IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 RSA.No. 224 of 2004() --------------------- AS.128/1996 of ADDL. DISTRICT COURT, THALASSERY OS.216/1993 of MUNSIFF COURT, THALASSERY .................... APPELLANT/RESPONDENT/DEFENDANT ----------------------------------------------------------- M.P.RAMACHANDRAN, S/O.NANU, TEACHER DHARMADOM AMSOM, PALAYAD DESOM, THALASSERRY. BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE SRI.K.MOHANA KANNAN SRI.T.P.SAJID (THALASSERY) RESPONDENT(S): APPELLANTS/PLAINTIFFS ----------------------------------------------------------------- 1. MADATHIL RADHA, D/O.RAMAN NO OCCUPATION DHARMADOM AMSOM, PALAYAD DESOM, THALASSERRY. 2. MADATHIL SARASWATHI, D/O..RAMAN, NO OCCUPATION, DHARAMDOM AMSOM, PALAYAD DESOM. THALASSERRY. 3. MADATHIL PADMANABHAN, S/O.RAMAN, NO OCCUPATION, DHARAMADOM AMSOM, PALAYAD DESOM, THALASSERRY. 4. MADATHIL MOHANAN, S/O.RAMAN, BEEDI WORKER, DHARMADOM AMSOM, PALAYAD DESOM, THALASSERRY. 5. MADATHIL SARALA, D/O.RAMAN, DHARMADOM AMSOM, PALAYAD DESOM, THALASSERRY. ADV. SRI.C.P.PEETHAMBARAN FOR R1 TO 5 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 8/07/2011, THE COURT ON 22/7/2011 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 224 OF 2004 =========================== Dated this the 22nd day of July,2011 JUDGMENT Defendant in O.S.216/1993 on the file of Munsiff's Court, Thalasserry is the appellant. Respondents are the plaintiffs. Respondents instituted the suit seeking a declaration that they are having right of easement over plaint B schedule way and for a direction to the appellant to restore the ladder and the plaint B schedule pathway to its original position and for a permanent prohibitory injunction restraining appellant from causing obstruction to the way or interfering with the peaceful enjoyment of the plaint B schedule way. Deceased Raman, father of the respondents was admittedly a tenant occupying the hut in the plaint A schedule property. Later he purchased the kudikidappu right in RSA 224/2004 2 1973 as per order in O.A.596/1970. The ten cents of property so purchased under Ext.A2 certificate, is inclusive of the hut and well. It is the plaint A schedule property. On the death of Raman, his rights devolved on respondents, his legal heirs. Respondents contended that there is a public road on the west of the plaint A schedule property and plaint A schedule property is lying 5 feet above the road level and the way to the plaint A schedule property is from the western road and a ladder was placed to enter the property from the western road and it was the way being used by deceased Raman and thereafter by respondents to reach plaint A schedule property from the western road through the property of the appellant. They contended that they have been using the said way for the last 50 years openly, peaceably, continuously and without interruption, as of right and as an easement and therefore they have prescribed a right by easement of prescription over the way starting from the western road through the property of the RSA 224/2004 3 appellant to reach the plaint A schedule property. Plaint B schedule is that way. On 22.6.1993 appellant demolished the steps and the ladder which was there on his property to enter from the western road and also planted tappioca on the plaint B schedule way and he has no right to cause obstruction to the way and therefore respondents are entitled to the decree sought for. 2. Appellant resisted the suit admitting that Raman was a tenant. Subsequently he purchased kudikidappu right over plaint A schedule property in 1973. Appellant contended that there is a lane on the eastern side of the plaint A schedule property and Raman and subsequently respondents have been using the way from the eastern lane to enter the plaint A schedule property. The hut which was occupied by Raman had collapsed in 1977 and the present house was built later in 1985 and respondents are not using the plaint B schedule way and they have not prescribed any right over the way and they are not entitled to a right of way RSA 224/2004 4 through the property of the appellant. It was contended that appellant constructed a house on the south western side of the property in 1992 and has been residing there and the original pathway to the property was from the north western corner and after construction of the new house, a new way was aligned from the road on the western side and the old way was blocked and at that time respondents trespassed into the property and aligned a new way by putting up steps on the western side of the property of the appellant and they have no right to do so and therefore they are not entitled to the decree sought for. 3. Learned Munsiff on the evidence of A1 and A2, B1 to B14, C1 and C2 