IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 SA.No. 732 of 2000(D) ---------------------------- OS.205/1996 of MUNSIFF COURT,KATTAPPANA AS.3/1998 of SUB COURT,KATTAPPANA .................... APPELLANT/RESPONDENT/DEFENDANT: ---------------------------------------------------------- GEORGE S/O. DEVASSIA, RESIDING AT THANDANPARAMBIL HOUSE, VALIYAKANDAM KARA, KATTAPPANA VILLAGE UDUMBANCHOLA TALUK BY ADV. SRI.P.JACOB VARGHESE, SENIOR ADVOCATE RESPONDENT/APPELLANT/PLAINTIFF: -------------------------------------------------------- GEORGE S/O. DEVASSIA, RESIDING AT POOMATTATHIL HOUSE VELLAYAMKUDI KARA, KATTAPPANA VILLAGE UDUMBANCHOLA TALUK ADVS. SRI.T.P.VARGHESE SRI.PHILIP T.VARGHESE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: smt P.BHAVADASAN, J. ----------------------------- S.A. No.732 of 2000-D -------------------------------- Dated this the 9th day of June 2011 J U D G M E N T The defendant in O.S.No.205 of 1996 before the Munsiff's Court, Kattappana who suffered decrees at the hands of the lower appellate court is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff is the absolute owner and possession over the plaint A schedule property. According to him, plaint B schedule property is a road which provides access to his property. It is further stated in the plaint that plaint B schedule road originally belonged to Varghese Ponnummel. In 1975, the plaintiff and the predecessor in interest of the defendant jointly requested Varghese to allow them to use plaint B schedule property as a road and that was agreed to. From 1975 the plaintiff has been using S.A. No.732 of 2000-D -: 2 :- plaint B schedule road as of right and therefore, he claimed prescriptive right of easement over the road. Allegation in the plaint was that the defendant who came into possession of neighbouring property recently is trying to reduce the width of the road and annex the same to his property. On the basis of the above allegation, the suit was laid. 3. The defendant resisted the suit. He stated that the plaintiff has no title over the plaint A schedule property. He denied that plaint B schedule road was put up in 1975 as granted by Varghese. According to him, the plaintiff has no manner of right to use any portion of his property and no road exists as alleged. The defendant purchased the property in 1992. Thereafter, in 1993 he purchased 34 cents of land. He then purchased 828 square links of property situated on the north of the above two items of properties. The plaintiff has no right to use any portion of defendant's property as of way. On the basis of these contentions, he prayed for dismissal of the suit. S.A. No.732 of 2000-D -: 3 :- 4. On the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of Pws.1 to 4 and Exts.A1 and A2 from the side of the plaintiff. The defendants had DW1 examined and Exts.B1 to B4 marked. Ext.C1 is the Commissioner's report. 5. The trial court, on appreciation of the evidence in the case found that there does exist a way as shown in B schedule to the plaint. However, the court also found that the plaintiff was not successful in establishing the easement right claimed by him to use the road and accordingly dismissed the suit. 6. The disappointed plaintiff carried the matter in appeal as A.S.No.3 of 1998. The lower appellate court concurred with the findings of the trial court in its conclusion that the plaintiff has miserably failed to establish prescriptive right of easement to use the plaint B schedule road. Thereafter, strangely the lower appellate court found that the plaintiff has to use the road to reach his property S.A. No.732 of 2000-D -: 4 :- and granted decree in favour of the plaintiff. The finding was based on an implied grant. It is the said judgment and decree that are assailed by the defendant before this Court. 7. Notice is seen issued on the following questions of law raised in the second appeal:- 1.Whether the lower appellate court was justified in setting the trial court findings and granting the relief of permanent prohibitory injunction holding easement by grant? 2.When reliefs are sought for on declaratory relief, the courts are justified in granting consequential reliefs while refusing the declaratory reliefs sought for? 3.Whether the lower appellate court was justified in holding on facts that there is implied easement by grant without support of any documentary or oral evidence? 4.In the absence of any document conferring grant express or impliedly the lower appellate court ought S.A. No.732 of 2000-D -: 5 :- not have granted the consequential relief. 8. The learned counsel for the appellant pointed out that the lower appellate court was unjustified in its conclusion and it could not have been granted the relief in the light of the pleadings and evidences. Plaintiff put forward prescriptive right of easement with regard to the plaint B schedule road but had miserably failed to establish claim. There was absolute want of pleadings in respect of easement by grant and the lower appellate court was not right in accepting that claim. The learned counsel for the appellant drew the attention of this Court to the fact that plaintiff had no definite stand and he had no idea about the nature of right claimed by him. In such circumstance, the learned counsel pointed out that the lower appellate court was not justified in granting a decree. In order to succeed in the plea based on right of easement there have to be two tenements namely dominant tenement and servient tenement. The plaintiff in this case has no case that the S.A. No.732 of 2000-D -: 6 :- defendant is the owner of the servient tenement. 9. On going through the evidence, it is seen that the focus was on the claim of prescriptive easement of right. In evidence, however it is stated that he and the predecessor in interest of the defendant had purchased the road from PW3. In that case prescriptive right of easement cannot be raised at all because if he had purchased along with defendant the road he become the owner atleast a co-owner and one cannot claim easement right over one's own property. 10. It is true that the commissioner had reported the existence of road. But it is for the plaintiff to prove the nature of the right which entitled him to use the road. It is not possible to understand what exactly is the case of the plaintiff. In one place he says that the defendant had no manner of right over B schedule. If as already noticed the plaintiff is claiming prescriptive right of easement he has to necessarily admit the title of the defendant. In this case he S.A. No.732 of 2000-D -: 7 :- does not do so. He has also a case based on easement of grant said to have been given by PW3. Evidence of PW3 is to the effect that he received Rs.1000/- and sold the property to the plaintiff and predecessor in interest of the defendant. 11. As already noticed there is no sufficient pleading regarding the plea for easement of grant and no evidence in that regard. PW3 in his evidence says that he did not claim any manner of right over the plaint B schedule road and he had sold it to the plaintiff and the predecessor in interest of the defendant. It was these facts, circumstances and evidences which are persuaded the trial court to conclude that the plaintiff had miserably failed to establish any manner of right in respect of road. 12. However, the lower appellate court has rightly noticed that there is no claim of severance of tenements. The lower appellate court finds that the plaintiff has got no other way for access to the outside world and therefore, S.A. No.732 of 2000-D -: 8 :- granted a decree in his favour. The decree cannot be sustained at all. In the result, the appeal is allowed. Accordingly, the judgment and decree of the lower appellate court are set aside and that of the trial court are restored. There will be no order as to costs. P.BHAVADASAN, JUDGE. Jvt