IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 SA.No. 479 of 1998() -------------------- AS.45/1996 of SUB COURT, KASARAGOD OS.507/1994 of PRL.MUNSIFF'S COURT, KASARAGOD .................... APPELLANTS/RESPONDENTS/DEFENDANTS: ---------------------------------------------------------------- 1. SMT.PUTTA 2. SANJIVA 3. ANANDA 4. GOPALA 5. PRABHAKARA 6.SADASHIVA NO.1 IS THE WIFE AND NOS.2 TO 6 ARE THE CHILDREN OF MANJAPRA MOOLYA, ALL ARE RESIDING AT HARI NILAYA, UDYAVAR VILLAGE OF KASARAGOD TALUK PO MANJESHWAR BY ADV. SRI.K.G.GOURI SANKAR RAI RESPONDENTS/APPELLANTS/PLAINTIFFS ------------------------------------------------------------ 1. K V INDIRA NAVADA W/O.K V NAVADA RESIDING AT KAJOOR NIVAS )( DIED AND LEGAL NEAR RAILWAY STATION )( HEIRS IMPLEADED UDYAVAR VILLAGE, KASARAGOD TALUK P O MANJESHWAR SUPPLEMENTAL RESPONDENTS ---------------------------------------------- 2. PRADISHKUMAR V NAVADA 3. VIJAYALAXMI 4. VINAYA 5. NALINAKSHA SA 479/98 -2- 6. PRAKASH V NAVADA 7. SATHYASIMHA V NAVADA 8. VISHALI 9. USHALATHA ALL ARE CHILDREN OF FIRST RESPONDENT INDIRA NAVADA. ADDL.R2 IS RESIDING NEAR MANGALADEVI TEMPLE AMEKERE, 1ST CROSS PANDESHWARA MANGALORE I, DK (ADDL.RESPONDENTS NOS.3 TO 9 ARE C/O.ADDL.RESPONDENT NO.2 PRADISHKUMAR.V.NAVADA) SRI.K.SHRIHARI RAO FOR R1 SMT.N.SHOBHA FOR R1 SRI.P.N.ANOOP FOR R1 SMT.N.SHOBHA FOR R2 TO R9 SRI.K.SHRIHARI RAO FOR R2 TO R9 SRI.K.S.BALAKRISHNAN FOR R2 TO R9 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11.10.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. -------------------------------------------------------- SA No.479 of 1998-F & cross objection -------------------------------------------------------- Dated this the 11th day of October 2011 Judgment The defendants in OS No.507/94 are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. During the pendency of the appeal before this court, the sole respondent died and her legal representatives have been brought on the party array as additional respondents 2 to 9. 2. Plaint A schedule property admittedly belonged to the plaintiff and plaint B schedule property belonged to the defendants. According to the plaintiff, there is a pathway starting from the main road on the eastern side running through the defendants' property and reaching the plaintiff's property. The plaint as it was originally laid, claimed prescriptive right of easement over the said pathway. Later, it seems that an amendment was SA 479/98-F 2 sought for by the plaintiff, incorporating a prayer for easement by grant. Even though the petition for amendment was allowed, the amendment was not carried out. As the plaint now stands, the claim is prescriptive right of easement through the pathway shown in the plaint, running to B schedule. 3. The defendants resisted the suit and pointed out that the way as claimed by the plaintiff is not in existence and the plaintiff has got direct access through another way which leads to the main road. It is also pointed out that the alleged way runs through a portion of the land used for draining filthy water by the defendants. On the above grounds, they prayed for dismissal of the suit. 4. On the basis of the above pleadings, necessary issues were raised. Evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A8 from the side of the plaintiff. The defendants had DW1 examined and Exts.B1 and B2 marked. Ext.C1 is SA 479/98-F 3 the commissioner's report. 5. The trial court on an evaluation of the evidence on record, came to the conclusion that the plaintiff has miserably failed to establish the plea of prescriptive right of easement and dismissed the suit. 6. The aggrieved plaintiff carried the matter in appeal as AS No.45 of 1996 before the Sub Court, Kasaragod. The lower appellate court reversed the judgment and decree of the trial court and very generously granted a decree in favour of the plaintiff holding that the plaintiff has established easement by grant to use the pathway. Aggrieved by the decree granted by the lower appellate court, the defendants have come up in appeal. 7. Notice is seen issued on the following questions of law raised in the second appeal : A. In the absence of a pleading in the plaint that the plaintiff has acquired a right of way by grant has not the lower appellate court committed an error of law in considering that question and entering a finding thereon, especially SA 479/98-F 4 when that point is not seen to have been argued before the trial court. B. What is the legal effect of an amendment allowed under Order 6 Rule 17 and not amended as provided under Order 6 Rule 18 of CPC ? Can such amendment be taken as part of the plaint in spite of the bar under Order 6 Rule 18 ? C. Has not the lower appellate court committed an error of law in its construction of Ext.A1 ? D. Are not Exts.A2 to A4 invalid and void under law for the reasons stated in the grounds 14 and 15 of the appeal ? Can the recitals in those documents be binding on the defendants or their right over the B schedule property ? E. When it is proved by evidence that there is an obstruction aged about 16 years in the course of an alleged pathway is it not proof of the fact that there is no and could not have been a pathway as alleged. If so, has not the lower appellate court committed an error of law in finding a pathway through P in spite of the existence of a washing stone