dismissed the suit holding that respondents way to the plaint A schedule property is from the eastern lane and they have not prescribed a right of way over plaint B schedule property and permitting the respondents to use the plaint B schedule pathway would divide the property of the appellant and therefore they are not RSA 224/2004 5 entitled to the decree sought for. 4. Respondents challenged the judgment before District Court, Thalassery in A.S.128/1996. Learned District Judge dismissed the appeal confirming the judgment of the trial court. It was challenged before this court in S.A.741/2001. This court found that there is no dispute that respondents are kudikidappukars who have purchased the right of kudikidappu evidenced by Ext.A2, on 27.12.1973, pursuant to Ext.A1 order in O.A.596/1970. Relying on Section 79A of Kerala Land Reforms Act it was held that apart from the extent of land a kudikidappukaran is entitled to purchase, he is also entitled to have all the rights and previleges conferred on the owner of a land under the Easement Act, 1882 as if the Kudikidappukaran was the owner of their kudikidappu from the date on which a hut or homestead as the case may be, was occupied or erected, notwithstanding anything contained in any other law or in any judgment, decree or order of a court and RSA 224/2004 6 therefore respondents who are kudikidappukars are entitled to claim right under the Easement Act, provided they satisfied the ingredients of Section 15 of the Easement Act. This court found that appellate court has not considered the question whether the respondents have been using the plaint B schedule pathway prior to the purchase of kudikidappu and if they have been using it, they are certainly entitled to include the said period also for the purpose of reckoning the 20 years period. This court remanded the first appeal to the first appellate court for fresh consideration on the question whether appellants were actually using the plaint B schedule pathway for a period of 20 years continuously and peacefully as referred to in Section 15 of the Easement Act uninterruptedly, after considering the evidence on record. Appellant filed R.P.458/2002 to review the judgment in S.A.741/2001 contending that plaint A schedule land was not the original kudikidappu and the original kudikidappu was far away from the plaint A RSA 224/2004 7 schedule land and by choosing an alternate plot respondents had parted with all subservient right attached to the original kudikidappu, including all easement rights, and therefore they are precluded from claiming a right of way either easement by necessity or easement by prescription, attached to the land they had parted with in exchange of a different plot and therefore the findings in paragraph 17 of the judgment that if respondents succeed in showing that they are using the pathway even prior to the date on which purchase certificate was issued to them, they are entitled to the right of way is to be reviewed. Learned single Judge disposed the review petition with a clarification that first appellate court shall consider the contention raised by the appellant regarding the parting with all subservient right attached to the original kudikidappu, on the allegation that the original plot was shifted opting for the present plot and the first appellate court shall compute the period of 20 years, which RSA 224/2004 8 would be the uninterrupted use and if there was any dispossession as claimed by the appellant or any abandonment of right that shall also be taken into consideration while deciding the claim of right of way by easement of prescription. 5. Learned Additional District Judge, thereafter by judgment dated 18.8.2002, allowed the appeal and granted a decree declaring that respondents have prescribed a right of way by easement of prescription over plaint B schedule pathway and directed the appellant by a mandatory injunction to restore the plaint B schedule pathway to its original position and granted a permanent prohibitory injunction restraining appellant from causing obstruction to the peaceful enjoyment of the plaint B schedule way. It is challenged in this appeal. 6. Appeal was admitted formulating the following substantial questions of law. a) Whether the order of remand made by the Hon'ble Court in RSA 224/2004 9 S.A.274/2001 and the further judgment made by the Hon'ble Court in R.P.458 of 2002 have been correctly noticed or understood by the Court below? b) Whether the rights available to the plaintiffs as kudikidappu enable a prescriptive right of easement as found by the Court below? 7. Learned senior counsel appearing for the appellant and the learned counsel appearing for the respondents were heard. 