IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 SA.No. 889 of 2000(E) --------------------- AS.308/1996 of ADDL.DISTRICT COURT, THRISSUR OS.48/1994 of MUNSIFF COURT,CHAVAKKAD .................... APPELLANT/APPELLANT/FIRST DEFENDANT ----------------------------------------------------------------- HASSANKUTTY, S/O.VALIYAKATH THYVALAPPIL KUNHIMON MANATHALA AMSOM DESOM, CHAVAKKAD TALUK BY ADV. SRI.K.RAMACHANDRAN SRI.P.K.YUSUFF ISSUDDIN SRI.N.S.MOHANDAS RESPONDENTS/RESPONDENTS/PLAINTIFFS 1 TO 6 AND 2ND DEFENDANT --------------------------------------------------------------------------------------------------------- 1. KRISHNAN , SON OF NARIAMBULLI THUPRAN, MANATHALA AMSOM DESOM, CHAVAKKAD TALUK 2. LEELA, W/O.NARIYAMBULLI LATE GOPALAN -DO- 3. LEEBA, D/O.NARIYAMBULLI LATE GOPALAN -DO- 4. MINOR LISHA, -DO- REP BY HER GUARDIAN 2ND RESPONDENT LEELA 5. MINOR ANEESH S/O.NARIYAMBULLI LATE GOPALAN -DO- REP BY HER GUARDIAN 2ND RESPONDENT LEELA 6. ABOO BACKER, S/O.VALIYAKATH THYVALAPPIL KUNHUMON MAMATHALA AMSOM DESOM, CHAVAKKAD TALUK ADV. SRI.P.VIJAYA BHANU FOR R1 TO 5 SRI.T.A.UNNIKRISHNAN FOR R1 TO R5 SRI.T.A.RAJAGOPALAN FOR R6 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- SA No.889 of 2000-E ------------------------------------- Dated this the 18th day of October 2011 Judgment Disappointed defendants, who suffered a decree at the hands of both the courts below, are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. Plaint Item Nos.1 and 2 belong to the plaintiffs, who obtained it from their predecessor-in- interest under Exts.A1 and A2. Plaint B schedule is a pathway, which, according to the plaintiffs, has been set apart by them for their exclusive use. The first plaintiff is residing in plaint A schedule Item No.2 property and the second plaintiff in Item No.1. It is alleged that the defendants, who are residing on the eastern side of the pathway have no manner of right to use the B schedule pathway. Recently, when the pathway was widened by SA 889/00 2 the plaintiffs, the defendants wanted the plaintiffs to give consent to them to use the pathway. The plaintiffs were not amenable to such a course. The defendants thereafter pulled down the fencing on the northern side and tried to lay a pathway in continuation to plaint B schedule pathway. The timely intervention of the plaintiffs prevented the defendants from being successful in their attempt. Apprehending further trouble from the defendants, the suit was laid. 3. The first defendant filed a written statement, pointing out that plaint B schedule pathway does not belong exclusively to the plaintiffs as claimed by them. He had purchased the property in which he resides, in 1967 and thereafter, he has been using the B schedule pathway. He has been taking vehicles through the said pathway and he has acquired easement by grant to use the pathway. He therefore, SA 889/00 3 prayed for dismissal of the suit. 4. It appears that during the pendency of the suit, the second plaintiff died and his legal heirs have been brought on the party array as supplemental plaintiffs 3 to 6. On the above pleadings, necessary issues were framed by the trial court. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A3 from the side of the plaintiffs. The defendants had DW1 examined and no exhibits were marked. Exts.C1 and C2 are the commissioner's report and plan. 5. The trial court on an appreciation of the evidence in the case, found that the defendants have miserably failed to establish the plea of easement by grant and dismissed the suit. 6. The first defendant carried the matter in appeal as AS No.308/96 before the District Court, SA 889/00 4 Thrissur. Before the lower appellate court, he filed two applications namely IA Nos.2372/99 seeking to have a few persons who had filed affidavits before the trial court, examined before the lower appellate court and 525/00 seeking to have the written statement amended to incorporate the plea of prescriptive right of easement over plaint B schedule pathway. 7. The lower appellate court considered the materials before it and came to a conclusion that there is no reason to interfere with the judgment and decree of the lower appellate court. Holding that IA No.2372/99 was highly belated, it was dismissed. So was IA No.525/00. Thus, the decree of the trial court stood confirmed. Hence the second appeal. 8. Notice is seen issued on the following questions of law raised in the second appeal : 1.Were the courts below justified in rejecting the SA 889/00 5 easementary right regarding plaint B schedule way as claimed by the defendants ? 