IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 592 of 1999(D)
1. PURUSHOTHAMAN
... Petitioner
Vs
1. CHANDRASEKHARAN
... Respondent
For Petitioner :SRI.DILIP J.AKKARA
For Respondent :SRI.G.PRABHAKARAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :19/10/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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S.A.NO.592 OF 1999
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Dated this the 19th day of October, 2010
J U D G M E N T
The 2nd defendant in O.S.No.96 of 1988 on the file of
the Munsiff Court, Kodungalloor had preferred this second
appeal. He passed away pending the appeal and then his
legal heir (son) was impleaded as additional 2nd appellant.
Challenge in the appeal is against the concurrent decision
rendered by the two courts below granting a decree
declaring the right of prescriptive easement over plaint B
schedule, a pathway by the respondents/plaintiffs and also a
perpetual prohibitory injunction against the defendants in
the suit from causing any obstruction to the plaintiffs in
enjoyment of such right.
2. The dispute involved in the case, admittedly, is
confined to the width of the pathway and also whether
plaint B schedule takes in portions of a thodu running along
S.A.NO.592/1999 2
the northern extremities of the property of the 1st defendant
in the suit. The 1st defendant is the wife of the 2nd
defendant. Plaintiffs alleged that the B schedule pathway
running through the northern extremities of the properties
of the 1st defendant in east west direction, is being enjoyed
by them as of right for the last more than fifty years
uninterruptedly and peacefully and they have acquired
prescriptive easement over that pathway for ingress and
egress to their residential building comprised in the
property situate to the west of that pathway. The immediate
cause for filing of the suit, according to the plaintiffs, was
the attempt made by the defendants to put up a boundary
wall on the northern side of their property encroaching
upon portions of B schedule pathway. The defendants, both
of them, together filed a joint written statement contending
that the plaintiffs have no right of easement over B schedule
pathway and its description was per se wrong. Contending
that the 2nd defendant was an unnecessary party to the suit,
the plaintiffs resisted the suit claim asserting that the
pathway situate on the north of the property of the 1st
S.A.NO.592/1999 3
defendant is only having a width of 2 to 3 feet. It was the
further case of the defendants that just to the south of that
pathway through the northern extremities of the property of
the 1st defendant, there is a water channel, which, by the
flow of rain water from east to west to a water tank situate
on the south western side, at some places had been filled up
and the portions covered by the water channel running
through the property of the defendants are mischievously
included in B schedule pathway by the plaintiffs as if over
such a pathway they have obtained right of prescriptive
easement. The defendants have a right to put up a
boundary wall to the north of the channel which pass
through the property of the 1st defendant was their case to
resist the reliefs canvassed by the plaintiffs in their suit.
The trial court, after appreciating the materials tendered in
the case by the parties, which consisted of PWs.1 to 3 and
Exts.A1 to A4 for the plaintiffs and DW1 for the defendants,
and Exts.C1 to C4, the reports and plans prepared by an
advocate commissioner, found the claims of the plaintiffs for
declaration of prescriptive easement over B schedule and
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also for perpetual prohibitory injunction against the
defendants from causing any obstruction to their enjoyment
over that pathway are well-founded and thereupon,
negativing the challenges raised to such claims by the
defendants, the suit was decreed as canvassed for. The
lower appellate court, after re-appreciating the materials,
confirmed the findings of the trial court and dismissed the
appeal preferred by the defendants against the decree
granted in favour of the plaintiffs. The decision so rendered
by the two courts below holding that the plaintiffs are
entitled to the declaration of their right of prescriptive
easement over B schedule pathway and also an injunction
against the defendants is challenged in this appeal filed by
the 2nd defendant, and after his death, prosecuted by his
legal representative, the additional 2nd appellant. Pending
the appeal before the courts below, it is stated in the
memorandum of appeal, the 1st defendant had passed away,
but evidently none was brought on record as her legal
representative in such appeal.
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3. The learned counsel for the appellant assailed the
concurrent findings entered by the two courts below with
respect to the existence of B schedule pathway and its
enjoyment by the plaintiffs contending that the materials
tendered in the case, especially the reports of the advocate
commissioner, clearly demonstrate that such pathway is
having uneven width at different places, and when a claim
for a declaration of prescriptive easement is canvassed for,
the plaintiffs were bound to state with precision the material
particulars of the pathway and its identity with concrete
evidence. The learned counsel further contended that the
case of the plaintiffs was that B schedule was outside the
property of the defendants, and such being the case
advanced, no decree for declaration of prescriptive
easement over B schedule pathway could have been granted
by the courts as was wrongly done in the present case. The
width of the footsteps on the east for getting to the public
road and also the features noticed by the commissioner that
a major portion of B schedule claimed by the plaintiffs are at
uneven levels by the flow of rain water from east to west,
S.A.NO.592/1999 6
according to the counsel, substantiated the defense raised
that a water channel pass through the northern extremities
of the property of the 1st defendant and B schedule is
described as taking in that water channel as well to claim
prescriptive easement by the plaintiffs. Reliance was placed
by the counsel in Smt.Anguri and others v. Jiwan Dss
and another (AIR 1988 SC 2024) to contend the plaintiffs
cannot be permitted to increase the burden of easement on
servient owner setting up a larger claim than that was
available and enjoyed by them as a right of easement. By
seeking a declaration of easement over B schedule as
described in the plaint, according to the counsel, the
plaintiffs were blocking the natural water channel flowing
through the northern extremities of the property of the 1st
defendant and the right of easement so claimed by them was
not at all allowable. But both the courts, without
appreciating the materials in the proper perspective,
forming wrong conclusions, granted the decree imputed in
the appeal in favour of the plaintiffs and it is liable to be set
aside, according to the counsel.
