{"id":176083,"date":"2010-09-03T00:00:00","date_gmt":"2010-09-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sankunni-vs-abdulrahiman-on-3-september-2010"},"modified":"2015-12-10T17:36:34","modified_gmt":"2015-12-10T12:06:34","slug":"sankunni-vs-abdulrahiman-on-3-september-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sankunni-vs-abdulrahiman-on-3-september-2010","title":{"rendered":"Sankunni vs Abdulrahiman on 3 September, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Sankunni vs Abdulrahiman on 3 September, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nSA.No. 931 of 2000(C)\n\n\n\n1. SANKUNNI\n                      ...  Petitioner\n\n                        Vs\n\n1. ABDULRAHIMAN\n                       ...       Respondent\n\n                For Petitioner  :SRI.K.RAMACHANDRAN\n\n                For Respondent  :SRI.B.KRISHNA MANI\n\nThe Hon'ble MR. Justice P.BHAVADASAN\n\n Dated :03\/09\/2010\n\n O R D E R\n                          P. BHAVADASAN, J.\n               - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                          S.A. No. 931 of 2000\n              - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n           Dated this the 3rd day of September, 2010.\n\n                                 JUDGMENT\n<\/pre>\n
           The plaintiff in O.S.677 of 1989, who was<\/p>\n
non-suited by the courts below is the appellant.<\/p>\n
           2. The dispute relates to a pathway, which the<\/p>\n
plaintiff alleges runs along the southern boundary of the<\/p>\n
first defendant’s property.                   The first defendant has<\/p>\n
property on the western side of plaintiff’s property.<\/p>\n
Further west is the Peruvalloor-Mattom public road.<\/p>\n
According to the plaintiff, the pathway commences from<\/p>\n
the said public road, runs through the southern side of<\/p>\n
the first defendant’s property and reaches his property.<\/p>\n
According to the plaintiff, that pathway is the only means<\/p>\n
of access to his property from the outside world. He<\/p>\n
claims that the pathway had a width of 3 feet and a<\/p>\n
length of 73 feet from the public road to plaint A<\/p>\n
schedule property. He claimed that he has got right of<\/p>\n
S.A.931\/2000.                   2<\/span><\/p>\n
easement by prescription to use the said pathway. It is<\/p>\n
also contended that plaint A Schedule property, which is<\/p>\n
owned by the plaintiff, B schedule pathway             and the<\/p>\n
property now owned and possessed by the defendants were<\/p>\n
earlier owned by a common owner thereby indicating that<\/p>\n
the plaintiff has a claim of easement by necessity also over<\/p>\n
the pathway. Claiming that the       defendant was trying to<\/p>\n
close down the pathway, the plaintiff laid the suit.<\/p>\n
             3. The first defendant resisted the suit pointing<\/p>\n
out that there is no bonafides in the suit and there is no<\/p>\n
pathway as alleged by the plaintiff. He had no right in the<\/p>\n
property. In fact the plaintiff wanted him to sell the property<\/p>\n
to him for the low price offered by him, to which he was not<\/p>\n
amenable. Pointing out that there is no pathway as alleged<\/p>\n
in existence and also contending that the plaintiff has no<\/p>\n
manner of right to use any portion of the property as a<\/p>\n
pathway, he prayed for a dismissal of the suit.<\/p>\n
S.A.931\/2000.                   3<\/span><\/p>\n
             4. Second and third defendants, who are the<\/p>\n
subsequent assignees from the first defendant, supported<\/p>\n
the first defendant.\n<\/p>\n
             5. The   trial court raised necessary issues for<\/p>\n
consideration.    The evidence consists of the testimony of<\/p>\n
P.W.1 and documents marked as Exts.A1 and A2 from the<\/p>\n
side of the plaintiff. The defendants examined D.W.1 and<\/p>\n
had Ext. B1 marked. Exts. C1 to C8 are the commission<\/p>\n
reports and sketches. On an evaluation of the evidence in<\/p>\n
the case, the trial court came to the conclusion that there is<\/p>\n
