IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 8TH JULY 2011 / 17TH ASHADHA 1933 SA.No. 313 of 2000(D) --------------------- A.S.No.163/1993 OF PRL. SUBORDINATE JUDGE, IRINJALAKUDA O.S.No.205/1992 OF PRINCIPAL MUNSIFF, IRINJALAKUDA APPELLANT(S)/APPELLANTS/DEFENDANTS :- ----------------------------------------------------------------- 1. C.D.GOVINDAN, S/O.CHAKKUNGATHODIYIL DAMODARAN, THORAVU VILLAGE, MUKUNDAPURAM TALUK. 2. VISHNU, S/O.GOVINDAN, THORAVU VILLAGE, MUKUNDAPURAM TALUK, REPRESENTED BY GUARDIAN 1ST APPELLANT) BY ADV. SRI.K.JAYAKUMAR, SENIOR ADVOCATE SRI.O.V.MANIPRASAD RESPONDENT(S)/RESPONDENTS/PLAINTIFF & 2ND DEFENDANT :- ----------------------------------------------------------------------------------------------- 1. C.G.NARAYANAN, S/O.CHAKKUNGATHODIYIL GOVINDAN, THORAVU VILLAGE, MUKUMDAPURAM TALUK. 2. C.G.JANARDHANAN, S/O.CHAKKUNGATHODIYIL JANARDHANAN, THORAVU VILLAGE, MUKUMDAPURAM TALUK. ADV. SRI.V.GIRI SRI.P.C.CHACKO THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 313 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of July, 2011. JUDGMENT Undaunted by the concurrent findings against them, the defendants in O.S.No.205 of 1992 before the Principal Munsiff's Court, Irinjalakuda have come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff claimed to be the absolute owner in possession of plaint A schedule property having acquired the same under Ext.A1 dated 11.02.1959. His residential compound is situated on the southern side while the plaint A schedule property is situated on the northern side. According to the plaintiff, the means of access to plaint A schedule property and to his residential compound is through the plaint B schedule property, which runs through the property of the defendants. The case of the plaintiff was that ever since he purchased the plaint A schedule property in 1959 he has been using the plaint B schedule way as that S.A.No.313 of 2000 2 is the only way to the plaint A schedule property for ingress and egress. He has been using the way continuously from 1959 onwards. The plaint alleges that the defendants have threatened or declared that they would obstruct or destroy the plaint B schedule way and would not allow the plaintiff to use the way. Hence, the suit is one for declaration as well as for perpetual injunction. 3. The first defendant resisted the suit. In fact, the the first defendant disputed the existence of the way but pointed out that the plaintiff was permitted to use the way by his father and plaintiff has never been using the way as of right or as easement. It is also pointed out that the way was being used by the defendant for taking clay to his tile factory and the plaintiff had no manner of right to use the same as claimed by him. On the basis of these contentions, he prayed for a dismissal of the suit. 4. Based on the above pleadings, issues were S.A.No.313 of 2000 3 raised by the trial court. The evidence consists of the testimony of P.Ws. 1 to 3 and documents marked as Ext.A1 from the side of the plaintiff. Defendants examined D.W.1 and had Exts.B1 and B2 marked. Exts.C1 to C3 are the commissioner's report and plan. 5. On an appreciation of the evidence in the case, the trial court came to the conclusion that the plaintiff has succeeded in establishing the claim of prescriptive right of easement and accordingly granted a decree in his favour. The aggrieved defendants took up the matter in appeal as A.S.No.163 of 1993 before the Sub Court, Irinjalakuda. The lower appellate court on a re-appraisal of the evidence in the case found that no grounds are made out to interfere with the judgment and decree of the trial court and confirmed the same. Therefore, the appeal was dismissed. 6. Notice is seen issued on the following substantial questions of law: “1. Have not the courts below erred in law in holding that the plaintiff has S.A.No.313 of 2000 4 prescriptive right over plaint-B schedule pathway in the absence of evidence to establish the existence and user of the pathway as of right for the period prescribed by law ? 2. Whether on facts and in the circumstances of the case the courts below are correct in holding that the plaint-B schedule pathway was in existence and the plaintiff has got a prescriptive right of easement, when there is no evidence and proof regarding the user of the pathway for the period to acquire a prescriptive right of easement ? 3. Whether on the facts and in the circumstances of the case the courts below are correct in upholding the claim of prescriptive easement in the teeth of the permission given by the father of the first defendant which has been established in the case ? 4. Whether the courts below are correct in holding that Plaint-B schedule pathway existed for the period claimed by the plaintiff in the light of Exts.B1 and B2 ? 5. Whether the finding to the effect that pathway was in existence since 1959 is correct in the light of the non- S.A.No.313 of 2000 5 mentioning of the same in Exts.B1 and B2 documents of the year 1975? Have not the courts below erred substantially in ignoring the evidence in the case ? 6. Whether the courts below are correct in upholding the claim of prescriptive easement, when there is no evidence regarding the formation of the pathway and especially when the commissioner could not find that the pathway had existed for the period claimed by the plaintiff ?” 