IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 SA.No. 765 of 2000() -------------------- AS.12/1995 of SUB COURT, THIRUVALLA OS.396/1991 of MUNSIFF COURT, THIRUVALLA .................... APPELLANT(S)/RESPONDENTS 1 & 3/PLAINTIFF 1 & 3: ---------------------------------------------------------------------------- 1. M.N.GOPALAN, KOOVOORMALAYIL VEEDU, KATTOOKARA MURI, THIRUVALLA VILLAGE. (DIED) 2. K.M.ABUBEKKAR, CHOORAKATTU VEEDU, KATTOOKARA MURI, THIRUVALLA VILLAE. ADDL. APPELLANTS IMPLEADED. 3. PONNAMMA GOPALAN, W/O. LATE M.N. GOPALAN, KOOVOORMALAYIL VEEDU, KATOOKARA MURI, THIRUVALLA VILLAGE. 4. M.G.JAYAPRAKASH, S/O. DO. DO. ADDL. APPELLANTS 3 AND 4 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED 1ST APPELLANT AS PER ORDER DATED 9.8.2002 IN C.M.P. 1476/2002. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN RESPONDENT(S) 1 & 2/ APPELLANTS/ DEFENDANTS 1 & 2: ---------------------------------------------------------------------------------- 1. SARAMMA GEORGE , PADANPADAVIL HOUSE, NO.XII/257, THIRUVALLA VILLAGE, THIRUVALLA TALUK. 2. K.V. GEORGE, PANDANAPADAVIL HOUSE, NO.XII/257, THIRUVA;;A VILLAGE, THIRUVALLA TALUK. 3. KUNJUKUNJU, KOVOORMALAYIL VEEDU, KATTOOKARA MURI, THIRUVALLA VILLAGE. 4. THIRUVALLA MUNICIPALTY REPRESENTED BY ITS SECRETARY, THIRUVALLA. THE NAME OF RESPONDENT NO.3 IS STRUCK OUT AT THE RISK OF THE APPELLANTS AS PER ORDER IN C.M.P.968/2002 DTD.12.6.2002. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R1&2 SRI P R VENKATESH FOR R4 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/06/2011, THE COURT ON 29/06/2011 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 765 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of June, 2011. JUDGMENT Plaintiffs 1 and 3 in O.S.396 of 1991, who had their suit dismissed by the lower appellate court are the appellants. 2. According to the plaintiffs, plaint A schedule property starts from the railway station road and runs southwards has a width in the beginning of 19 feet and then it narrows down to 14 ½ feet, then 10 feet upto a length of 165 feet and then to 5 feet. The plaintiffs are residing in the nearby properties. They used plaint A schedule way for access to the road on the northern side. The way is more than 50 years old. The plaintiffs claimed prescriptive right of easement over the same. According to the plaintiffs, the defendants, who are residing on the eastern side of this way tried to put up obstruction in the way making it difficult for the plaintiffs to make use of the way. The defendants S.A.765/2000. 2 have no right to dos so. It is alleged in the plaint that the act of defendants 1 and 2 were with the connivance of the third defendant. They therefore prayed for necessary reliefs. 3. Defendants 1 and 2 contested the suit and pointed out that there is no bona fides in the allegation against the defendants and the plaintiffs are not entitled to any relief. They claimed that for the purpose of taking vehicles to the property of defendants 1 and 2 from the railway station road, they purchased 3.625 cents of land having a width of 10 feet starting from the railway station road and making use of that property as a road for their private use. An extent of 76.12 cents with a building including the way stands in the name of defendants 1 and 2 as per two sale deeds obtained by them. A perusal of the documents will clearly show that the way forms part of their property. The plaintiffs have no manner of right to use any portion of the property of the defendants as a way. The defendants also referred to two earlier litigations, where in one of them figured as the plaintiff and the Municipality was S.A.765/2000. 3 the defendant. That suit was decreed in their favour. In the other suit, a person similarly situated like the plaintiffs in the present suit had claimed a right to use the way in question and that suit was dismissed. In the suit against the Municipality, one of the plaintiffs herein had figured as a witness against the present defendants. After having failed in their attempt to establish the right to use any portion of the defendants' property as a way, this is the third attempt being made to establish some sort of right over the property by the plaintiffs and others. On the basis of these contentions, they prayed for a dismissal of the suit. 4. The third defendant also filed a written statement pointing out that A schedule way is sloping towards south. In order to prevent soil erosion a cross bar is used to put up from 1976 onwards. However, defendants 1 and 2 have no manner of right to make any construction over the cross bar. It was also contended that the way is being used by the general public and it is the Municipal way. S.A.765/2000. 4 5. On the basis of the above pleadings, issues were raised by the trial court. Evidence consists of the testimony of P.Ws.1 to 4 and document marked as Ext.A1 from the side of the plaintiffs. The defendants had D.Ws. 1 to 3 examined and Exts.B1 to B11 marked. Ext.C1 is the commission report. The trial court on an evaluation of the evidence found that there does exist a way as alleged in the plaint and the plaintiffs have been successful in proving that they are entitled to use the way. Accordingly their claim for easement by prescription was declared and reliefs were granted to them. Defendants 1 and 2 carried the matter in appeal as A.S. 12 of 1995 before the Sub Court, Thiruvalla. The lower appellate court on a re-evaluation of the evidence found that the plaintiffs have miserably failed to establish their right and accordingly reversed the judgment and decree of the trial court and dismissed the suit. 6. Notice is seen issued on the following questions of law: S.A.765/2000. 