IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 RSA.No. 371 of 2005() --------------------- AS.45/2001 of PRL.SUB COURT,IRINJALAKUDA OS.878/1999 of ADDL.MUNSIFF COURT, IRINJALAKUDA .................... APPELLANT:(SOLE ASSIGNEE OF PLAINT SCHEDULE PROPERTY FROM THE DECEASED APPELLANT WHO IN TURN WAS THE PLAINTIFF BEFORE THE TRIAL COURT ------------------------------ V.B. BASHEER, AGED 31 YEARS, S/O. V.K. BAVA, VAZHAYIL HOUSE, KORATTY P.O., MURINGOOR THEKKUMMURI VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.K.S.BHARATHAN RESPONDENT(S): APPELLANTS/DEFENDANTS: --------------------------------------------------------------------- 1. JOSEPH, S/O. NALPADAN PAILON, KORATTY DESOM, MURINGOOR THEKKUMURI VILLAGE, MUKUNDAPURAM TALUK. 2. GEORGE, SON OF NALPADAN PAILON, DO. DO. BY ADV. SRI.S.SREEKUMAR, SENIOR ADVOCATE FOR R1 & R2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15 / 11 / 2011, THE COURT ON 15/11/2011 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 371 OF 2005 =========================== Dated this the 16th day of November,2011 JUDGMENT Plaintiff in O.S.878/1999 on the file of Additional Munsiff Court, Irinjalakuda is the appellant. Defendants are the respondents. Suit was filed for permanent prohibitory injunction restraining the respondents from trespassing into the plaint schedule property contending that he has absolute right and possession to the plaint schedule property under Ext.A2 settlement deed and respondents have no manner of right over the same. It was contended that claiming a plea of right of way, a false complaint was filed before the authorities and attempt of the respondents is to cut open a way through the plaint schedule property. They have no such right. A decree for permanent injunction was sought. RSA No.371/2005 2 2. Respondents filed a written statement and also raised a counterclaim, contending that they have a right of way by easement of prescription through the plaint schedule property. It was contended that the description of the plaint schedule property is not fully correct and about four cents of the property which lies immediately to the east of the National Highway is on the north and the remaining portion of the property stretches towards the south. The properties of the respondents are lying to the east of the said four cents. The only way available to the said properties is along the northern portion of the four cents. It was contended that, the said way is being used as of right, as an easement, openly, peaceably and without interruption for more than 40 years and appellant is not entitled to cause any obstruction to the way and the suit was instituted suppressing the right of way. It was contended that subsequent to the filing of the suit on 28.4.1999 appellant put up a fence along the RSA No.371/2005 3 western boundary of the plaint schedule property with a view to deny the right over plaint B schedule way, shown in the counterclaim. Therefore a decree for mandatory injunction was sought to remove the obstruction caused to the way. 3. Learned Munsiff on the evidence holding that respondents did not establish a right of way by easement of prescription granted a decree in favour of the appellant restraining respondents from cutting open a new pathway through the plaint schedule property. The counter claim was dismissed. Respondents challenged the decree before the Principal Sub Court, Irinjalakuda in A.S.45/2001. The decree in the counterclaim was also challenged in the appeal. Learned Sub Judge on reappreciation of the evidence, found that report of the Commissioner with the evidence establish a conscious effort on the part of the appellant to tamper with the existing way by ploughing the land. Suit was instituted thereafter and after institution of the suit a fence was RSA No.371/2005 4 constructed on the western boundary so as to close the way. Subsequently the fence was substituted by a compound wall. Learned Sub Judge on the evidence found that there existed a way, as claimed by the respondents through the northern portion of the plaint schedule property. It was further found that, the said way is being used by the respondents openly, peaceably and without interruption for more than twenty years prior to the institution of the suit and it was as of right and as an easement and therefore respondents have established a right of way by easement of prescription. Finding that construction of the compound wall obstructed the way and appellant has no right to cause such obstruction, the countrclaim was allowed and a decree for mandatory injunction was granted. The decree granted by the trial court in the suit, was set aside and the suit was dismissed. It is challenged in the second appeal. 4. Appeal was admitted formulating the RSA No.371/2005 5 following substantial questions of law. a. Did not the first appellate court failed to discharge its functions as court of first appeal as mandatory under section 96 of the CPC in re-appreciating, reanalyzing and drawing opposite conclusions with that of the trial court in the absence of any manifest error of law. b. Did not the first appellate court clearly fell into error in law in granting a decree on the basis of inchoate right. c. Can the mere user of pathway without anything more ripen into an easement by prescription as per Section 15 of the Easement Act. RSA No.371/2005 6 d. In the facts and circumstances of the case did not the first appellate court commit a manifest illegality in granting a mandatory injunction for demolishing the compound wall against the appellant herein without their being a prayer or any circumstances justifying the same. 5. Learned counsel appearing for the appellant and the respondents were heard. 6. The argument of the learned counsel is that though the learned Munsiff on proper appreciation of evidence found that respondents did not establish a right of way by easement of prescription, first appellate court did not properly appreciate the evidence and wrongly found that there exists a way and it has been used by the respondents continuously without interruption, for RSA No.371/2005 7 the requisite period and that too as of right and as an easement and hence the decree granted is not sustainable. Learned counsel argued that Dws. 1 and 2 the respondents and DW3 is a person who claims the benefit of the very same way as according to him, he is also using the same and thereby a beneficiary of the way if it is upheld by the court, first appellate court was not justified in upholding the right of way relying on their evidence. Learned counsel argued that evidence of Dws.1 and 2 establish that their property was wet land where paddy cultivation was being carried out and the plaint schedule property belonging to the appellant was also a paddy field and in such circumstances when there is no possibility for an existence of a way through the paddy field and even if the varamba of the field was used for walking, it will not enable the respondents to claim a right of way by easement of prescription and therefore the decree granted is not sustainable. Learned counsel also argued that RSA No.371/2005 8 first appellate court mainly on the ground that appellant had tampered with the property immediately prior to the institution of the suit and even subsequent to the institution of the suit, appreciated the evidence with a biased mind and such appreciation of the evidence and the resultant finding of the first appellate court are not sustainable. 