{"id":97091,"date":"2008-07-07T00:00:00","date_gmt":"2008-07-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/padmanabhan-nair-vs-krishnan-on-7-july-2008"},"modified":"2016-05-03T16:52:57","modified_gmt":"2016-05-03T11:22:57","slug":"padmanabhan-nair-vs-krishnan-on-7-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/padmanabhan-nair-vs-krishnan-on-7-july-2008","title":{"rendered":"Padmanabhan Nair vs Krishnan on 7 July, 2008"},"content":{"rendered":"
Kerala High Court<\/div>\n
Padmanabhan Nair vs Krishnan on 7 July, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nRSA.No. 36 of 2008()\n\n\n1. PADMANABHAN NAIR, AGED 47,\n                      ...  Petitioner\n2. SAROJINI AMMA, AGED 42,\n\n                        Vs\n\n\n\n1. KRISHNAN, AGED 53, S\/O RAMAN,\n                       ...       Respondent\n\n                For Petitioner  :SRI.BECHU KURIAN THOMAS\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice K.P.BALACHANDRAN\n\n Dated :07\/07\/2008\n\n O R D E R\n                        K.P. BALACHANDRAN, J.\n                 ----------------------------------------------------\n                            R.S.A. No 36 of 2008\n                 ---------------------------------------------------\n                        Dated this the 7th July 2008\n\n\n                                  JUDGMENT\n<\/pre>\n
       Appellants are defendants 1 and 2 in O.S. No 54 of 1989 on the<\/p>\n
file of the Munsiff’s Court, Perumbavoor and they assail the concurrent<\/p>\n
verdicts passed by the courts below in the suit filed by the respondent.<\/p>\n
       2. The respondent filed O.S. No 54 of 1989 aforesaid for a<\/p>\n
decree of declaration and injunction, inter alia, on the allegations that<\/p>\n
plaint A and B schedule properties belong to him having been allotted<\/p>\n
to him included in E schedule items of Ext A1 partition deed No 2644<\/p>\n
dated 18.12.1972 and he is in absolute possession and enjoyment<\/p>\n
thereof; that a pathway coming from south to north is used by the<\/p>\n
plaintiff and defendants for ingress and egress to their properties; that<\/p>\n
the lane coming from south to north ends in the plaint A schedule<\/p>\n
property, that from the south of the western portion of plaint B schedule<\/p>\n
property the way branches towards west, through the north of the<\/p>\n
property of Ithappiri Varghese and it turns to the north and proceeds<\/p>\n
towards north upto the house of the defendant through the western<\/p>\n
side of plaint A schedule property, that another branch of the said<\/p>\n
RSA 36\/08                         2<\/span><\/p>\n
pathway goes towards east through the southern side of plaint A<\/p>\n
schedule property, that plaint A schedule property lies in two<\/p>\n
segments that in between the segments a thondu proceeds towards<\/p>\n
north and ends at the canal on the north of the plaint A schedule<\/p>\n
property, that the said thondu was put up for draining water as the<\/p>\n
land slopes towards north and also for the convenience of taking<\/p>\n
cattle, that the said thondu passes through the eastern side of<\/p>\n
defendant’s property, that the said portion is not being used for the<\/p>\n
last twenty years, that the first defendant influenced the Revenue<\/p>\n
Department and survey staff and got the southern portion of the<\/p>\n
thondu lying in between the two segments of A schedule property<\/p>\n
being shown as puramboke land,         that the said portion had not<\/p>\n
been used as a way at the time of resurvey or in the near past;<\/p>\n
that the northern portion of the thondu lying in between A schedule<\/p>\n
property and defendants’ property is not shown as puramboke land,<\/p>\n
that a complaint as to resurvey also is pending, that the defendants<\/p>\n
began to raise claim over plaint B schedule property and attempted<\/p>\n
to trespass upon the same and hence the suit for declaration of his<\/p>\n
right over plaint B schedule property and for injunction.<\/p>\n
      3. The appellants-defendnts filed written statement resisting the<\/p>\n
RSA 36\/08                             3<\/span><\/p>\n
suit contending, inter alia, that the property of the defendants is lying<\/p>\n
on the west of plaintiff’s property, that a portion of plaint A schedule<\/p>\n