no pathway as alleged in the plaint and the plaintiff had<\/p>\n
other means of access to the outside world. Therefore relief<\/p>\n
was declined to the plaintiff.\n<\/p>\n
             6.    In appeal     the  lower appellate   court<\/p>\n
independently considered the evidence on record and came<\/p>\n
to the same conclusion as the trial court. Accordingly the<\/p>\n
appeal was dismissed. The concurrent findings against the<\/p>\n
plaintiff are challenged in this appeal.\n<\/p>\n
S.A.931\/2000.                   4<\/span><\/p>\n
             7. The following questions of law are seen raised<\/p>\n
in the Second Appeal:\n<\/p>\n
             “A.   Were the courts below justified in<\/p>\n
      mis-appreciating and even ignoring the various<\/p>\n
      vital    facts  and    datas    revealed    in    the<\/p>\n
      commissioner’s reports in support of the plaintiff’s<\/p>\n
      case relating to B schedule way?\n<\/p><\/blockquote>\n
             B. Did not the courts below err in placing the<\/p>\n
      entire burden of proof on the plaintiff?<\/p>\n<\/blockquote>\n
             C. Was the court below justified in finding<\/p>\n
      that prescriptive right can never be acquired over<\/p>\n
      a ridge in a paddy field?\n<\/p><\/blockquote>\n
             D. Did not the courts below err in dismissing<\/p>\n
      the suit?”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
             8. Learned counsel appearing for the appellant<\/p>\n
pointed out that the courts below were not justified in<\/p>\n
non-suiting the plaintiff.   It was contended that on going<\/p>\n
through the commission report, it can be seen that the<\/p>\n
pathway as alleged does exist. There is nothing to indicate<\/p>\n
that the plaintiff has any other means of access to the<\/p>\n
outside world.     It was contended that the pathway made<\/p>\n
S.A.931\/2000.                  5<\/span><\/p>\n
mention of in Ext.B1, of which considerable reliance was<\/p>\n
placed by both the courts below is for the inter se use of the<\/p>\n
sharers of that deed and does not provide access to the<\/p>\n
outside world. It was also pointed out that in the plaint it<\/p>\n
was averred that the plaintiff and his predecessors have<\/p>\n
been using the way for a long time and they have acquired<\/p>\n
prescriptive right of easement to use the same. There is no<\/p>\n
denial of this pleading in the plaint in the written statement<\/p>\n
filed by the defendants and therefore it can be taken as<\/p>\n
admitted. These vital aspects were omitted to be noticed<\/p>\n
by the courts below and according to learned counsel the<\/p>\n
judgment and decrees are clearly unsustainable both on<\/p>\n
facts and in law.<\/p><\/blockquote>\n
             9. Learned counsel appearing for the respondents<\/p>\n
on the other hand pointed out that the courts below have<\/p>\n
considered all the aspects. It is not correct to say that the<\/p>\n
way made mention of in Ext.B1 is for the inter se use of the<\/p>\n
sharers under that deed. It provides access to the outside<\/p>\n
world. Attention of this court was drawn to Exts.C3 to C8<\/p>\n
S.A.931\/2000.                   6<\/span><\/p>\n
and it is pointed out that the way made mention of in the<\/p>\n
partition deed is the way which gives access to the plaintiff<\/p>\n
to the outside world. Learned counsel drew the attention of<\/p>\n
this court to the evidence of P.W.1 and it is pointed out that<\/p>\n
in fact the plaintiff admits existence of other ways. But he<\/p>\n
says that he is not willing to use those ways. It was pointed<\/p>\n
out by learned counsel for the respondent that the<\/p>\n
ingredients necessary to attract easement by necessity or<\/p>\n
easement by prescription are not available in the case on<\/p>\n
hand and both the courts below were justified in holding so.<\/p>\n
It is significant to notice, according to learned counsel that<\/p>\n
the plaintiff started residence in plaint A schedule property<\/p>\n