2.Did not the court below err in finding of an alternate way for the defendants without pleading and proof ? 3.Was the court below justified in rejecting IA No.2372/99 and IA No.525/00 filed in the appeal ? 4.Were the courts below justified in decreeing the suit ? 9. The learned counsel for the appellant pointed out that in all fairness, the first defendant ought to have been given an opportunity to amend the written statement and establish his claim for prescriptive right of easement. The reasons given to reject IA No.525/00 are not sustainable in law. The reason given to dismiss IA No.2372/99 is also not justifiable. The defendants had been using the B schedule pathway from 1967 onwards. The learned counsel also pointed out that in fact, the plaintiffs had produced Ext.A3 to show that the SA 889/00 6 defendants have other means of access to their property. The commissioner's report does not specify any such pathway. Of course, the commissioner's report does show the steps to one Gopalan's house. But, no way as such is mentioned running through the property of the said Gopalan. The learned counsel for the appellants also pointed out that the trial court has correctly appreciated and understood the facts while the lower appellate court may not be correct in that regard. The learned counsel submitted that an opportunity ought to have been given to the defendants to substantiate their claim. 10. The learned counsel for the respondents pointed out that going by Ext.A3, it can be seen that the defendants have got other means of access. Attention was drawn to the fact that the specific plea in the written statement was one of easement by grant, the SA 889/00 7 defendants had miserably failed to establish the said plea. It is also pointed out that at no point of time, the defendants had used plaint B schedule pathway and that belonged exclusively to the plaintiffs. Drawing attention to the averments in the plaint, it was pointed out that the way leading to the house of the defendants was a recently laid pathway and it was that act of the defendants which had given rise to the suit. After having contended for the position that they have a right of easement by grant, they at a later stage, cannot contend that they have got prescriptive right to use the pathway. The learned counsel therefore, contended that the lower appellate court was fully justified in declining to allow the amendment and the findings of the lower appellate court do not call for any interference. SA 889/00 8 11. Plaint A schedule item Nos.1 and 2 belong to the plaintiffs. There is no dispute regarding the said fact. There is a pathway shown as plaint B schedule which starts from the National Highway on the western side and runs towards the east and enters into the property of the first plaintiff. There are two other residents in between the houses of the plaintiffs. They are also using the pathway in question as per the permission granted by the plaintiffs. 12. It will be useful to refer to the commissioner's report to understand the issue involved in the suit. The commissioner has identified plaint A and B schedule properties. As per the commissioner's report, the way branches into two, one going into the property of the plaintiff and the other running into the property of the defendants and leading to his house. The commissioner has also noticed that there is an SA 889/00 9 opening on the eastern boundary of the defendants' property and that on the eastern side of the defendants' property is the property of Gopalan. On the eastern side of Gopalan's property, there are steps to lead to the main road. 13. It is true that the defendants have pleaded easement by grant in respect of plaint B schedule pathway. They failed to prove either express or impress grant so as to make use of the way as contended by them. Realising the fault they made, they sought for an amendment by filing IA No.525/00 before the lower appellate court. They wanted to amend the written statement incorporating the plea that they had acquired prescriptive right of easement to use plaint B schedule pathway. They also wanted to examine two persons who had filed affidavits before the trial court in support of the case pleaded by them. While IA No.2372/99 was SA 889/00 10 dismissed for delay, IA No.525/00 was dismissed on the ground that even if it is allowed, it will not improve the case of the defendants. It is difficult to agree with the reasons given by the lower appellate court to reject the amendment application. Even in the original written statement filed by the defendants, they had pointed out that they had acquired the property in 1967 and eversince then, they have been using the pathway in question and what was pleaded was easement by grant which they had failed to establish. 