IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 767 of 2007()
1. MRS.VIMALA AMMA, D/O.KALYANI AMMA,
... Petitioner
Vs
1. KOOMUNDAKKAL MARUTHIYAT PRABHAVATHIAMMA
... Respondent
2. KOOMUNDAKKAL MARUTHIYAT RADHA AMMA,
3. AZHAKIL KUNHAMMAD, S/O.ABDULLA,
4. DO.BROTHER SIDDIQUE, S/O.ABDULLA,
5. MR.ABDURAHIMAN, S/O.KUNHAMMAD,
For Petitioner :SRI.C.VALSALAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :16/10/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No. 767 OF 2007
............................................
DATED THIS THE 16th DAY OF OCTOBER, 2007
JUDGMENT
Plaintiff in O.S.138 of 2000 on the file of Munsiff-
Magistrate Court, Perambra is the appellant. Defendants are
respondents. Appellant instituted the suit seeking a decree for a
declaration that appellant has every right to use plaint D
schedule property as a pathway to plaint A schedule property
and alternatively that she has a right to use plaint A schedule
property as an easement of necessity as well as quasi-easement
and a consequential injunction restraining respondents 3 to 5
from interfering with the peaceful enjoyment of plaint D
schedule way or from changing its nature. Plaint A, B, C and D
schedule properties admittedly originally belonged to the mother
of appellant and respondents 1 and 2. Under Ext.A2 gift deed,
mother gifted plaint A schedule property to appellant, plaint B
schedule property to first respondent and C schedule property to
second respondent. According to appellant, plaint D schedule
property is a way leading to plaint A schedule property from the
western road and it was kept common under Ext.A2 gift deed
and the property gifted to respondents 1 and 2 are excluding the
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D schedule way. It was contended that respondents 1 and 2
subsequently assigned their right over plaint D schedule
property in favour of respondents 3 to 5 and they also did not
derive any right or title to plaint D schedule property and
appellant has a right to use plaint D schedule way to reach plaint
A schedule property and respondents are not entitled to obstruct
the same. Appellant claimed title to plaint D schedule property
contending that it was kept common under Ext.A2 gift deed. She
also alternatively claimed a right of easement by necessity. By
subsequent amendment a right of way by quasi-easement was
also claimed.
2. Respondents filed separate written statements. First
respondent contended that no pathway was in existence as D
schedule property and as per sale deed dated 31.8.1998, she
assigned her right over plaint B schedule property in favour of
respondents 3 and 4 and appellant has no right over D schedule
property and he is not entitled to the decree for declaration or
injunction sought for. Respondents 2 and 5 filed a joint written
statement contending that the way to the house in the plaint A
schedule property was from the road which is situated on the
western side and also from the pathway on the northern side and
RSA 767/2007 3
there was no way to plaint A schedule property from the east as
claimed. It was contended that second respondent assigned her
right over plaint C schedule property in favour of 5th respondent
as per sale deed 1190 of 2000 and the pathway on the southern
side of C schedule property was assigned and it was separately
demarcated as a way. Property on the northern side of the
pathway belongs to respondents and appellant has no right over
the same. It was contended that appellant has no right over
plaint D schedule property and is not entitled to the decree
sought for.
3. Respondents 3 and 4 filed a separate written statement
contending that there was no pathway as D schedule shown in
the plaint at the time of assignment in favour of respondents 3
and 4 or thereafter. There was no dispute regarding existence of
a way. It was contended that appellant has access available to
plaint A schedule property is from the pathway on the northern
side and the road on the western side and hence is not entitled
to the decree sought for.
4. Learned Munsiff, on the evidence of PW1, DW1,
Exts.A1 to A13 and Exts.C1 to C6, rejected the case of appellant
that plaint D schedule property was kept common under Ext.A2
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gift deed. Learned Munsiff also found that the entire property
which lies to the east of plaint A schedule property was gifted in
favour of respondents 1 and 2 and no pathway was kept as
common as claimed by appellant. It was further found that
appellant is not entitled to a right of way through plaint D
schedule property either as easement by prescription or
necessity or quasi-easement. The suit was therefore dismissed.
Appellant challenged the decree and judgment before Additional
District Court, Vadakara in A.S.64 of 2004. Before the first
appellate court, appellant filed an application under Order VI
Rule 17 to amend the plaint incorporating the specific plea of
right of way by quasi-easement. It was allowed by first appellate
court. Learned Additional District Judge, on reappreciation of
evidence, confirmed the findings of learned Munsiff and
dismissed the appeal. It is challenged in the second appeal.