and the defendants’ property are lying on the west of the disputed<\/p>\n
way (B schedule), that the way lies in between the properties of<\/p>\n
plaintiff and defendants, that it is incorrect to say that the way coming<\/p>\n
from south ends at A schedule property; that in fact it proceeds<\/p>\n
towards north upto the paddy field through in between the properties<\/p>\n
of the plaintiff and defendants; that the way proceeding towards west<\/p>\n
through the south of plaint A schedule property terminates in the<\/p>\n
property of Achuthan Nair and the property of the defendants lies at a<\/p>\n
lower level of three feet from the property of Achuthan Nair, that the<\/p>\n
defendants have no way to go to their property other than through<\/p>\n
the disputed plaint B schedule way which has been in existence for a<\/p>\n
long time, that even though B schedule pathway is exclusively<\/p>\n
through plaint A schedule property, defendants and predecessors<\/p>\n
were using the same as a way and they have easement right by<\/p>\n
prescription over the same, that it is incorrect to say that it was put<\/p>\n
up as a thondu for drawing out water and bringing cattle, that the<\/p>\n
canal on the north of plaint schedule property was constructed in<\/p>\n
1981-1982, that the super pass was constructed by Periyar Valley<\/p>\n
RSA 36\/08                           4<\/span><\/p>\n
Authority and the way proceeds towards north even beyond the<\/p>\n
canal, that the resurvey was conducted 25 years ago and the<\/p>\n
defendants have not influenced the resurvey staff and that they have<\/p>\n
not trespassed upon the scheduled property.\n<\/p>\n
      4. On the above pleadings, the trial court raised necessary<\/p>\n
issues for trial and considering the case in the light of also the<\/p>\n
evidence adduced at trial, which consisted of oral evidence of P.Ws<\/p>\n
1 to 3 and D.Ws 1 to 3 and documentary evidence, Exts. A1 to A3<\/p>\n
and Exts B1 to B7 and Exts C1 and C1(a) decreed the suit in part<\/p>\n
declaring the plaintiff’s title and possession over plaint B schedule<\/p>\n
thondu excluding the puramboke portion therein            comprised in<\/p>\n
resurvey number 25\/3 and permanently restraining the defendants<\/p>\n
from trespassing into plaint A schedule property and into portion of<\/p>\n
plaint B schedule thondu extending from the north eastern corner of<\/p>\n
A schedule property lying on the western side of the way upto the<\/p>\n
northern canal and from destroying the boundaries thereof and also<\/p>\n
from committing any act of waste therein. It was further specified<\/p>\n
that the plaintiff is not entitled for an injunction with regard to the<\/p>\n
portion of B schedule thondu comprised in resurvey 25\/3 which is a<\/p>\n
puramboke land.\n<\/p>\n
RSA 36\/08                          5<\/span><\/p>\n
      5. Appellants assailed the said decree and judgment in A.S.<\/p>\n
No. 43 of 2005 before the District Court, Ernakulam and the said<\/p>\n
appeal was dismissed confirming the decree and judgment of the<\/p>\n
trialcourt. Hence this Regular Second Appeal by the defendants.<\/p>\n
      6. The suit is for declaration and injunction on the allegation<\/p>\n
that the defendants are attempting to make out a way through plaint<\/p>\n
A schedule property, viz, through in between the eastern and<\/p>\n
western segments of plaint A schedule property describing the<\/p>\n
portion as plaint B schedule thondu. On the west of a portion of<\/p>\n
plaint B schedule property is also the property of the defendants.<\/p>\n
Plaint B schedule is stated to be a portion of land having a width of 5<\/p>\n
feet and length of 75 feet comprised in”A” schedule and extending<\/p>\n
upto east-west canal passing through plaint “A” schedule property.<\/p>\n
A rough sketch also has been produced by the plaintiff along with the<\/p>\n
plaint and therein plaint B schedule is shown as E to F portion and it<\/p>\n
is alleged that the said portion is lying without any use for the last<\/p>\n
twenty years and wild bush has grown in the said B schedule portion.<\/p>\n
The lower appellate court has extracted the statement made by the<\/p>\n
defendants in para 3 of their written statement, which is to the<\/p>\n
following effect.\n<\/p>\n
RSA 36\/08                           6<\/span><\/p>\n
