.KUNHIRAMAN,
... Petitioner
2. V.P.CHANDRAN, S/O.V.P.APPA, AGED 51
3. K.P.GANGADHARAN, S/O.K.KUNHIRAMAN,
4. K.P.SHANMUGHAN, S/O.K.KUNHIRAMAN,
Vs
1. CHALIL SREEDHARAN, S/O.KUNHIRAMAN,
... Respondent
For Petitioner :SRI.P.U.SHAILAJAN
For Respondent :SRI.GRASHIOUS KURIAKOSE(CAVEATOR)
The Hon'ble MR. Justice P.BHAVADASAN
Dated :10/08/2010
O R D E R
P. BHAVADASAN, J.
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R.S.A. No. 151 of 2010
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Dated this the 10th day of August, 2010.
JUDGMENT
The defendants in O.S. 272 of 2003 before the
Munsiff’s court, Kuthuparamba, who suffered decree at
the hands of trial court as well as lower appellate court
are the appellants. The parties and facts are hereinafter
referred to as they are arrayed before the trial court.
2. The plaintiff claimed to be the absolute
owner in possession and enjoyment of the property,
which he acquired as per Ext.A1 dated 2.5.1980. The
property has access to road on two sides. According to
the plaintiff, the defendants approached him and wanted
him to provide a way through his property to have
access to their property. The plaintiff was not inclined to
accept the request. It is stated that the defendants
threatened him that they would cut open a way through
R.S.A.151/2010. 2
his property. Plaintiff has no other option but to approach
the court for appropriate reliefs.
3. The defendants resisted the suit. Defendants
1, 3 and 4 are the brothers of the wife of the plaintiff. It is
pointed out that the plaintiff has suppressed material facts
and he is not entitled to any relief. According to the
defendants, the only passage to their house was through the
property owned by the plaintiff, which gave access to these
defendants to the public road on the eastern side. The road
which runs through the property of the plaintiff has a width
of three metres and had infact used by Kunhiraman, the
predecessor in interest of the defendants and the members
of his family. By virtue of Ext.B1 partition deed dated
4.2.1993, the property, which belonged to Kunhiraman was
partitioned among his legal heirs. One of the shares was
allotted to the wife of the plaintiff. In the partition deed, it is
specifically stated that in continuation of the existing way, a
portion of the property is left in common to be used as a
way. It is pointed out by the defendants that this is the only
R.S.A.151/2010. 3
means of access to their property and they have been using
it for a long period. They claimed both prescriptive right of
easement and easement by necessity. They prayed for a
dismissal of the suit.
4. The trial court raised necessary issues for
consideration. The evidence consists of the testimony of
P.Ws.1 and 2 and the documents marked as Exts.A1 to A4.
The defendants had D.Ws.1 and 5 and had Exts. B1 to B8
marked. Exts.C1 to C2(a) are the commission reports and
plans. Exts.X1 and X1(a) are third party exhibits.
5. On a consideration of the evidence before it,
the trial court came to the conclusion that the defendants
have failed to establish a right of way through the property
owned by the plaintiff and therefore a decree was granted in
favour of the plaintiff. Defendants carried the matter in
appeal as A.S.23 of 2006 before the Sub Court, Thalassery.
The said court after careful consideration of the evidence in
the case confirmed the findings of the trial court. Hence this
Second Appeal.
R.S.A.151/2010. 4
6. The following questions of law are seen
formulated in the Memorandum of Second Appeal:
“(1) Whether the pleading of plaintiff in O.S.
No.272 of 2003 before the Munsiff’s Court,
Kuthuparamba and his evidence before the court
can be accepted to pass a decree in favour of him.
(2) Whether there is any suppression of
material facts in the plaint and the suppression
alleged by the defendants are sufficient enough to
deny the discretionary relief of injunction prayed
by the plaintiff.
(3) Whether any legal presumption can be
made that a road is existing through the plaint
schedule property on the basis of the recital in
Ext.B1, which was also signed by the plaintiff’s
wife, keeping a common way to the different plots,
as a continuation of the way through the plaintiff’s
property.