7. Learned counsel appearing for the respondents pointed out that the existence of the way was established by the evidence and if the way was not in existence, appellant would not have ploughed that portion of the property, to remove the existence of the way and from the report of the commissioner, it is absolutely clear that the way claimed by the respondents exists in the plaint schedule property. Learned counsel argued that in the absence of a case for the appellant that the way was being used by the respondents as permitted by him and the respondents claimed that they have been using the way as of right, if the way is RSA No.371/2005 9 existing it can only be found that the way is being used as of right and as an easement. Learned counsel also argued that evidence of Dws. 1 to 3, properly appreciated by the first appellate court, establish that there exists a disputed way and it is being used by the respondents for more than 25 years prior to the institution of the suit openly, peaceable and continuously without interruption and first appellate court rightly upheld the right of way by easement of prescription. It was argued that having found that subsequent to the institution of the suit, appellant constructed the compound wall, blocking the pathway, a decree for mandatory injunction was granted and it is also perfectly correct. 8. A portion of the plaint schedule property belonging to the appellant admittedly lies immediately to the west of the property of the respondents. The National Highway admittedly lies along the west of the plaint schedule property. According to the respondents, they have a right of RSA No.371/2005 10 way from their property, to reach the western National Highway, through the northern portion of the plaint schedule property. Appellant instituted the suit alleging that no way exists, through the plaint schedule property and claiming a way respondents filed a complaint before the authorities and are attempting to carve out a way, a decree for permanent prohibitory injunction was sought. A Commission was taken out. The Commissioner submitted Exts.C1 report and C1(a) plan. The report and plan establishes that there was conscious attempt on the part of the appellant to tamper with the existing way, which was originally existing in the plaint schedule property, which starts from the east and proceeds through the plaint schedule property and reaches the western National Highway. The Commissioner could find the remaining portion of the way, through the property of the respondents connecting the way. As rightly found by the first appellate court, from the very fact that appellant RSA No.371/2005 11 instituted the suit after ploughing the portion of the property, through which the way passes, so as to remove the traces of the way, establish that the appellant has not approached the court with clean hands and suppressing the fact sought a decree for injunction claiming that no way exists through the plaint schedule property. Learned counsel appearing for the appellant had taken me through the depositions of the witnesses as well as Exts.C1 to C3 reports. It was submitted that the evidence do not support the findings of the first appellate court. On going through the evidence, it is absolutely clear that the findings of the learned District Judge that the way claimed by the respondents exists in the plaint schedule property, which starts from the eastern boundary and proceeds towards the western National Highway through the northern portion of the plaint schedule property before the institution of the suit and it was tampered and suit was filed is perfectly correct. RSA No.371/2005 12 9. Then the only question is whether respondents or their predecessors have been using this way as of right and as an easement openly, peaceably and without interruption for more than 20 years prior to the institution of the suit. The question is whether on the evidence the finding is correct. 10. On reappreciation of the evidence of Dws. 1 to 3, I cannot agree with the submission of the learned counsel appearing for the appellant that their evidence cannot be relied on or that their evidence do not establish the existence of the way for more than 20 years or that it was being used by the respondents for the requisite period. On the evidence it is clear that respondents and their predecessors have been using the way, upheld by the first appellate court, for more than 20 years prior to the institution of the suit. The evidence also establish that the way was being used openly, peaceably and without interruption. 11. Learned counsel appearing for the RSA No.371/2005 13 appellant vehemently argued that as the evidence establish that all the properties are originally paddy field and even Dws. 1 and 2 admitted that paddy was being cultivated in the plaint schedule property existence of a way through the varamba will not enable the respondents to claim a right of way and therefore the right of way upheld by the first appellate court is not sustainable. First of all, it is to be born in mind that appellant has no case that he or his predecessors were cultivating the paddy in the plaint schedule property within a period of 25 years, prior to the institution of the suit. Evidence of Dws.1 to 3 would only show that paddy was being cultivated in the property 25 years earlier. The fact that in Exts.B1 and B2, the properties are shown as nilam, need not necessarily mean that on the date of their execution, the property was a paddy field. The description as wet land could only mean that in the the revenue records, the land is recorded wet land. It is also to be born in mind that appellant has no RSA No.371/2005 14 case that there existed a way and that way was being used by the respondents as permitted by him. In the absence of a case of permission either for the appellant or the respondents, and the only plea raised by the appellant was that no way exist, which is found to be not correct, the only other alternative is the usage of the way as of right. In such circumstances, first appellate court was fully justified in upholding the right of way claimed by the respondents. As it is established that the way was obstructed by the appellant by constructing compound wall after the filing of the suit, first appellate court rightly granted a decree for mandatory injunction in the counterclaim directing appellant to remove the obstruction caused and to restore the way as its original position. I find no merit in the appeal. Appeal is dismissed. Learned counsel appearing for the appellant then submitted that an order was passed by this court while admitting the appeal, granting interim RSA No.371/2005 15 stay of further proceedings pursuant to the decree granted in A.S.45/2001 and the order may be extended for one month to enable the appellant to challenge this judgment. In the light of the findings, I do not find any reason to extend the order of stay. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006