By reason of advancing such a claim, defendants have admitted that<\/p>\n
the plaint scheduled property belongs to the plaintiff, B schedule is<\/p>\n
a portion from out of A schedule property belonging the plaintiff.<\/p>\n
Hence the question is as to whether appellants-defendants have<\/p>\n
established right of easement by prescription as contended by them.<\/p>\n
In paragraph 4 of the written statement defendants have contended<\/p>\n
that the plaintiff as also the defendants and their predecessors were<\/p>\n
using plaint B schedule portion that lies in between plaint A schedule<\/p>\n
property as a pathway and that the said pathway has got 10 to 12<\/p>\n
feet width slanding from south to north and that it is incorrect to say<\/p>\n
that it ends at the canal running from east to west.         In fact it<\/p>\n
proceeds towards north through the paddy fields. In view of the<\/p>\n
contentions so set up by the appellants-defendants, as rightly<\/p>\n
observed by the first appellate court, burden is on the appellants-<\/p>\n
defendants to establish their right of easement over plaint B schedule<\/p>\n
RSA 36\/08                            7<\/span><\/p>\n
by prescription as title of the plaintiff is admitted by the defendants. It<\/p>\n
has rightly been observed by the court below that for the plaintiff to<\/p>\n
succeed in the suit claiming right of easement by prescription, user<\/p>\n
for twenty years once upon a time is not sufficient. The defendants<\/p>\n
have to prove the user of the plaint B schedule property as a way<\/p>\n
continuously and openly as of right for twenty years ending within<\/p>\n
two years immediately preceding the institution of the suit.         The<\/p>\n
definite case of the plaintiff is that the said portion is not used as a<\/p>\n
way and the thodu was lying extended from the southern road upto<\/p>\n
the northern nilam through plaint A schedule property and formerly it<\/p>\n
was being used to take cattle and now it is lying unused. Exts. C1<\/p>\n
and C1(a) are commission report and plan. It has been observed by<\/p>\n
the court below that the commission report would show that the way<\/p>\n
coming from south reaches upto A schedule property and it branches<\/p>\n
towards east and west and B schedule way starts from that way and<\/p>\n
proceeds towards north. The eastern segment of plaint A schedule<\/p>\n
property is divided into two portions – the north and south plots by<\/p>\n
the   canal constructed by the Irrigation Department in east west<\/p>\n
direction. The house of the respondent-plaintiff is in the segment on<\/p>\n
the north of the canal.     Plaint B schedule is shown only upto to the<\/p>\n
RSA 36\/08                           8<\/span><\/p>\n
canal that runs to the west separating the eastern segment of A<\/p>\n
schedule property into the northern and southern portions.     Beyond<\/p>\n
north of that, the B schedule thondu does not extend.<\/p>\n
      7. According to the plaintiff, who has tendered evidence as<\/p>\n
P.W.1, there is no way at present between plaint A schedule property<\/p>\n
as described in B schedule.         Defendants have given evidence<\/p>\n
examining D.Ws 2 and 3 over and above the evidence tendered by<\/p>\n
the first defendant as D.W.1. First appellate court has considered<\/p>\n
the evidence in all its details and has come to the conclusion that the<\/p>\n
evidence is not sufficient to prove the user of way by the appellants.<\/p>\n
Continuously as of right openly and publicly for a period of twenty<\/p>\n
years ending within two years preceding        institution of the suit.<\/p>\n
According to the D.W.2 he knows the property from his 19th year and<\/p>\n
he is now aged 71 and according to him the way was one which was<\/p>\n
upto the northern nilam, but after the construction of the irrigation<\/p>\n
canal it turns towards east and does not proceed to the northern<\/p>\n
nilam.    He has also deposed that      in the beginning it was only a<\/p>\n
thondu having only width of 5 feet though it is presently having the<\/p>\n
width of 10 feet. The defendant himself has admitted that the canal<\/p>\n
was constructed in 1981-82 and D.W.2 was giving evidence in 1993.<\/p>\n
RSA 36\/08                           9<\/span><\/p>\n