(4) Whether the identification of the plaint
schedule property is a material question in a suit
for injunction and whether the plaint schedule
property is properly identified in this case.
(5) Whether there is any legal ground to pass
a decree in favour of the plaintiff in this case.
R.S.A.151/2010. 5
(6) whether the pleadings in the written
statement and the evidence of the defence
witnesses are sufficient to establish their case of
easement by prescription and also by necessity.
(7) Whether the acts of defendants using the
plaintiff’s property as a continuation of the
passage stated in Ext.B1 amounts to trespass.
(8) Whether the judgment and decree
passed in A.S. No.23/06 by the Sub Court,
Thalassery is judicially correct and is there any
procedural irregularity.”
7. Learned counsel appearing for the appellants
pointed out that the courts below have erred in law in
decreeing the suit in favour of the plaintiff. According to
learned counsel, there is clear evidence to show that there
was a way running through the property of the plaintiff
starting from the main road on the east going towards west
and providing access to the defendants to their properties.
That road has been in existence for a long time and used
even by the predecessor in interest of the defendants. The
commission report clearly supports the existence of the way
R.S.A.151/2010. 6
and its use was also established by evidence. The courts
below were not justified in coming to the conclusion that the
way was a newly laid one and that the defendants have no
manner of right to use any portion of the plaintiff’s property
as a way. According to learned counsel, the findings are
clearly unsustainable both on facts and in law.
8. Learned counsel appearing for the respondent
on the other hand submits that the courts below were fully
justified in decreeing the suit. Even though the defendants
claim right of way through the property of the plaintiff, they
were unable to establish the same. It is clearly found that
the way now seen through the property of the plaintiff was a
newly laid one and there was no justification for the
misdeeds of the defendants. Learned counsel also pointed
out that both the courts below have considered whether the
defendants are entitled to use any portion of the property
of the plaintiff as a way on the basis of either easement by
necessity or easement by prescription, and came to the
conclusion that the defendants are not entitled to any such
R.S.A.151/2010. 7
right. Accordingly, it is contended that no grounds are made
out to interfere with the judgments and decrees of the
courts below.
9. The dispute in this case relates to a pathway.
Ext.C2, which is a comprehensive sketch shows the lie of the
properties. There is a road lying on the eastern side of the
plaintiff’s property running north-south. The plaintiff would
say that there is no way through his property. But the
defendants would say that there does exist a road starting
from the main road on the eastern side and running towards
west ending with the property of the second defendant.
There was a pathway, which runs to the property of the
fourth defendant also. It is significant to notice that the
defendants claim the right to use the way on the ground of
easement by necessity and on the ground of prescriptive
right of easement.
10. It is the case of the plaintiff that no way ever
existed through his property and the way now noticed by
R.S.A.151/2010. 8
the Commissioner is a newly laid one. The commission
report do indicate that the way was recently laid.
11. One has to notice that the plaintiff purchased
the property as per Ext.A1 dated 2.5.1980 from one
Kunhiraman, who is none other than the predecessor in
interest of the defendants. It has come out in evidence that
Kunhiraman and his family thereafter was residing on the
western side of the plaint schedule property and they had
means of access to that property other than through the
property sold to the plaintiff. Therefore at that point of time
it could not be said that Kunhiraman had any necessity to
use any portion of the property transferred to the plaintiff by
way of easement by necessity for the reason that
Kunhiraman had other means of access.
12. There are two commission reports, namely,
Exts.C1 and C2. Both the reports show that the way claimed
by the defendants is a recently laid one and the report gives
reasons for reaching such a conclusion.
R.S.A.151/2010. 9
13. Considerable reliance was placed by the
defendants on Ext.B1 document, which is a partition deed of
the year 1993. One of the signatories to the document is
the wife of the plaintiff. Relying on a recital in the said
document, it is contended that there was a way running
through the property of the plaintiff. In the said document,
it is mentioned that the portion of the property, that is
brought for partition is left in common to be in continuation
of the already existing way.