5 “(a) When the defendants in a suit for declaration of prescriptive right of easement is proved to have purchased the servient tenement already burden with easement, would not the defendants hold the property subject to the rights of others attached to the property so purchased? (b) Does not the evidence in the case prove that the plaintiffs have been using the plaint A schedule property as a pathway peacefully, openly and without interruption and as of right for a period well over 20 years, entitling them to the declaration prayed for? (c) When it is proved that property over which the right of easement is claimed was being used as a pathway at the time of purchase, would not the purchaser be bound by the rights of the users of the pathway? (d) Whether on the facts and circumstances, defendants 1 and 2 could be heard to deny the rights of the plaintiffs when they themselves have been using the remaining width of the pathway along with Ext.B1property as access to their property?” S.A.765/2000. 6 7. Learned counsel appearing for the appellants very vehemently contended that the lower appellate court was not justified in reversing the decree of the trial court. Referring to Ext.C1 report, learned counsel pointed out that it can be easily seen that there does exist a way as alleged in the plaint and evidence is clear that they have been making use of that way for a long period. At any rate, according to learned counsel there is clear evidence to show that there was a narrow pathway earlier and probably defendants 1 and 2 might have widened the same by purchasing property nearby. But that does not make the way a private way. The lower appellate court, according to learned counsel, misdirected itself in evaluating the evidence in the case and the court was carried away by the decisions in the earlier suits. Learned counsel went on to point out that the plaintiffs in the present suit are not parties to the earlier suits and the decisions are not binding on them. Accordingly, it is pointed out that the judgment and decree of the lower appellate court are clearly unsustainable S.A.765/2000. 7 in law. 8. Learned counsel appearing for the respondents on the other hand pointed out that the lower appellate court has clearly analysed the pleadings and the evidence in the case and has come to the conclusion that the plaintiffs are not entitled to succeed. Referring to the point, it was contended that no dominant heritage is scheduled to the plaint. Though in one portion of the plaint, the plaintiffs claimed prescriptive right of easement, later it is termed as a public pathway. These two claims cannot co-exist. The plaintiffs are not sure of their right and in a suit claiming easement right, it is well established that pleadings have to be precise since the claim made is a precarious one. When the Municipality, the third defendant, attempted to lay pipes through the alleged pathway, the plaintiffs were constrained to file O.S.240 of 1978 against the Municipality. In that suit, for the Municipality one of the witnesses was the first plaintiff herein. Though the trial court dismissed the suit, in appeal, decree was granted in favour of the plaintiffs, who S.A.765/2000. 8 are defendants 1 an 2 in the present suit, holding that the Municipality had no authority to lay pipes through the property which exclusively belonged to the defendants. Thereafter one of the witnesses who had spoken for the Municipality in O.S.240 of 1978 instituted O.S.89 of 1982 asserting the same claim as in the present suit over the same pathway. That was dismissed. Learned counsel for the respondents pointed out that repeated attempts are being made to somehow establish a right of way through the property exclusively owned and possessed by defendants 1 and 2. Learned counsel pointed out that there was no error in the lower appellate court referring to the earlier decisions since the subject matter was same though the parties might be different. It was therefore contended that no grounds are made out to interfere with the judgment and decree of the lower appellate court. 9. The main contention of the defendants was that there was no way as alleged in the plaint. They also contended that the cross bar which is now taken objection to S.A.765/2000. 9 was there even earlier and it was put up by them. That is evident from the written statement of the third defendant which mentions that cross bar is necessary to prevent soil erosion. Their only contention is that defendants 1 and 2 are not entitled to put up any construction on the cross bar. There is nothing as of now to indicate that defendants 1 and 2 are making any attempt to put up constructions over the cross bar which is already in existence. So that the claim of the plaintiffs that cross bar was put up for the first time in 1991 cannot be countenanced. 10. One may now refer to the pleadings in the case. In the plaint in paragraph 5 the ingredients necessary to attract prescriptive right of easement are pleaded. It is also claimed that the way has been in use for over 50 years. On the other hand in paragraph 7 what is stated is that the way is being maintained by the Municipality and water taps, street lights, pipes etc., are put up in A schedule way. It is also averred that when defendants 1 and 2 tried to obstruct the way a complaint was preferred before the R.D.O. and S.A.765/2000. 