IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 SA.No. 677 of 2000(E) --------------------- AS.57/1998 of II ADDL.SUB COURT,ERNAKULAM OS.1326/1991 of II ADDL.M.C., ERNAKULAM .................... APPELLANT(S)/APPELLANTS/DEFEDANTS 1 TO 4: --------------------------------------------------------------------- 1. BHASKARAN, S/O. SANKU, AGED 58 YEARS, CHULLIKKATTU HOUSE, UDAYAMPEROOR, MANAKUNNAM VILLAGE. 2. SAJEEVAN, S/O. BHASKARAN, AGED 30, CHULLIKKATTU HOUSE, UDAYAMPEROOR, MANAKUNNAM VILLAGE. 3. AJITH, S/O. BHASKARAN, AGED 27, CHIULLIKKATTU HOUSE, UDAYAMPEROOR, MANAKUNNAM VILLAGE. 4. MRS. BHAANI, W/O. BHASKARAN, AGED 56 YEARS, CHULLIKKATTU HOUSE, UDAYAMPEROOR, MANAKUNNAM VILLAGE. BY ADV. SRI.G.S.REGHUNATH SRI.STEPHEN JOY IDICULLA RESPONDENT(S)/RESPONDENTS/PLAINTIFF & 5TH DEFENDANT: ------------------------------------------------------------------------------------------ 1. PARAMESHWARAN, S/O. SANKU, AGED 67 YEARS, KARIVELIPPARAMBU, MANAKKUNNAM VILLAGE, UDAYAMPEROOR. 2. SUB INSPECTOR OF POLICE, HILL PALACE POLICE STATION, TRIPPUNITHURA. ADV. SRI.C.S.MANU FOR R1 SRI.S.K.PREMRAJ FOR R1 GOVT. PLEADER SRI. P.K.RAVIKRISHNAN FOR R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/09/2011, THE COURT ON 11/10/2011 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 677 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of October, 2011. JUDGMENT The defendants in O.S.1326 of 1991 before the Munsiff's court, Ernakulam, who suffered a decree are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff claimed to have obtained plaint schedule property as per Ext.A1 dated 27.2.1962 and thereafter claims to have put up a residential building therein. He is residing in the said house. The first defendant is the brother of the plaintiff and he owns property on the southern side of the plaint schedule property. The property of the first defendant had an extent of 1 acre 18 cents and the other defendants are his wife and children. After taking up residence in the property, the first defendant wanted the plaintiff to provide a way which he declined. The first defendant S.A.677/2000. 2 then wanted the plaintiff to sell a portion of his property so as to have a convenient way to take his vehicle. That was also declined by the plaintiff. According to the plaintiff, the defendant threatened to trespass into the plaint schedule property and cut open a way through his property. The defendants, who are very influential may succeed in their attempt and the plaintiff had no other remedy other than to approach the court. 3. The defendants resisted the suit. They denied the allegations in the plaint. According to them, the attempt of the plaintiff is to cut off the way which was enjoyed by the defendants through the property of the plaintiff, which is the sole means of access to their property. Before the plaintiff purchased the plaint schedule property, the plaintiff, the first defendant and their brother Raman were residing at the tarwad house on the southern side of the first defendant's residential compound. They used to walk along the eastern side of the plaint schedule property and enter into another pathway which lies east-west leading to Vaikom-Ernakulam S.A.677/2000. 3 main road. The pathway runs along the northern boundary of the plaint schedule property and starts from Vaikom-Ernakulam main road on the east and ends on the eastern side of the padasekharan, which lies immediately on the western side of the plaint schedule property. The defendants have narrated in detail the origin, continuance and existence of the way running through the property of the plaintiff and their complaint was that the plaintiff has adopted a dubious method to deprive them of the pathway, which they have been using and over which they acquired prescriptive right of easement. According to them, the pathway had a width of 8 feet and had been in continuous use for a long time. On the basis of these contentions, they prayed for a dismissal of the suit. 4. Based on the above pleadings issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 to 5 and documents marked as Exts. A1 to A5 from the side of the plaintiff. The defendants had D.Ws.1 to 8 examined and Exts.B1 to B4 marked. Exts.C1, S.A.677/2000. 4 C2 and C2(a) are commission reports and plan. Exts.X1 and X2 are third party exhibits. On an appreciation of the evidence in the case, the trial court came to the conclusion that the defendants have miserably failed to establish the claim of prescriptive right of easement to use any portion of the property as a pathway and decreed the suit. The disappointed defendants carried the matter in appeal as A.S.57 of 1998. The lower appellate court on an independent evaluation of the evidence reached an identical conclusion as that of the trial court and dismissed the appeal. That brings the defendants before this court. 5. Notice is seen issued on the following questions of law: “a) When the defendant has proved the existence of a way through plaint schedule property on the date of filing the suit. Can the plaintiff be granted a decree of injunction even if the easement right claimed by the defendant is an incohate right? S.A.677/2000. 5 b) Is not the defendant entitled to resist the suit for injunction on the strength of incohate easement right? c) If the plaintiff has not stated the alleged dates of attempts to cut open a way through plaint schedule property in the cause of action column of the plaint and has given a different date in the cause of action column, can the court hold that the plaintiff is entitled to get a decree of injunction restraining the defendants from cutting open a way through plaint schedule property. d) Has not the lower court misinterpreted the recitals in the commission report? e) If the property of the defendant was originally a part of a larger property comprising plaint schedule property also and if the defendants and plaintiff were using plaint schedule for access to the public road. Are not the defendants entitled to claim easement of necessity or quash easement of necessity for a way through plaint schedule property? f) Can the existence of a paddy field belonging to several persons on the side of S.A.677/2000. 