8. The argument of the learned senior counsel is that inspite of the direction of this court in the order in R.P.458/2002, directing the first appellate court to consider the plea raised by the appellant that respondents have opted for a different plot while purchasing kudikidappu and therefore they cannot claim the right if any available to the original plot, and the right of RSA 224/2004 10 way claimed is to be settled only with reference to the alleged use of the way to the second plot opted by the respondents it was not even considered and hence the judgment of the first appellate court is to be set aside. Learned senior counsel pointed out that as is clear from the plan attached to Ext.B4 report prepared by the Revenue Inspector in O.A.596/1970, the plot which was fixed originally to be assigned to the kudikidappukaran was plot A which lies on the west of the property adjoining the western road and subsequently the plot was changed to plot B towards the east, adjoining the eastern lane and in such circumstances when the original plot A was disclaimed and plot B was opted and a purchase certificate was issued, first appellate court was not justified in holding that the period of alleged use prior to the purchase of kudikidappu right should also be tagged on to the subsequent use of way to consider whether respondents have prescribed a right of way. The argument is that even if respondents have been RSA 224/2004 11 using the plaint B schedule way, to reach the house from the western road, as the kudikidappu was purchased only in 1973, the period of 20 years provided under section 15 of the Easement Act will not expire on the date of institution of the suit and hence respondents cannot claim a right of way by easement of prescription. Learned senior counsel pointed out that Ext.B3 objection filed by the appellant and other legal heirs, proposed to assign plot A as the kudikidappu to the father of the respondents, would establish that the right of way was towards the eastern lane and not towards the western road and these aspects were not considered by the learned District Judge. Learned senior counsel also argued that till the purchase of kudikidappu right Raman was only a Kudikidappukaran and he being a tenant under the landlord cannot prescribe a right of way over the remaining property of the landlord, and he could claim such right only after purchase of kudikidappu in 1973 and as the suit was instituted RSA 224/2004 12 before the expiry of 20 years from that date, respondents are not entitled to the decree sought for. Learned senior counsel further argued that when there is a lane through which even vehicular traffic is now possible which lies immediately to the east of the property purchased by the predecessor in interest of the respondents under Ext.A2 and direct access is available from the plaint A schedule property to the lane on the east, respondents are not entitled to claim a right of way through the remaining property of the appellant so as to split the property. Learned counsel argued that even if the respondents are entitled to a way, the way is to be provided with least onerous inconvenience to the appellant and this aspect was also not considered by the first appellate court. 9. Learned counsel appearing for the respondents pointed out that by the judgment in R.S.A.224/2004, this court concluded the question whether a kudikidappukaran is entitled to claim a RSA 224/2004 13 right of easement by prescription over the property of the landlord, in the light of Section 79A of Kerala Land Reforms Act and the first appeal was remanded to first appellate court to consider whether respondents have established that they have been using the plaint B schedule way continuously for a period of more than 20 years prior to the institution of the suit providing that the period of use prior to the purchase of kudikidappu could also be tagged on while computing the period and hence appellant is not entitled to contend that a right of easement of prescription cannot be claimed by the respondents. Relying on the decisions of this court in Paul Alias Varkey v. Narayanan & another (1974 KLT 29),Ambrose v. Joseph (1980 KLT 507), Sreedharan v. Itty (1981 KLT 245), Karunakaran & Others v. Janaki Amma & Others (1987 (2) KLT 1010) learned counsel argued that if respondents could establish that they have been using the plaint B schedule way continuously and RSA 224/2004 14 uninterruptedly for more than 20 years prior to the institution of the suit, as an easement and as of right, they are entitled to the decree granted by the first appellate court and on the evidence first appellate court rightly found that respondents have established the right. Learned counsel argued that evidence establish that there was no change of