10 defendants 1 and 2 were restrained from committing any mischief in the way. As rightly pointed out by the learned counsel for the respondents, while prescriptive right of easement is claimed in one portion of the plaint, in the other portion of the plaint it is pointed out that plaint A schedule pathway is a public way and it is vested in the Municipality. The Municipality in its written statement also supports the same and it is here that the decree in O.S.240 of 1978 assumes importance. That was a suit filed by defendants 1 and 2 in this suit against the Municipality when the Municipality attempted to lay pipes through the way. Though the suit was initially dismissed, it was decreed by the lower appellate court accepting the rights claimed by the plaintiffs in the suit. 11. It is true that the plaintiffs were not parties to the said suit and technically they may not be bound by the same. But one cannot omit to note that the first plaintiff in the present case was a witness in the said case for the Municipality and thus he was fully aware of the dispute and S.A.765/2000. 11 the nature of claim put forward by defendants 1 and 2 in this case. 12. A perusal of Ext.C1 report does indicate the existence of a way. But defendants 1 and 2 have produced the report and plan in the earlier suit, i.e. O.S.240 of 1978, which is marked in this case as Ext.B11. Much criticism was levelled by the learned counsel for the appellants against the lower appellate court for having relied on the said document. 13. It is to be noted that the Commissioner, who prepared Ext.C1 has been examined in the case and he has spoken to about the various matters contained in his report and plan. In Exts.B10 and B11 3.625 cents, which is claimed in the present suit also is identified as JICDK. The lower appellate court has noticed that the pathway is bounded on all sides with well defined boundaries so there is no question of widening or decreasing the width of the pathway. Even though O.S.240 of 1978 may not be as such conclusive and binding, it cannot be ignored. S.A.765/2000. 12 14. The reason given by the lower appellate court that since the appellants before it had purchased the property only in 1976, the requisite statutory period of user has not been satisfied may not be correct. The claim of the plaintiffs was that even before the defendants purchased the property, they were using plaint A schedule pathway. If as a matter of fact it was so, then the property was already burdened when defendants 1 and 2 purchased and they have to take the burden with the property which the plaintiffs have been successful in establishing that they have prescriptive right of easement to use the way. 15. Significantly enough the dominant tenaments are not scheduled to the plaint. All that is stated is that the plaintiffs are residing on the southern side of the plaint schedule pathway. So also they have no consistent case. While in one portion they have stated that they have prescriptive right of easement, in another portion it is stated that it is a public way. One may refer to the evidence of P.W.1 in this regard. Even though P.W.1 would say that S.A.765/2000. 13 there is an electric post, water supply pipe etc. running through the property, he was not able to prove the said fact. He had admitted in his cross examination that water supply pipe said to be laid in the property does not carry water to his property. The defendants have a case that the electric posts, water connection, water supply pipe etc are laid immediately on the eastern side of A schedule property for the purpose of supply to them. P.W.1 in no less terms say that A schedule property is a public way used by the public of the locality. 16. P.W.2 in his deposition admits that there is a level difference between plaint A and B schedule property. He has stated that Kayyala on the eastern side is made very recently. 17. P.W.3 in his evidence says that the way slopes from north to south and that a cross bar had already been put up long ago. 18. P.W.4 says that plaint A schedule is a public pathway. S.A.765/2000. 14 19. In the absence of any dominant tenement shown in the plaint, the fact that the plaintiffs themselves admits that it is a public pathway and also the judgment and decree in the earlier case clearly show that the claim of prescriptive right of easement cannot be countenanced. Prescriptive right of easement and public way cannot co-exist. If it is a public way, it must vest with the local authority. Even though the local authority tried to assert its right over the way, it failed in its attempt as would be discernible from Exts.B3 and B4 wherein a decree was passed against them in a suit filed by defendants 1 and 2 in this case. It is under these circumstances, the lower appellate court was persuaded to take the view that the plaintiffs are not successful in establishing their right over plaint A schedule property. The lower appellate court has correctly appreciated the evidence in the case and has come to the right conclusion that the plaintiffs are not entitled to any relief since they have not established the claims pleaded by them. Merely because there does exist a way, S.A.765/2000. 15 that may not entitle the plaintiffs to assert a right to use that way. The defendants have specifically contended that 3.625 cents was purchased by them for providing a way to their house and there is nothing to show that the plaint schedule as disclosed in the plaint was ever used as a way by the public of the locality as claimed by the plaintiffs now. At any rate, the ingredients necessary to attract prescriptive right of easement and necessary materials are clearly absent in the case on hand. In the result, no grounds are made out to interfere with the impugned judgment and decree and this appeal is without any merits. It is accordingly dismissed. However, there will be no order as to costs. P. BHAVADASAN, JUDGE sb.