7. The learned Senior Counsel Sri.K. Jayakumar appearing for the appellants pointed out that the courts below have erred both on facts and in law in coming to the conclusion that the plaintiff has succeeded in establishing the prescriptive right of easement over plaint B schedule pathway. According to the learned counsel even assuming that there is a pathway as alleged in the plaint, that will not be sufficient to give a decree unless it is established that he is using the same as a matter of right and for the statutory period. In the case on hand, evidence on these two S.A.No.313 of 2000 6 aspects are conspicuously absent. The testimony of P.W.1 is insufficient to prove the case of the plaintiff. Accordingly, it is contended that the judgment and decree of the lower courts are unsustainable. 8. The learned counsel appearing for the contesting respondent on the other hand pointed out that both the courts below have concurrently found that there does exist a pathway and the plaintiff has been using the same from 1951 onwards. The learned counsel went on to point out that at any rate, the courts below had found that the way had been used by the plaintiff for more than the statutory period and there is nothing to show that it was a permissive use. The learned counsel also drew attention of this court to the commissioner's report and pointed out that the existences of way is evident from the report. Though not relevant is a claim for prescriptive right, the non-existence of an alternate way, according to the learned counsel, may be an indication or corroborative item of S.A.No.313 of 2000 7 evidence to show that the plaintiff has been using the plaint B schedule pathway as a matter of right for the statutory period. No substantial question of law arises for consideration in the second appeal and it is only to be dismissed. 9. After going through the records and hearing the learned counsel on both sides, there seems to be considerable force in the submissions made by the learned counsel for the respondents. The existence of B schedule pathway in fact cannot be disputed. 10. The contention appears to be that there is no evidence to show that the plaintiff has been using the way as a matter of right for the required statutory period. 11. The plaintiff has been examined in this case as P.W.1. He would depose that he has used the plaint B schedule pathway since the year 1959. He had purchased the plaint A schedule property as per Ext.A1 document. P.W.2 is a person, who stated that the plaint B schedule S.A.No.313 of 2000 8 pathway has been in existence for the last 25 years. P.W.3 has also deposed before the court that the plaint B schedule pathway has been in existence for the last 30 years and more. Nothing has been brought out in their cross- examination to discredit their oral testimony. 12. The first defendant who has been examined in this case as D.W.1 had also admitted before the court that the plaintiff had started to use the plaint B schedule pathway about 8 years ago. He is still using the plaint B schedule pathway. Hence the evidence of D.W.1 indicates the existence of the plaint B schedule pathway. D.W.1 has admitted that the plaintiff has been using the plaint B schedule pathway for the last 8 years. 13. The commissioner report indicates that there does exist a way as alleged in the plaint though it is of varying width at different places. Commissioner report also stated that it appeared that the way has been used for transporting materials for a long time, but he is unable to S.A.No.313 of 2000 9 state the age of the way. 14. As rightly pointed out by the learned counsel for the respondents, the non-existence of an alternate way as mentioned in the Commissioner's report indicates that in all probability the plaintiff has been using the disputed way. Though in principle the existence or non-existence of an alternate way may not be a criterion to determine the prescriptive right of easement, it may indicate that the claim made by the plaintiff is true. As already noticed, the evidence of P.Ws.2 and 3, who are independent witnesses clearly show that the way has been in existence for a long time. There is nothing to show that they had any reason to depose against the defendants or to favour the plaintiff. In fact the only dispute is regarding the period of user. Even according to the defendants, the plaintiff has been using the way for atleast 8 years though he is in permissive use. The plaintiff has given evidence to the effect that he has been using the disputed way for ingress and egress to his S.A.No.313 of 2000 10 property for much more than the statutory period. The attempt from the side of the defendants was to show that by virtue of Exts.B1 and B2 no way as claimed can exist. But as observed earlier, the commission report is clear to the effect that there does exist a way as alleged in the plaint. For very cogent and convincing reasons, the courts below have chosen to accept the claim put forward by the plaintiff and found that the plaintiff has acquired prescriptive right of easement to use the disputed way. 15. Both the courts below have arrived at the respective conclusions based on appreciation of the evidence in the case and the materials on record. There is nothing to show that the findings are either perverse or unwarranted by the evidence adduced in the case. No substantial question of law arises for consideration in this second appeal. S.A.No.313 of 2000 11 The Second Appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE ln.