the plot where the original hut was situated and though plot A originally marked by the Revenue Inspector was subsequently changed and plot B as seen in the plan appended to Ext.B4 report was accepted, there was no change to the plot where the original hut was standing. It is therefore argued that the way which was being used earlier to the purchase of kudikidappu and subsequent to the purchase is the same way and it is the plaint B schedule way. Learned counsel also argued that evidence would establish that respondents have pleaded all the necessary ingredients constituting the right of way by easement of prescription and in such circumstances, there is no reason to interfere with RSA 224/2004 15 the decree. Learned counsel finally submitted that if the way is to be shifted so as to cause least inconvenience to servient tenement, trial court may be directed to fix the way through the property of the appellant. 10. Appellant is admittedly the owner of the land which lies to the west of plaint A schedule property. Deceased Raman, the predecessor in interest of the respondents, was admittedly a kudikidappukaran in the plaint A schedule property. Subsequently under Ext.A1 order in O.A. 596/1970, Land Tribunal allowed the application to purchase kudikidappu and Ext.A2 purchase certificate was issued pursuant to Ext.A1 order. Ext.B2 report of the Revenue Inspector establishes that the Revenue Inspector had originally proposed the 10 cents to be purchased by the kudikidappukaran as plot A of the plan appended to Ext.B4 report. Ext.B3 objection was filed by the landlord objecting to the assignment of plot A contending that it would cause inconvenience and that the value of the land RSA 224/2004 16 assessed is inadequate. It was also contended that if plot A is to be allotted to the kudikidappukaran, landlord has to part with more land to provide a way to the kudikidappukaran in addition to the way to allow him to take water from the well. Ext.B4 report was thereafter submitted by the Revenue Inspector proposing plot B instead of plot A. Ext.B5 objection was filed by the landlord to the said report and Ext.B6 objection was filed by the kudikidappukaran. In Ext.B6 objection the kudikidappukaran claimed plot A itself instead of plot B contending that plot B would cause inconvenience to him. By Ext.A1(Ext.B7 order) Land Tribunal permitted the kudikidappukaran to purchase plot B. By allotting plot B instead of plot A, 10 cents was shifted from the west to east. If plot A was allotted, that plot would have road frontage on the entire western boundary. By changing to plot B, which lies on the eastern side of the entire property, the 10 cents assigned lost the road frontage on the west. The eastern RSA 224/2004 17 boundary of the said 10 cents is a public lane. Respondents are contending that the way which was available to the kudikidappu was from the western road and it was being used as of right by Raman and subsequently respondents have been using that way openly, peaceably and without interruption and as an easement and they thereby prescribed a right of way. Appellant on the other hand contended that the way available to the kudikidappu was from the east and the plaint A schedule property is having the public lane as the eastern boundary and therefore there is no necessity for the respondents to pass through the remaining property of the appellant or to proceed to the western road as respondents could enter the very same road proceeding towards the north through the eastern lane. Learned Munsiff held that respondents are not entitled to the right of way. It was originally confirmed by the first appellate court holding that the suit was instituted before the expiry of 20 year period from the date of Ext.A1 RSA 224/2004 18 order and till the date of Ext.A1 order respondents were only kudikidappukars under the predecessor in interest of the appellant and they cannot claim a right of easement by prescription over the remaining property of the landlord and therefore they are not entitled to the right of way. The question whether the respondents being the kudikidappukars could claim right of easement by prescription over the remaining property of the landlord was considered by this court in S.A.741/2001. This court relying on Section 79A(2) and sub section 25 of Section (2) of Kerala Land Reforms Act, following the decision of this court in Sreedharan v. Itty (1981 KLT 245) held:- “From the above decision also, it can be seen that the petitioner who is a kudikidappukaran is also entitled to claim an easement right under the Easement Act provided he RSA 224/2004 19 satisfies the ingredients of Section 15 of the Easement Act.” Holding that while calculating he period of 20 years provided under