6 defendant's property. Which remains submerged in water during rainy season, be treated as an alternate way for access to defendants property? g) Are not the lower courts bound to accept the oral evidence adduced in support of the prescriptive easement right pleaded in the written statement? h) Can the courts below reject the easement right by prescription claimed in the written statement on the ground that documents are not produced to prove the same? i) Is the lower court justified in granting a decree for injunction restraining the defendants from using the plaint schedule property as a way when the existence of the way on the date of suit is proved.” 6. Learned counsel appearing for the appellants pointed out that the court below has wrongly cast the burden on the defendants and that had resulted in a wrong decree being passed. The suit was one for injunction and the burden was on the plaintiff to prove his exclusive possession over the suit property. Even assuming that the defendants had failed to set up the case pleaded by them, S.A.677/2000. 7 that does not enable the plaintiff to get a decree automatically. Learned counsel for the appellant complained that the appreciation of the evidence made by the courts below are perverse and at any rate the lower courts ought to have seen that injunction being an equitable remedy, the plaintiff was not entitled to the reliefs as a result of his own conduct in filing the suit conceding materials facts. The allegations in the plaint can be found to be untrue on an appreciation of the evidence in the case and the cause of action has not been properly proved. It is also evident from a scrutiny of the evidence that the alleged trespass is false and there was a way in existence running through the property of the plaintiff. Learned counsel also pointed out that the view of the courts below that since the defendants have alternate means of access to their property, their claim cannot succeed is erroneous. Learned counsel drew the attention of this court to the fact that the definite stand of the defendants was that they had acquired a prescriptive right of easement to use the pathway running S.A.677/2000. 8 through the northern side of the plaint schedule property and if that be so, the existence of an alternate pathway was totally irrelevant. These vital aspects have been omitted to be noticed by the courts below and according to learned counsel that had resulted in miscarriage of justice. 7. Per contra, learned counsel appearing for the respondents pointed out that both the courts below have considered the pleading and evidence on record and have come to the conclusion that the defendants have not been able to establish any manner of right to use any portion of the plaint schedule property to gain access to the property of the defendants. The definite plea taken by the defendant was that they had prescriptive right of easement to use the pathway alleged to have been running through the property of the plaintiff, which was found to be false. Even assuming that the so-called alleged trespass is not proved, that by itself is not a ground to decline relief to the plaintiff. So long as it is clear from the attitude of the defendants that they were claiming right to use the plaint schedule property as a S.A.677/2000. 9 means of access, the apprehended threat was a reality. It was for the defendants to establish the right claimed by them and when they fail to do so, it follows that the plaintiff is entitled to the relief. Learned counsel for the appellants went on to point out that the findings of the courts are findings on fact and based on evidence and no substantial question of law arises for consideration in this Second Appeal and it is only to be dismissed. 8. There is no dispute regarding the fact that the plaint schedule property belongs exclusively to the plaintiff. The first defendant is none other than the brother of the plaintiff. It is an admitted case that the first defendant owns property on the southern side of the plaint schedule property and he resides therein with his family. The case put forward by the plaintiff is that the first defendant wanted the plaintiff to provide a way through his property, to which he was not amenable and that had infuriated the first defendant and he threatened that he will cut open a way through the property of the plaintiff. The defendants had resisted the suit by S.A.677/2000. 10 pointing out that there was a way in existence running through the property of the plaintiff, which the defendants and their predecessors-in-interest have been using for a long time as a matter of right continuously and uninterruptedly and thereby they have acquired prescriptive right of easement to use the way. Both the courts below found against the defendants. Normally this court will be extremely reluctant to interfere with a concurrent finding of fact entered into by the courts below. 9. But it was very vehemently argued on behalf of the appellant that both the courts below have misdirected themselves on facts and in law in casting the burden on the defendants. Recalling the contentions of the learned counsel for the appellants, the main point urged is that when it is shown that the plaintiff has not come to court with clean hands, the mere fact that the defendants have failed to establish their plea is not a ground to grant relief to the plaintiff. In order to understand the contention and the true purport of the contention raised by the learned counsel for S.A.677/2000. 