only in 1979 and the suit had been laid in 1989.          The<\/p>\n
statutory period so as to attract prescriptive right of<\/p>\n
easement is therefore not completed. There is no definite<\/p>\n
pleading or evidence on record to justify a claim of<\/p>\n
easement by necessity also. According to learned counsel,<\/p>\n
therefore both the courts below were justified in dismissing<\/p>\n
the suit.\n<\/p>\n
S.A.931\/2000.                  7<\/span><\/p>\n
             10. The courts below have placed considerable<\/p>\n
reliance on the commission reports and plans. They have<\/p>\n
also relied on the recitals contained in Ext.B1. It is true that<\/p>\n
the lower courts have also adverted to the boundaries of the<\/p>\n
property owned by the plaintiff which was allotted to him as<\/p>\n
per Ext.B1 partition deed. Both the courts below have found<\/p>\n
that the western boundary of item No.1 in A schedule to the<\/p>\n
partition deed is shown as plaint B schedule, which was a<\/p>\n
paddy field and they came to the conclusion that          there<\/p>\n
could not have been a way as alleged by the plaintiff.<\/p>\n
             11. One of the main contentions taken by the<\/p>\n
appellant is that the pathway made mention of in Ext.B1 is<\/p>\n
for the use of the sharers made mention of in Ext.B1 and it<\/p>\n
does not provide access to the outside world. B schedule<\/p>\n
pathway had a width of 3 feet and a length of 73 feet. As<\/p>\n
per the plaint, it runs along the southern side of the first<\/p>\n
defendant’s property. The defendant’s property lies on the<\/p>\n
western side of the plaintiff’s property and further west is<\/p>\n
the road.\n<\/p>\n
S.A.931\/2000.                   8<\/span><\/p>\n
             12. One of the main contentions taken is that in<\/p>\n
paragraphs 4 and 5 of the plaint it is averred that the<\/p>\n
plaintiff as well as his predecessors were using plaint B<\/p>\n
schedule pathway. It needs to be noticed that the plaintiff<\/p>\n
claims both easement by prescription and easement by<\/p>\n
necessity.    One may at once notice that       the pleas are<\/p>\n
inconsistent. While one has its statutory origin, the other<\/p>\n
has its origin in doctrine of lose grant. It may be possible to<\/p>\n
say that the plaintiff can take inconsistent pleas in the<\/p>\n
plaint. But at the time of evidence, he has to select one. He<\/p>\n
has not done so in the present case. The origin, nature, use<\/p>\n
and termination of the two types of easement are totally<\/p>\n
different. It is also necessary to notice that nowhere in the<\/p>\n
plaint the ingredients necessary to attract easement by<\/p>\n
necessity is seen pleaded. In the written statement filed by<\/p>\n
the first defendant he has stated that through his property,<\/p>\n
which is situate on the northern side of the property<\/p>\n
assigned to the second defendant, there was a way running<\/p>\n
through its northern side and it continues to exist. That was<\/p>\n
S.A.931\/2000.                   9<\/span><\/p>\n
the way used by the plaintiff and his brothers and it is<\/p>\n
pointed out by the defendants that it is that way made<\/p>\n
mention of in Ext.B1 partition deed.\n<\/p>\n
             13. The plaintiff places considerable reliance on<\/p>\n
Exts.C1 and C2 report and sketch. That report was an ex<\/p>\n
parte report and it is true that it mentions about existence of<\/p>\n
B schedule pathway. It also mentions about a branch from<\/p>\n
that way leading to the well in the compound of the Mosque<\/p>\n
situate on the southern side of plaint A schedule property.<\/p>\n
Exts. C3 to C8 show the alternate ways from the way made<\/p>\n
mention of in Ext.A1, which provides access to the plaintiff<\/p>\n
to the outside world. It can be seen from these reports and<\/p>\n
plans that a way starts from Mattom-Elavally road on the<\/p>\n
western side, runs through the property of the first<\/p>\n
defendant on the northern side, goes towards east and<\/p>\n