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4. Though the learned counsel for the appellant had
raised some arguments that the declaration of easement of
the plaint schedule was claimed by the plaintiffs as if they
were setting up such a right contending that part of the
plaint schedule is a public way and the rest formed part of
the property of the 1st defendant, after going through the
pleadings and also the materials tendered and also
adjudication made by both the courts on the issues involved,
I find there was no such case for the defendants either in
the pleadings or before the courts below. Further more,
there is nothing on record to indicate that the plaintiffs had
at any point of time set up a case over B schedule as if the
part of it was enjoyed as a public way and the rest alone
under the servient tenement of the 1st defendant. Perusing
the concurrent decisions rendered by the two courts below,
I find that the challenges raised against the decree that the
plaintiffs are entitled to the declaration of easement and
also injunction are meritless. It has come out from the
evidence that the 1st defendant examined as DW.1 that the
fence put up in her property is to the south of the plaint
S.A.NO.592/1999 8
schedule, that is, beyond the water channel claimed as
running through her property. Further more, during the
pendency of the suit, she had executed A4 sale deed in
respect of ten cents of land in north south direction on the
eastern side of her property. In that document also, the
northern boundary of the property conveyed was shown as
the pathway. A3 was executed in favour of one Co-operative
Society and it has come out that its execution was after that
society obtaining approval from the competent authorities.
If the case of the 1st defendant is to be accepted over the
water channel, which is claimed as running from east to
west through the northern extremity of her property, she
retained her proprietary right after execution of A3 deed
even in respect of partition of the channel situate to the
north of the ten cents of land conveyed under that deed.
During the rainy season, water from the public road situate
on the north runs through a portion of the pathway, to a
nearby water bank situated on the southwest in no way
indicate that there is only a pathway of two or three feet,
and not as described in the plaint schedule. The 1st
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defendant had obtained right over the property situated to
the south of the plaint schedule pathway under A2 partition
deed. In that deed also the northern boundary of the
property allotted to the 1st defendant is described as
‘idavazhy’ (pathway). Similarly in A3 deed relating to the
property owned by a close-by neighbour situate to the north
of the plaint schedule, the southern boundary of that
property is shown as the ‘idavazhi’. In none of these
documents there is any mention of any water channel close
to the pathway or such a channel running through the
northern extremities of the 1st defendants property. Plaint
schedule is lying on a lower level from the rest of the
property of the 1st defendant situated on its southern side is
not indicative of the existence of a water channel through
the northern extremities of the 1st defendant’s property.
Similarly, the width of the stepping stones near the public
road which are comparatively less when compared to the
width of the pathway is also not a determining factor to hold
that the description of the plaint schedule is wrong and the
pathway has got only a lesser extent. The commissioner has
S.A.NO.592/1999 10
reported that the pathway has uneven width of ten to twelve
feet at various places and not ten feet uniform by, as
described in the schedule, is hardly sufficient to negative
the claim for declaration canvassed by the plaintiff where
the existence of the pathway, though, disputed by the
defendants, and its right of enjoyment by the plaintiffs is
established by the materials. The decision relied by the
counsel Smt.Anguri and others v. Jiwan Dss and
another (AIR 1988 SC 2024) has no application to the
facts of the case. That was a case where additional burden
over the servient tenement was attempted to be brought in
by the dominant tenement holder, and in that context,
adverting to Section 23 of the Indian Easements Act, it was
held that such increasing burden of easement on the
servient owner cannot be approved or permitted. That
decision no way helps the present appellant where the
resistance put by him that a water channel forming part of
his property is claimed as a pathway has been found
unacceptable by the courts below after appreciating the
materials tendered in the case.
S.A.NO.592/1999 11
5. It is also noticed that the second appeal has been
preferred by the 2nd defendant in the suit, the husband of
the 1st defendant. In the memorandum of appeal, it is stated
that pending the appeal before the lower appellate court,
the 1st defendant, the servient owner, through whose
property easement was claimed by the plaintiffs, had passed
away. It appears that the appeal was continued and
prosecuted by the 2nd defendant, who was the 2nd appellant,
without impleading any other legal heirs of the deceased 1st
defendant/the 1st appellant. Pending second appeal, the
appellant/2nd defendant too had passed away and his son
had been impleaded as additional appellant. It is a moot
point how far the challenge against the concurrent decision
rendered by the courts below could be assailed by the 2nd
defendant or his legal representative when in the joint
written statement filed by both the defendants, it was
contended that the 2nd defendant was an unnecessary party
to the suit and, further, the 1st defendant was the servient
owner of the property. Irrespective of that question, as
indicated earlier, there is no merit in the challenges raised
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to impeach the concurrent decision rendered by the courts
below holding that the respondents/plaintiffs are entitled to
the decree of easement and also decree of injunction against
the defendants. There is no question of law, leave alone any
substantial question of law in this appeal.
Appeal is devoid of any merit, and it is dismissed
directing both sides to suffer their respective costs.
S.S.SATHEESACHANDRAN
JUDGE
prp