Suit was filed only in 1989. The alleged widening was within the last<\/p>\n
twenty years immediately preceding 1993 at the time when D.W.2<\/p>\n
was giving evidence and before that it was only a thondu having a<\/p>\n
width of 5 feet as stated by him. Hence obviously defendants would<\/p>\n
not have any right of easement over the widened portion.           It is<\/p>\n
further widened towards east namely, into plaint A schedule property<\/p>\n
that lies on the east and not towards the defendants’ property.    It is<\/p>\n
admitted that on the east of such pathway there was no demarcation<\/p>\n
and on the western side there is a kayyala of the defendants. If so,<\/p>\n
by the widening the way, the thondu was destroyed and annexed<\/p>\n
with the property of the plaintiff. At present there is no thondu at all.<\/p>\n
It is observed by the first appellate court that in cross examination<\/p>\n
D.W.1 has admitted that he had last gone to the place five or eight<\/p>\n
years back and he does not know the condition of B schedule thondu<\/p>\n
for the last eight years.  He also admitted that he was going to the<\/p>\n
paddy fields not through that way at present. The suit was filed in<\/p>\n
1989 and D.W.1 was giving evidence in 1993. Hence his evidence<\/p>\n
is of no use to the appellants-defendants to prove the user of the way<\/p>\n
continuously for twenty years as of right ending within two years<\/p>\n
immediately preceding the institution of the suit. D.W.3 has given<\/p>\n
RSA 36\/08                            10<\/span><\/p>\n
evidence that there is a foot track towards the northern paddy field.<\/p>\n
According to him the way was through the western side of the<\/p>\n
plaintiff’s property and on the western side of the way there is a mud<\/p>\n
wall constructed by the defendants. He further stated that western<\/p>\n
mud wall was there but the eastern kayyala was not there and the<\/p>\n
way is lying adjoining to plaintiff’s property. He also stated that it was<\/p>\n
the plaintiff who destroyed the kayyala and widened it into his<\/p>\n
property. However he admits that he did not see the destruction of<\/p>\n
the kayyala. His evidence would thus show that even if thondu was<\/p>\n
there it was destroyed and it was annexed with the property of the<\/p>\n
plaintiff by destroying the eastern kayyala of the thondu. He also<\/p>\n
deposed that at present on the western side of the property of the<\/p>\n
plaintiff there is a portion which lies as thondu and that the said<\/p>\n
thondu portion is not lying in such a way so as to have passage as<\/p>\n
at that portion there are bushes and bamboo clusters.         Further he<\/p>\n
stated that after widening of the thondu into the property of the<\/p>\n
plaintiff on its east the thondu portion cannot be distinguished. As<\/p>\n
already stated the evidence of D.W.2 is sufficient to find that the<\/p>\n
thondu is not in use for the last twenty years ending within two<\/p>\n
years preceding the institution of the suit. Thus on an evaluation of<\/p>\n
RSA 36\/08                          11<\/span><\/p>\n
the judgments of the trial court and the first appellate court which has<\/p>\n
considered the entire evidence adduced in the case, I see no merit at<\/p>\n
all in this Second Appeal and the Second Appeal does not pose any<\/p>\n
substantial question of law for consideration by this court.<\/p>\n
       In the result, refusing admission, I dismiss this Regular Second<\/p>\n
Appeal in limine.\n<\/p>\n
                                                  Sd\/-\n<\/p>\n
                                          K.P. BALACHANDRAN
\n                                                 Judge<\/p>\n
7\/7\/08
\nen<\/p>\n
             [true copy]<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Padmanabhan Nair vs Krishnan on 7 July, 2008 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 […]<\/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-97091","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nPadmanabhan Nair vs Krishnan on 7 July, 2008 - 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\/padmanabhan-nair-vs-krishnan-on-7-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Padmanabhan Nair vs Krishnan on 7 July, 2008 - 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