14. Both the courts below have noticed that the
plaintiff is not a party to Ext.B1 and therefore he is not
bound by the recitals therein. Apart from the above fact,
another aspect may also be noticed. Ext.A1 shows that
there was a partition in the family of the defendants and the
executants were given their due shares. The document
shows that three of the sharers have got direct access to the
way on various sides of the properties allotted to them.
Some of those persons are the defendants herein. It is
therefore very clear that at the time of entering into Ext.B1
R.S.A.151/2010. 10
document the sharers had access to their property through
other means. It is also significant to note that Kunhiraman
while transferring the property to the plaintiff as per Ext.A1
document did not reserve any right to himself to use any
portion of the property sold as a pathway. There is absolute
want of evidence to show that simultaneously with the sale,
it became necessary that Kunhiraman needed to have
access through the property sold to the plaintiff as there are
no other access. In fact the evidence shows that the
balance property retained by Kunhiraman had direct access
from the northern side.
15. It is extremely doubtful whether there is a
way as alleged by the defendants running through the
property of the plaintiff. Even assuming that there is a way,
the question that arises for consideration is whether the
defendants have any manner of right to use the same. As
already noticed, Kunhiraman, after selling the property to
the first plaintiff has retained the balance property. That
property, even according to the defendants, had an access
R.S.A.151/2010. 11
from the northern side. It was that property, that was
partitioned in the year 1993. If at all any way is provided in
the 1993 partition deed, it is to run through the property of
the sharers, who have been given shares under the
document. If as a matter of fact by the partition of the year
1993, if anyone of the sharers have any property without
access, there is no obligation on the part of the plaintiff to
provide a pathway. What is significant is that at the time
when Ext.A1 document was executed in favour of the
plaintiff, there was no absolute necessity to use any portion
of the property sold as a way to gain access to the outside
world. Therefore the claim based on easement by necessity
has necessarily to fail.
16. It will be useful to refer the evidence of D.W.1
in this regard. It is admitted by him that when the
properties were divided in 1993, the property that was
partitioned had access to the outside world through other
means. The defendants have no case that at that time there
was any necessity to use any portion of the plaintiff’s
R.S.A.151/2010. 12
property as a way. D.W.1 would say that he had no
knowledge whether his father had made any claim for
easement by necessity over any portion of the property
owned and possessed by the plaintiff. D.W.1 would say that
he came to know about the suit when the commissioner
comes to visit the place. One cannot overlook the criticism
levelled against the commissioner for being a member of the
office from which there was appearance for one of the
defendants. The criticism is without any basis whatsoever.
17. Coming back to the evidence of D.W.1, he has
stated that Kunhiraman, his predecessor in interest, who had
sold the property to the plaintiff as per Ext.A1 document,
had not retained any portion of that property for any
purpose. There is nothing to indicate that at the time of sale
Kunhiraman had asserted any way through the property of
the plaintiff by way of necessity. If that be so, the
defendants cannot also claim the same.
18. What now remains to be considered is the
claim regarding prescriptive right of easement. At the
R.S.A.151/2010. 13
outset itself, one may notice that the commission reports
indicate that the pathway was recently laid. The records
indicate that even after an interim order was issued by the
trial court, the defendants continued their misdeeds. They
alleged to have widened the pathway.
19. The partition among the defendants was of
the year 1993. Since it is not shown that the predecessor in
interest of the defendants had ever used any portion of the
plaintiff’s property as a pathway, the use of the portion of
the property of the plaintiff as a pathway can arise only after
the partition Ext.B1 of the year 1993. If that be so, the
defendants have not been using the disputed way for the
statutory period.
20. It could thus be seen that the defendants can
claim to use any portion of the property of the plaintiff
neither by way of easement by necessity nor as easement
by prescription. The findings of the courts below to that
effect are fully justified. No grounds are made out to
R.S.A.151/2010. 14
interfere with the judgments and decrees of the courts
below.
This appeal is without merits and it is accordingly
dismissed. There will be no order as to costs.
P. BHAVADASAN,
JUDGE
sb.