5. Learned counsel appearing for appellant was heard. The
argument of learned counsel is that as per the measurements
of schedule B and C in Ext.A2 gift deed, D schedule property was
left as common and therefore courts below should have found
that plaint D schedule property was not gifted either to first
respondent as B schedule or to second respondent as C schedule
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and plaint D schedule property is the way to the family house in
plaint A schedule property. It was argued that even if no right of
easement by necessity will arise in view of the alternate way
available on the north and west of plaint A schedule property, in
view of the amendment of plaint whereunder a right of way by
quasi-easement is claimed, courts below should have found that
appellant has a quasi-easement right of way over plaint D
schedule property. It was argued that the plea of quasi-
easement was not there when trial court dismissed the suit and
first appellate court rejected the case for the reason that
appellant has claimed title to the property and is therefore not
entitled to claim a quasi-easement right and when evidence
establish that the house in the plaint A schedule property was
more than 100 years old and the way to that house was towards
the east plaint D schedule property should be the way and
courts below should have found that plaint D schedule property
was used as a way to plaint A schedule property even before
Ext.A2 gift deed and therefore it is an apparent way which was
continuously used and necessary for the enjoyment of plaint A
schedule property and therefore appellant has a quasi-easement
right and hence the decree and judgment passed by courts below
RSA 767/2007 6
are to be set aside. It was also argued that neither trial court nor
first appellate court entered a specific finding with regard to the
title claimed by appellant to plaint D schedule property and in
such circumstances, findings of courts below are unsustainable.
6. Ext.A2(copy of which was made available by appellant)
establish that one common property belonging to the mother was
gifted as three plots to three daughters. A schedule property was
gifted to appellant, B schedule property to first respondent and C
schedule property to second respondent. B and C schedule
properties are lying north and south and A schedule property is
to the west of B and C schedule properties. Though it was
argued that plaint B and C schedule properties gifted to
respondents 1 and 2, will not take in plaint D schedule way and it
was kept common, a reading of Ext.A2 disprove the said
submission. The northern boundary of plaint B schedule
property which is the southern plot shows that the northern
boundary is the plaint C schedule property. So also the southern
boundary of C schedule property is plaint B schedule property.
If in fact plaint D schedule property was kept as common for the
usage of the donees, it would have been specifically mentioned
in Ext.A2. Apart from non-mentioning of such a common way or
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plot, Ext.A2 shows that the property gifted to second respondent
is the property upto the northern boundary of plaint B schedule
property which was gifted to first respondent. It does not show
any property in between the boundaries of plaint B and C
schedule properties. Learned Munsiff has specifically adverted
to this aspect in paragraph 10 of the judgment and found that
case of appellant that plaint D schedule property was kept
common is not correct. Therefore the argument that there is no
specific finding by courts below is not correct. When Ext.A2
does not show that any portion of the property was kept common
and the boundaries of plot B and C schedule properties show
that no property was kept common in between the said plots,
finding of courts below that plaint D schedule property was not
kept common is perfectly correct. If that be so, the claim of title
to plaint D schedule property, as it was kept common under
Ext.A2 gift deed cannot be accepted.
7. Then the only question is whether appellant has
established any right of way through plaint D schedule property.
As rightly found by courts below, the original pleading does not
specifically show which right was claimed in the plaint except
that alternatively a right of easement by necessity was claimed.
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It is not disputed that to the north of the plaint A schedule
property there is a way. So also to the west of plaint A schedule
property there is a road. In such circumstances, the claim for
right of way by easement of necessity was rightly rejected by
courts below. The right of easement by prescription was not
claimed and cannot be claimed as till the date of Ext.A1 gift deed
of 1988, plaint D schedule property was part of the common
property and after the splitting of the property under Ext.A2,
appellant cannot claim a right of easement by prescription in a
suit instituted in the year 2000.
8. The other right of way which could be claimed is a right
of quasi-easement. Though there was no specific plea in the
plaint, a right of quasi-easement was raised before learned
Munsiff. Learned Munsiff elaborately considered that claim in
paragraph 10 of the judgment. Relying on the text of Kathiar in
law of easement and license, learned Munsiff found that in order
to substantiate the right of quasi-easement, the way claimed
should be apparent, continuous and necessary for the enjoyment
of the tenament for which it is claimed and in the same stage in
which it was enjoyed before severance from the tenament, on
which their liability is thrown. Learned Munsiff on the evidence
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found that if there was such an apparent way which was enjoyed
and was necessary for the enjoyment at the time of splitting of
the tenament, it would have been mentioned in Ext.A2. On the
evidence it was found that there was no such apparent way
available to plaint A schedule property through plaint D schedule
property at the time of Ext.A1 and therefore the right of quasi-
easement claimed by appellant is also not sustainable, when
such a way was not necessary for the enjoyment of plaint A
schedule property as a way is available on the north and west.
Before the first appellate court appellant got amended the plaint
raising a specific plea of quasi-easement, even though learned
Munsiff considered that question elaborately. First appellate
court also rejected the claim raised basing on quasi-easement.
The argument of learned counsel is that first appellate court
rejected the case solely on the basis that such a right cannot be
claimed without recognising the right of respondents 1 and 2 the
assignees of plaint D schedule property; As appellant claimed
title to plaint D schedule property on the basis that it was kept
common, the right cannot be claimed. It cannot be said that the
finding of first appellate court that when appellant contended
that she is the owner of plaint D schedule property, a right of
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easement cannot be claimed over D schedule proeprty is not
correct. Even otherwise on the evidence appellant did not
establish that at the time of Ext.A3, plaint D schedule property
was continuously used as an apparent way and that way was
necessary for the enjoyment of plaint D schedule property which
was absolutely necessary to establish a right of quasi-easement
of way. In such circumstances, finding of courts below that
appellant is not entitled to a right of way by quasi-easement is
also correct. As no substantial question of law is involved in the
appeal, it is dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-