reaches the house of Govindan, who is none other than the<\/p>\n
brother of the plaintiff.    The way continues through the<\/p>\n
property of Govindan and ends on the northern boundary of<\/p>\n
the plaintiff’s property. That is shown as ABC. It has 4 feet<\/p>\n
S.A.931\/2000.                   10<\/span><\/p>\n
width and 51 feet length. The commission report shows that<\/p>\n
there is an opening on the northern boundary of the<\/p>\n
plaintiff’s property where the way terminates. It is true that<\/p>\n
the commission report has stated that there is no way in<\/p>\n
continuation thereof. Exts.C3 and C4 also indicate that the<\/p>\n
said way leads to the property of Madhavan, yet another<\/p>\n
brother of the plaintiff, who got the properties under Ext.B1.<\/p>\n
It proceeds further and reaches the property of Pandiyarth<\/p>\n
Mohanan.\n<\/p>\n
             14. In Exts. C5 and C6 survey plans, alternate way<\/p>\n
as shown by the defendant is shown in green colour. It is<\/p>\n
mentioned that the said way starts from the public road on<\/p>\n
the western side and reaches the property of the plaintiff.<\/p>\n
             15.  It has also come out in evidence that the<\/p>\n
property of the defendant is located in 186\/7 and there also<\/p>\n
along its southern boundary a beaten track is seen on the<\/p>\n
road on the west and ends on the plaintiff’s property.<\/p>\n
Further there are steps seems to enter plaint A schedule<\/p>\n
property from plaint B schedule property.<\/p>\n
S.A.931\/2000.                  11<\/span><\/p>\n
             16. Exts. C7 and C8 do not differ much from<\/p>\n
Exts.C5 and C6. The other way available to the plaintiff is<\/p>\n
shown in blue colour. There is nothing in the evidence to<\/p>\n
show that any hindrance has been caused to the use of the<\/p>\n
said way by the plaintiff. It is also interesting to note that in<\/p>\n
Exts.C7 and C8 a portion of the defendant’s property is<\/p>\n
shown in the actual possession of the plaintiff.<\/p>\n
             17. It is important to notice that Ext.B1 was<\/p>\n
deliberately withheld by the plaintiff. The case now is that<\/p>\n
the way made mention of in the said document does not<\/p>\n
lead to the road on the west, but it is only an internal<\/p>\n
arrangement by the sharers under Ext.B1 to go to each<\/p>\n
other’s property. If that is the case of the plaintiff, he ought<\/p>\n
to have got it noted by the commissioner, who went to the<\/p>\n
site several occasions. There was no attempt from his side<\/p>\n
to have the way made mention of in Ext.B1 located .<\/p>\n
             18.  There is nothing to indicate that the<\/p>\n
predecessor in interest of P.W.1, who is the plaintiff, had<\/p>\n
ever used B schedule pathway. It is true that in the plaint it<\/p>\n
S.A.931\/2000.                 12<\/span><\/p>\n
has been stated that the plaintiff and his predecessors in<\/p>\n
interest have been staying in plaint A schedule property.<\/p>\n
But that does not lead to the conclusion that they have been<\/p>\n
using the B schedule way. It is significant to notice that no<\/p>\n
evidence was adduced by the plaintiff in support of his<\/p>\n
claim. In fact on going through the evidence of P.W.1 it can<\/p>\n
be seen that apart from B schedule now claimed by him, he<\/p>\n
has got two other ways to his property. But interestingly<\/p>\n
enough what he says is that he is not interested in using<\/p>\n
those pathways.     He   insists on the use of B schedule<\/p>\n
pathway.\n<\/p>\n
             19. In order to attract easement by necessity<\/p>\n
severance of tenement should be specifically pleaded and<\/p>\n
proved. There is no such pleading or proof in the case on<\/p>\n
hand. Ext.B1 is of the year 1979. It is by virtue of that<\/p>\n
document that the plaintiff comes into possession of plaint A<\/p>\n
schedule property exclusively. As already noticed, there is<\/p>\n
nothing to show that the other way shown in Exts.C3 to C8 is<\/p>\n
S.A.931\/2000.                    13<\/span><\/p>\n