14. Ext.A3 which is the document of title of the defendants shows three ways which they could use. The commissioner's report and plan does not show any one of these ways. The lower appellate court finds fault with the defendants for not asking the commissioner to ascertain the age of the pathway. One should remember that the plaintiffs have a case that the SA 889/00 11 pathway leading to the property of the defendants in continuation of B schedule pathway was cut open by them on the previous day of filing the suit i.e., on 25.01.1994. The suit was laid on 26.01.1994 and the commissioner visited the property on 27.1.1994. On going through the commissioner's report, it does not mention that the way shown as GF is a recently laid pathway. 15. The view taken by the lower appellate court that since the defendants have elected to claim easement by grant, they are estopped from making a further claim that they have got a right of easement by prescription, cannot be accepted. In the trial court, the only plea was one of easement by grant. There was no question of election at that point of time. Only if the amendment is allowed and further evidence is allowed to be adduced, the question of election would arise. SA 889/00 12 Merely because easement by grant was initially raised, it cannot be said that at a later stage, the prescriptive right of easement cannot be claimed. What is the impact of such inconsistent pleas, is a different matter to be considered. The defendants had sought to amend the written statement and the reason given by the lower appellate court to reject the amendment application does not seem to be proper. In the light of the commissioner's report which shows the extension of the way leading to the house of the defendants as of now, there is nothing to show that it was a newly laid way as alleged by the plaintiffs. Therefore, it is felt that an opportunity needs to be given to the defendants to amend their written statement so as to substantiate their case. SA 889/00 13 16. It is also significant to notice that no other way is shown by the commissioner which can be used as a matter of right by the defendants. Even though it is mentioned that there is an opening on the eastern boundary of the defendants' property, the commissioner does not mention any such way running through the property of Gopalan except to say that there are steps on the eastern boundary of B schedule property opening to the road on the eastern side. These aspects have a bearing on the issues involved in this case. It is therefore, felt that the lower appellate court was not justified in dismissing IA Nos.2372/99 and 525/00. An opportunity ought to have been given to the defendants to amend the written statement and they ought to have been permitted to adduce evidence to substantiate their plea of prescriptive right of easement. Moreover, no particular harm will be caused to the plaintiffs by doing SA 889/00 14 so. If at all any injury is likely to be caused, it could be compensated by awarding costs. In the result, this second appeal is allowed. The judgments and decree of the courts below are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what is mentioned above. IA No.525/00 is allowed. The defendants are allowed to carry out the amendment in the trial court. The parties may be given an opportunity to adduce further evidence if they so choose. However, it is felt that injury caused to the plaintiffs by allowing the amendment application can be compensated by awarding costs. Accordingly, the defendants are directed to pay a sum of Rs.5,000/- (Rupees Five Thousand only) to the counsel for the respondents appearing before this court, within two weeks from today. The parties shall appear before the SA 889/00 15 trial court on 19.11.2011. The trial court may make every endeavour to dispose of the suit as expeditiously as possible, at any rate, within six months from the date of appearance of parties before it. P.Bhavadasan, Judge Counsel for respondents 1 to 5 (plaintiffs in the trial court) filed memo vide c.f.No.6476/11 acknowledging receipt of cost of Rs.5,000/- (Rupees five thousand only) from the counsel for the appellant within the stipulated time. Registrar (Judicial) sta SA 889/00 16