IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 36 of 2008()
1. PADMANABHAN NAIR, AGED 47,
... Petitioner
2. SAROJINI AMMA, AGED 42,
Vs
1. KRISHNAN, AGED 53, S/O RAMAN,
... Respondent
For Petitioner :SRI.BECHU KURIAN THOMAS
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :07/07/2008
O R D E R
K.P. BALACHANDRAN, J.
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R.S.A. No 36 of 2008
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Dated this the 7th July 2008
JUDGMENT
Appellants are defendants 1 and 2 in O.S. No 54 of 1989 on the
file of the Munsiff’s Court, Perumbavoor and they assail the concurrent
verdicts passed by the courts below in the suit filed by the respondent.
2. The respondent filed O.S. No 54 of 1989 aforesaid for a
decree of declaration and injunction, inter alia, on the allegations that
plaint A and B schedule properties belong to him having been allotted
to him included in E schedule items of Ext A1 partition deed No 2644
dated 18.12.1972 and he is in absolute possession and enjoyment
thereof; that a pathway coming from south to north is used by the
plaintiff and defendants for ingress and egress to their properties; that
the lane coming from south to north ends in the plaint A schedule
property, that from the south of the western portion of plaint B schedule
property the way branches towards west, through the north of the
property of Ithappiri Varghese and it turns to the north and proceeds
towards north upto the house of the defendant through the western
side of plaint A schedule property, that another branch of the said
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pathway goes towards east through the southern side of plaint A
schedule property, that plaint A schedule property lies in two
segments that in between the segments a thondu proceeds towards
north and ends at the canal on the north of the plaint A schedule
property, that the said thondu was put up for draining water as the
land slopes towards north and also for the convenience of taking
cattle, that the said thondu passes through the eastern side of
defendant’s property, that the said portion is not being used for the
last twenty years, that the first defendant influenced the Revenue
Department and survey staff and got the southern portion of the
thondu lying in between the two segments of A schedule property
being shown as puramboke land, that the said portion had not
been used as a way at the time of resurvey or in the near past;
that the northern portion of the thondu lying in between A schedule
property and defendants’ property is not shown as puramboke land,
that a complaint as to resurvey also is pending, that the defendants
began to raise claim over plaint B schedule property and attempted
to trespass upon the same and hence the suit for declaration of his
right over plaint B schedule property and for injunction.
3. The appellants-defendnts filed written statement resisting the
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suit contending, inter alia, that the property of the defendants is lying
on the west of plaintiff’s property, that a portion of plaint A schedule
and the defendants’ property are lying on the west of the disputed
way (B schedule), that the way lies in between the properties of
plaintiff and defendants, that it is incorrect to say that the way coming
from south ends at A schedule property; that in fact it proceeds
towards north upto the paddy field through in between the properties
of the plaintiff and defendants; that the way proceeding towards west
through the south of plaint A schedule property terminates in the
property of Achuthan Nair and the property of the defendants lies at a
lower level of three feet from the property of Achuthan Nair, that the
defendants have no way to go to their property other than through
the disputed plaint B schedule way which has been in existence for a
long time, that even though B schedule pathway is exclusively
through plaint A schedule property, defendants and predecessors
were using the same as a way and they have easement right by
prescription over the same, that it is incorrect to say that it was put
up as a thondu for drawing out water and bringing cattle, that the
canal on the north of plaint schedule property was constructed in
1981-1982, that the super pass was constructed by Periyar Valley
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Authority and the way proceeds towards north even beyond the
canal, that the resurvey was conducted 25 years ago and the
defendants have not influenced the resurvey staff and that they have
not trespassed upon the scheduled property.
4. On the above pleadings, the trial court raised necessary
issues for trial and considering the case in the light of also the
evidence adduced at trial, which consisted of oral evidence of P.Ws
1 to 3 and D.Ws 1 to 3 and documentary evidence, Exts. A1 to A3
and Exts B1 to B7 and Exts C1 and C1(a) decreed the suit in part
declaring the plaintiff’s title and possession over plaint B schedule
thondu excluding the puramboke portion therein comprised in
resurvey number 25/3 and permanently restraining the defendants
from trespassing into plaint A schedule property and into portion of
plaint B schedule thondu extending from the north eastern corner of
A schedule property lying on the western side of the way upto the
northern canal and from destroying the boundaries thereof and also
from committing any act of waste therein. It was further specified
that the plaintiff is not entitled for an injunction with regard to the
portion of B schedule thondu comprised in resurvey 25/3 which is a
puramboke land.
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5. Appellants assailed the said decree and judgment in A.S.
No. 43 of 2005 before the District Court, Ernakulam and the said
appeal was dismissed confirming the decree and judgment of the
trialcourt. Hence this Regular Second Appeal by the defendants.
6. The suit is for declaration and injunction on the allegation
that the defendants are attempting to make out a way through plaint
A schedule property, viz, through in between the eastern and
western segments of plaint A schedule property describing the
portion as plaint B schedule thondu. On the west of a portion of
plaint B schedule property is also the property of the defendants.
Plaint B schedule is stated to be a portion of land having a width of 5
feet and length of 75 feet comprised in”A” schedule and extending
upto east-west canal passing through plaint “A” schedule property.
A rough sketch also has been produced by the plaintiff along with the
plaint and therein plaint B schedule is shown as E to F portion and it
is alleged that the said portion is lying without any use for the last
twenty years and wild bush has grown in the said B schedule portion.