not the way made mention of in Ext.B1 for the use of sharers<\/p>\n
including the plaintiff.\n<\/p>\n
             20. It is true that in his evidence P.W.1 says that<\/p>\n
for the last 40 years he has been using the B schedule way.<\/p>\n
But nowhere in his chief examination he says that there was<\/p>\n
an old house in plaint A schedule property. Admittedly the<\/p>\n
present plea has been developed later. He has no case in<\/p>\n
his evidence that the members of his family prior to 1979<\/p>\n
had used plaint B schedule pathway. He confines the use of<\/p>\n
plaint B schedule pathway to himself. In the light of the<\/p>\n
specific stand taken by P.W.1, the claim now made by the<\/p>\n
learned counsel that the predecessors in interest of the<\/p>\n
plaintiff have also been using the pathway cannot be<\/p>\n
countenanced.\n<\/p>\n
             21.  It is true that the commission reports and<\/p>\n
plans do show the existence of a way as claimed by the<\/p>\n
plaintiff through the southern portion of the first defendant’s<\/p>\n
property. But merely because there is a way, it does not<\/p>\n
mean that the plaintiff is entitled to use the same. He has to<\/p>\n
S.A.931\/2000.                       14<\/span><\/p>\n
establish the right to do so. He admits that there are other<\/p>\n
means of access to his property, but he says that he is not<\/p>\n
willing to use those ways. He claims right to use B schedule<\/p>\n
pathway, for which, unfortunately he has no manner of right.<\/p>\n
             22.   Faced with the above situation, learned<\/p>\n
counsel for the appellant pointed out that on going through<\/p>\n
the evidence adduced by the defendants, it can be seen that<\/p>\n
a way is conceded by them. At least that way may be made<\/p>\n
available to the plaintiff.\n<\/p>\n
             23. First of all, it is too late in the day now for the<\/p>\n
plaintiff to contend that the way other than the way claimed<\/p>\n
by him may be provided. Moreover, the location of the other<\/p>\n
way is not definite and certain. Exts.C3 to C8 as already<\/p>\n
noticed by the plaintiff do indicate that there is means of<\/p>\n
access       to the plaintiff to the outside world, which is in<\/p>\n
consonance with the way provided under Ext.B1.<\/p>\n
             24. Learned counsel for the appellant prayed for a<\/p>\n
remand for adducing further evidence and also to establish<\/p>\n
that the plaintiff has no way other than B schedule pathway.<\/p>\n
S.A.931\/2000.                    15<\/span><\/p>\n
             25. The suit is of the year 1989. 21 years have<\/p>\n
elapsed. The plaintiff had failed in the suit, he carried the<\/p>\n
matter in appeal and then in second appeal insisting on<\/p>\n
untenable grounds. There is no equity in his favour. It will<\/p>\n
be doing injustice to the respondents to remand the case to<\/p>\n
the trial court. As already noticed it is not as if any injustice<\/p>\n
has been done to the plaintiff. In fact he has another way.<\/p>\n
No grounds are made out to accept the contention made by<\/p>\n
the counsel for the appellant against the concurrent findings<\/p>\n
of the court below.\n<\/p>\n
             The result is that this appeal is without any merits<\/p>\n
and it is liable to be dismissed. I do so with costs to the<\/p>\n
respondents.\n<\/p>\n<\/p>\n
                                              P. BHAVADASAN,
\n                                                  JUDGE<\/p>\n
sb.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Sankunni vs Abdulrahiman on 3 September, 2010 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. – – […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-176083","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSankunni vs Abdulrahiman on 3 September, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sankunni-vs-abdulrahiman-on-3-september-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sankunni vs Abdulrahiman on 3 September, 2010 - 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