section 15 of Indian Easement Act, the previous use could also be computed,it was held:- “When certain rights are conferred by Act 35 of 69, the purchase certificate issued later based on an application made in 1970 itself, after following the procedure laid down by law is only a proof of purchase of such right based on adjudication. In other words, it is a declaration of such right by the statutory authority after finding that the conditions referred to in RSA 224/2004 20 Section 2(25) of the Act is satisfied. Only a person who is in occupation of a hut or a homestead as defined in the Act can apply to the Land Tribunal for purchase of a kudikidappu right. Therefore, the applicant has to satisfy the conditions precedent for grant of that right or confirmation of that right. Therefore, when such a declaratory relief is granted, it is a declaration of the right which relates back to the date on which he is in occupation of the hut or homestead, as the case may be. Therefore, if a particular pathway is there in use, prior to the issuance RSA 224/2004 21 of a purchase certificate, then it cannot be said to arise from the date on which the purchase certificate was issued if actually such user was there even from the date of occupation of the hut. In other words, if the plaintiffs are able to show that they are using the pathway even prior to the date on which the purchase certificate was issued to him, then they are certainly entitled to include those period also for the purpose of reckoning the 20 years period.” It is with that direction the suit was remanded for fresh disposal to the appellate court to consider whether appellants were actually using the plaint RSA 224/2004 22 schedule pathway for a period of 20 years continuously, uninterruptedly and peaceably as referred to in Section 15 of the Easement Act after considering the evidence on record. It is thereafter the first appellate court reappreciated the evidence and held that respondents have established that they and their predecessors have been using the plaint B schedule way for more than 20 years continuously and peaceably and without interruption as of right and as an easement and upheld the plea of the right of way. 11. As rightly pointed out by the learned counsel appearing for the respondents appellant did not challenge the order of remand in S.A.741/2001. Hence the findings of this court in S.A.741/2001 that in view of Section 79A(2) of Kerala Land Reforms Act, a kudikidappukaran is entitled to claim right of easement by prescription as against the landlord and the fact that he purchased kudikidappu right only within the period of 20 years prior to the institution of the suit will not RSA 224/2004 23 be a bar to claim the right of way by easement of prescription and he is entitled to include the period being used prior to the purchase of kudikidappu also along with the period he has been using subsequent to the purchase kudikidappu, has become final. It cannot now be challenged by the appellant at this stage. 12. Even otherwise when sub section (2)of Section 79A specifically provide that notwithstanding anything contained in any law, but without prejudice to any rights to which a kudikidappukaran may be entitled under any other law for the time being in force or under any custom, usage or contract, a kudikidappukaran have all the rights and privileges conferred on the owner of a land under the Indian Easements Act in respect of its kudikidappu as if the kudikidappukaran were the owner of his kudikidappu from the date on which the hut or homestead as the case may be, was occupied or erected, the usage of the disputed way has to be reckoned from the date RSA 224/2004 24 of occupation of the hut or the homestead by the kudikidappukaran. For the purpose of deciding the question whether he is entitled to a right of easement under the Indian Easement Act, his occupation of the hut or homestead is to be taken as occupation by the kudikidappukaran, as the owner of the land, from the date of its occupation. The right of easement by prescription claimed over the remaining land of the landlord cannot be defeated on the ground that the right of way claimed is through the property of the landlord and a tenant is not entitled to claim a right of easement by prescription as against the landlord. For the purpose of considering the question whether a kudikidappukaran is entitled to a right of way by easement of prescription, his usage from the date of occupation of the hut or homestead shall be treated as occupation by the kudikidappukaran as its owner and if so he is not disentitled from claiming a right of way against the landlord, who is the owner of the remaining land. In such RSA 224/2004 25 circumstances, the only question is