The lower appellate court has extracted the statement made by the
defendants in para 3 of their written statement, which is to the
following effect.
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By reason of advancing such a claim, defendants have admitted that
the plaint scheduled property belongs to the plaintiff, B schedule is
a portion from out of A schedule property belonging the plaintiff.
Hence the question is as to whether appellants-defendants have
established right of easement by prescription as contended by them.
In paragraph 4 of the written statement defendants have contended
that the plaintiff as also the defendants and their predecessors were
using plaint B schedule portion that lies in between plaint A schedule
property as a pathway and that the said pathway has got 10 to 12
feet width slanding from south to north and that it is incorrect to say
that it ends at the canal running from east to west. In fact it
proceeds towards north through the paddy fields. In view of the
contentions so set up by the appellants-defendants, as rightly
observed by the first appellate court, burden is on the appellants-
defendants to establish their right of easement over plaint B schedule
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by prescription as title of the plaintiff is admitted by the defendants. It
has rightly been observed by the court below that for the plaintiff to
succeed in the suit claiming right of easement by prescription, user
for twenty years once upon a time is not sufficient. The defendants
have to prove the user of the plaint B schedule property as a way
continuously and openly as of right for twenty years ending within
two years immediately preceding the institution of the suit. The
definite case of the plaintiff is that the said portion is not used as a
way and the thodu was lying extended from the southern road upto
the northern nilam through plaint A schedule property and formerly it
was being used to take cattle and now it is lying unused. Exts. C1
and C1(a) are commission report and plan. It has been observed by
the court below that the commission report would show that the way
coming from south reaches upto A schedule property and it branches
towards east and west and B schedule way starts from that way and
proceeds towards north. The eastern segment of plaint A schedule
property is divided into two portions – the north and south plots by
the canal constructed by the Irrigation Department in east west
direction. The house of the respondent-plaintiff is in the segment on
the north of the canal. Plaint B schedule is shown only upto to the
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canal that runs to the west separating the eastern segment of A
schedule property into the northern and southern portions. Beyond
north of that, the B schedule thondu does not extend.
7. According to the plaintiff, who has tendered evidence as
P.W.1, there is no way at present between plaint A schedule property
as described in B schedule. Defendants have given evidence
examining D.Ws 2 and 3 over and above the evidence tendered by
the first defendant as D.W.1. First appellate court has considered
the evidence in all its details and has come to the conclusion that the
evidence is not sufficient to prove the user of way by the appellants.
Continuously as of right openly and publicly for a period of twenty
years ending within two years preceding institution of the suit.
According to the D.W.2 he knows the property from his 19th year and
he is now aged 71 and according to him the way was one which was
upto the northern nilam, but after the construction of the irrigation
canal it turns towards east and does not proceed to the northern
nilam. He has also deposed that in the beginning it was only a
thondu having only width of 5 feet though it is presently having the
width of 10 feet. The defendant himself has admitted that the canal
was constructed in 1981-82 and D.W.2 was giving evidence in 1993.
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Suit was filed only in 1989. The alleged widening was within the last
twenty years immediately preceding 1993 at the time when D.W.2
was giving evidence and before that it was only a thondu having a
width of 5 feet as stated by him. Hence obviously defendants would
not have any right of easement over the widened portion. It is
further widened towards east namely, into plaint A schedule property
that lies on the east and not towards the defendants’ property. It is
admitted that on the east of such pathway there was no demarcation
and on the western side there is a kayyala of the defendants. If so,
by the widening the way, the thondu was destroyed and annexed
with the property of the plaintiff. At present there is no thondu at all.
It is observed by the first appellate court that in cross examination
D.W.1 has admitted that he had last gone to the place five or eight
years back and he does not know the condition of B schedule thondu
for the last eight years. He also admitted that he was going to the
paddy fields not through that way at present. The suit was filed in
1989 and D.W.1 was giving evidence in 1993. Hence his evidence
is of no use to the appellants-defendants to prove the user of the way
continuously for twenty years as of right ending within two years
immediately preceding the institution of the suit. D.W.3 has given
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evidence that there is a foot track towards the northern paddy field.
According to him the way was through the western side of the
plaintiff’s property and on the western side of the way there is a mud
wall constructed by the defendants. He further stated that western
mud wall was there but the eastern kayyala was not there and the
way is lying adjoining to plaintiff’s property. He also stated that it was
the plaintiff who destroyed the kayyala and widened it into his
property. However he admits that he did not see the destruction of
the kayyala. His evidence would thus show that even if thondu was
there it was destroyed and it was annexed with the property of the
plaintiff by destroying the eastern kayyala of the thondu. He also
deposed that at present on the western side of the property of the
plaintiff there is a portion which lies as thondu and that the said
thondu portion is not lying in such a way so as to have passage as
at that portion there are bushes and bamboo clusters. Further he
stated that after widening of the thondu into the property of the
plaintiff on its east the thondu portion cannot be distinguished. As
already stated the evidence of D.W.2 is sufficient to find that the
thondu is not in use for the last twenty years ending within two
years preceding the institution of the suit. Thus on an evaluation of
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the judgments of the trial court and the first appellate court which has
considered the entire evidence adduced in the case, I see no merit at
all in this Second Appeal and the Second Appeal does not pose any
substantial question of law for consideration by this court.
In the result, refusing admission, I dismiss this Regular Second
Appeal in limine.
Sd/-
K.P. BALACHANDRAN
Judge
7/7/08
en
[true copy]