11 the appellant, it became necessary to go into the evidence and therefore counsel on either side were permitted by this court to refer to the evidence in this case. 10. Much emphasis was lain on Exts.C1 and C2 commission report. Ext.C1 commission report is the report prepared by the commissioner as on the date of the suit and drawn up on an application made by the plaintiff himself. In paragraph 4 of the said report, the existence of the pathway is made mention of as running through the plaint schedule property. It is also mentioned therein that the said pathway is being used by the plaintiff and defendants only. It is further stated in the commissioner's report that mud mounts put up along the pathway are seen levelled recently. A gate at one of the ends was seen pulled down recently. Later the Commissioner was again asked to inspect the property after notice to both sides and Ext.C2 report and Ext.C2(a) plan were drawn up. According to Ext.C2 report there is a beaten track in the plaint schedule property having a width of 70 cms. It makes mention of parapet S.A.677/2000. 12 walls in the defendants' property. The report also mentions that a space of 2.12 meters is left between the parapet walls on either side that is on the eastern and western sides of the defendant's property. The width of the space left between the parapet walls between the commission report corresponds to the opening on the northern boundary of the defendant's property. The commission report also makes mention of the fact that the defendant's residential building faces north. The commission report does mention that there is a pathway along the eastern boundary of the plaint schedule property and on either side of the pathway bushes are seen. Ext.C2 is the sketch prepared by the commissioner. 11. The commissioner was examined as P.W.2. He says about the existence of the way and its use by the plaintiff and defendants. He also says that the house of the defendants faces north. He also says that he had reached the house of the defendants through the way which was running towards south from the north-eastern corner of the S.A.677/2000. 13 plaintiff's property. He had in no less terms stated that the way running north-south ends on the northern side of the property of the first defendant. He would say that he was unable to give the age of the way. He also says that that is the only means of access to the defendant's property. Thereafter he says that there is another means of access to the property of the defendants through the ridges on the western side. His further evidence is to the effect that the paddy field on the western side of the defendants' property situate 2-3 feet below the property of the defendants. The first defendant has given evidence in terms of his written statement as D.W.1. D.W.2 is a casual labourer, who claims to have worked for the defendants and says that he used to go to the house of the first defendant using the way running through the property of the plaintiff and the said way had 8 feet width. D.W.3 is a nearby resident. He too is a casual labourer by profession. He also would depose that he had worked for the defendants and he used to go to the house of the defendants using the way running through the plaint S.A.677/2000. 14 schedule property. D.W.4 is the brother of the plaintiff and the first defendant. He also speaks about the existence of the way and its use by the members of the family. But it has brought out in cross examination that there is a dispute pending between the plaintiff and D.W.4. D.W.5 is a close relative of both the parties and he speaks about the way. D.W.6 is a newspaper distributor and D.W.7 is the commissioner who had prepared Exts.C2 and C2(a) report and plan. He gives evidence in detail with reference to his report and says about the way. His evidence is to the effect that the alternate way suggested through the chira and lands of other persons and that the defendants will have to cross canals to reach the main road on the western side. D.W.8 is the Member of Panchayat, who speaks about the way. 12. Learned counsel appearing for the appellant based on the evidence contended that the courts below were not justified in declining to grant relief to the defendants. There was no reason to disbelieve the evidence S.A.677/2000. 15 of D.Ws.3, 4, 5, 6 and 8. The evidence of these witnesses taken along with the commissioner's report, according to learned counsel, is sufficient to show their does exist a way and it was being used by the defendants and others. Learned counsel went on to point out that even assuming that prescriptive right of easement as such is not proved, still as long as the existence of the way is established, the defendant is entitled to continue his use and relief should have been declined to the plaintiff. In support of his contention, learned counsel relied on the decision reported in Narayanan Nair v. Mariamma Kurian (1988(2) K.L.T.486). Reference was also made to the decision reported in Krisha Pillai v. Kunjupillai (1990(1) K.L.T. 136) wherein it was held that even assuming that the defendant was unable to establish a right of way, but if the plaintiff approaches the court with false facts, he is not entitled to any relief. 13. There can be little doubt that there does exist a way running through the plaint schedule property. Of S.A.677/2000. 