aged about 15 years and the accumulation of water SA 479/98-F 5 used during washing and let out from the house obstructing the alleged pathway. F. Has not the lower appellate court committed an error of law in casting a burden of proof by necessary implication on the defendants ? G. When the plaintiff has a direct and immediate approach to a public road, is it probable that a right of way by grant would have been given under Ext.A1 so also is it probable that the plaintiff could have acquired a right of way through P by prescription. H. On the facts and circumstances of the case, has not the lower appellate court committed an error of law in allowing the appeal and decreeing the suit. 8. The learned counsel for the appellants contended that the lower appellate court was not justified in decreeing the suit in favour of the plaintiff in the absence of any issue raised by the trial court regarding the plea of easement by grant. The learned counsel also pointed out that the plea of prescriptive right of easement and the plea SA 479/98-F 6 of grant are inconsistent. When the prescriptive right of easement is found against, the lower appellate court ought not to have granted a decree in her favour. The learned counsel also pointed out that the way now found to be in existence is a way which was used by the defendants to take water from the well situated in the property of the plaintiff. The learned counsel went on to point out that the evidence adduced has no foundation in the pleadings and therefore, that evidence could not have been looked into. So the lower appellate court was in clear error in decreeing the suit. 9. The learned counsel for the respondent, on the other hand, pointed out that Ext.A1 document of title of the plaintiff is clear to the effect that there is a way as contended by the plaintiff and that constitutes easement by grant which the lower appellate court has accepted and granted a decree to the plaintiff. According to the learned counsel, the decree passed by the lower appellate court is perfectly legal and no grounds are made out warranting SA 479/98-F 7 interference with the same. 10. After having heard the learned counsel on both sides and after having perused the records, this court finds it difficult to accept the contentions raised by the learned counsel for the respondent. The plaint as it stands now, contains only the plea regarding prescriptive right of easement. Even though the plaintiff filed an amendment petition for incorporating the prayer for easement by grant and that petition was allowed, the amendment was not carried out. Therefore there is no pleading to that effect as of now. The trial court did not raise an issue also in that regard. The plaintiff chose to adduce evidence both for prescriptive right of easement and easement by grant. In the decision reported in Ibrahimkutty v. Abdul Rahumankunju (1992(2) KLT 775), it has been held that in a claim for easement, the pleadings should be precise and the specific nature of the easement claimed will have to be pleaded and the ingredients for that right will have to be SA 479/98-F 8 established by evidence. It is also well settled that even assuming that the plaintiff is entitled to take alternate pleas, she had to select either one of them at the trial stage. The plaintiff did not choose to elect either the plea of prescriptive right of easement or the plea of grant, but pursued both in trial. The view of the lower appellate court, even assuming that the plaint is not amended, it does not matter, cannot be accepted. It has come out in evidence that there is a well laid road on the western side, giving direct access to the plaintiff. The plaintiff has blocked that way and comes forward with a contention that she has no other way except the way made mention of in Ext.A1. But the said plea that is set up at the time of evidence has no foundation in the pleading. It does not stand to common sense that a person who has got direct access on the western side of his property cannot use that way and has to get a pathway through the property of the defendants as if there is no other means of access to her property. SA 479/98-F 9 11. The result is that the plaint as it now stands, does not contain a pleading regarding easement by grant. On the other hand, it seeks to set up a plea of easement by prescription. The learned counsel for the appellant is perfectly justified in his contention that the evidence adduced with respect to easement by grant cannot be looked into. The trial court was justified in non-suiting the plaintiff since she failed to establish the claim of prescriptive right of easement and her pleading did not contain such a claim. The view of the lower appellate court that if the plaint was not amended and the plea of easement by grant was not incorporated, it does not matter, cannot be countenanced. The pleas of prescriptive right of easement and grant cannot go together and the plaintiff could not have pursued both the claims. For these reasons also, this court is unable to accept the findings of the lower appellate court. The appeal is accordingly allowed. The judgment and decree of the lower appellate SA 479/98-F 10 court are set aside and that of the trial court are restored. No order as to costs. The cross objection stands dismissed. P.Bhavadasan, Judge sta SA 479/98-F 11