16 course, the width is in dispute. While the first defendant and his witnesses would depose that the width of the pathway running through the property of the plaintiff is having a width of 8 feet, the commission report shows that it has only a width of 70 cms. Evidence shows that the properties belonged to a common ancestor and also the tarwad house of the plaintiff and first defendant situates on the southern side. There is evidence to show that the members of the tarwad house used to walk through the plaint schedule property to reach the road on the north. D.W.4, who is the brother of the plaintiff and first defendant, resides in the tarwad house now. The case of the plaintiff is that the defendant has a pathway along the western side of his property. One cannot omit to notice that the property on the western side is lower than the property of the defendant. Then he has to go along the ridges and also to cross the thodu to reach the panchayat road on the western side. S.A.677/2000. 17 14. P.W.1 has given evidence to the effect that on 13.10.1991 and 14.10.1991 the first defendant and his associates tried to cut open a pathway through the plaint schedule property. The cause of action is seen stated as 6.10.1991. He speaks about a police officer coming to the place and tried to settle the matter. He would also depose that the first defendant wanted him to provide a way through his property, to which he was not amenable. His version is that the commissioner reached the house of the first defendant through the way available on the western side of the property of the first defendant. This ofcourse is falsified by the commissioner's evidence which shows that the commissioner had reached the first defendant's property making use of the way running through the plaint schedule property. 15. It is significant to notice that the nature of claim put forward by the first defendant is one of prescriptive right of easement and not easement of necessity. There is no claim of easement by grant also. S.A.677/2000. 18 Being a claim by easement by prescription as rightly pointed out by the learned counsel for the appellant, the existence or non-existence of an alternate way is not very material. Probably absence of any alternate way may go in favour of the defendants, but that by itself is not decisive. 16. True, in the decision reported in Narayanan Nair v. Mariamma Kurian (1988(2) K.L.T. 486) the issue considered was whether prescriptive right of easement could be proved only by the evidence of the owners or possessors of the dominent or servient heritage of persons who had occasion to use the way. The question of existence or non- existence of way was also considered. It was held in the said decision that it is not an invariable rule that successive users of the way will have to be examined to establish the claim, and as regards the existence of alternate way, it was observed as follows: “Even otherwise in considering the prescriptive right, the availability of another access is only of ratiocinative and in the appreciation of evidence.” S.A.677/2000. 19 Relying on the decision reported in Chinnasami Goundan v. A.S.Balasundara Mudaliar (AIR 1934 Madras 575) the court went on to narrate that in certain cases incohate rights also have to be protected. 17. In the decision reported in Krishna Pillai v. Kunjupillai (1990(1) K.L.T. 136) the issue considered was whether when the defendant fails to establish the right of way claimed by him, the plaintiff is entitled to relief automatically. That was a case where the plaintiff approached the court with the complaint that the defendants were trying to trespass into his property and that may be prevented. The defendants resisted the suit by pointing out that there was a way running through the property of the plaintiff and they were using the same. However, the defendants were unable to establish their claim. The contention taken in the said case was that if the defendants wanted to succeed in a claim for prescriptive right of easement, they will have to file a separate suit or prefer a counter claim in the said suit to establish the same. S.A.677/2000. 20 It was held that it was not necessary that in all cases of injunction a counter claim has to be preferred to establish the right claimed by the defendant. If on the other hand pleading and evidence are incorrect, the plaintiff has to establish his case and the fact that the defendants have not established their case by itself is not a ground to grant relief to the plaintiff. 18. A reading of the above decisions will indicate that they can have no application to the facts of the present case. One significant fact has to be noticed in the present case. The trial court on an earlier occasion dismissed the suit. The defendants had carried the matter in appeal. It appears that a fervent plea was made at the appellate stage that the suit may be remanded to the trial court to enable the defendants to examine their predecessor in interest who had used the way running through the plaint schedule property to establish their claim of prescriptive right of easement. Strangely enough after the remand, there was no attempt from the side of the defendants at all to S.A.677/2000. 21 examine any one of the predecessors in interest to establish the plea they sought to sustain. It would appear that no further evidence was adduced after remand. This aspect has been taken notice of by both the courts below in evaluating the evidence available in the case and appreciating the rival contentions. 19. Both the courts below have concurrently found that the defendants have miserably failed to establish the necessary ingredients to attract Section 15 of the Indian Easements Act. Even assuming that an alternate way as suggested by the plaintiff may not be convenient or suitable to the defendants, since the defence is one of prescriptive right of easement, it is for the defendants to establish their claim. May be that the defendants had for a