IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 15TH OCTOBER 2010 / 23RD ASWINA 1932 SA.No. 236 of 1996(C) ---------------------- AS.181/1994 of SUB COURT, PALA OS.152/1991 of MUNSIFF COURT, PALA .................... APPELLANT(S): APPELLANT/DEFENDANT ------------------------------------------------------------ K.M.KUMARAN, AGED 52 YEARS, S/O. MATHA, K.S.R.T.C. EMPLOYEE KATTIKKANAYIL HOUSE, KUZHA P.O., KURAVILANGAD, KOTTAYAM DISTRICT. BY ADV. SRI.M.P.KRISHNAN NAIR SMT.K.L.LAKSHMI RANI RESPONDENT(S): RESPONDENT/PLAINTIFF --------------------------------------------------------------- OUSEPH JOHN, S/O. OUSEPH, AGED 77 YEARS, NIDIYIRICKALAYA VEPPALAYIL HOUSE, KOZHA KARA, KURAVILANGADU VILLAGE, KOTTAYAM DISTRICT.(DIED) *ADDL. R2 TO R5 IMPLEADED. 2. ANIYAMMA CHERIAN, W/O. CHERIYAN, NIDIYIRICKALAYA, VEPPALAYIL HOUSE, KOZHA KARA KURAVILANGADU VILLAGE. 3. SOUMYA, AGED 15 YEARS, MINOR, D/O. CHERIYAN, NIDIYIRICKALAYA, VEPPALAYIL HOUSE, KOZHA KARA, KURAVILANGADU VILLAGE. 4. SHIJO, AGED 12 YEARS, MINOR, S/O. CHERIYAN, DO. DO. 5. SIBIN, AGED 10 YEAR, MINOR, S/O. DO. DO. *ADDL. R3 TO R5 ARE ADDRESSED BYTHEIR NATURAL GUARDIAN MOTHER ANIYAMMA CHERIYAN(ADDL. R2.). THE LEGAL HEIRSW OF THE DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDL. R2 TO R5 VIDE ORDER DTD. 2.2.2001 ON CMP. 248/2000. R2 – R5 BY ADVS. SRI.V.G.ARUN, SRI.T.R.HARIKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- SA No.236 of 1996-C ------------------------------------- Dated 15th October 2010 Judgment The defendant, who suffered a decree at the hands of both the courts below, is the appellant before this court. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff laid a suit for injunction, claiming title over the suit property on the basis of Ext.A1 document dated 26.11.1959. According to him, the defendant has several pathways to his property to have access to the outside world. The defendant wanted a cartable road through the plaint schedule property for which, the plaintiff was not amenable. It is alleged that the defendant tried to cut open a pathway through the plaint schedule property and that necessitated the suit. 3. The defendant resisted the suit by pointing out that the plaintiff had put up a barbed wire fencing on all the four sides of his property, blocking the pathway, which the defendant was enjoying for a long time to go to the outside SA No.236/96 2 world. That was in the year 1989. It is claimed that at the time when the father of the defendant obtained the property from an illom, they were residing on the southern side of the road passing through the southern side of the plaint schedule property. At the relevant time, there was a pathway of 3 feet width through the western side of the plaint schedule property in the north-south direction. It is alleged that the plaintiff blocked that pathway, using the barbed wire fencing and the defendant had to cut open the said fencing, which gave rise to an altercation and the dispute was ultimately solved by the intervention of the panchayat members. It is contended in the written statement that the plaintiff had agreed before the panchayat members that he will provide the defendant, a 3 feet wide pathway by the northern side of his paddy field in the east- west direction. The defendant would submit that in order to get away from that commitment, the plaintiff has laid the present suit. He therefore, prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 5 and documents marked as Exts.A1 and A2 from the side SA No.236/96 3 of the plaintiff. The defendant examined DWs 1 to 4 and had Exts.B1 and B2 marked. Exts.C1 to C3 are the commissioner's report and plan. 5. The trial court, on a consideration of the evidence in the case, came to the conclusion that there is no pathway as alleged by the defendant and therefore, dismissed the suit. It was confirmed in appeal. Hence the second appeal. 6. The following questions of law are raised in the second appeal : 1) Whether the courts below are their duty to intervene and correct in an attempt discarding the claim of easement right when the findings are completely against the weight of evidence, without the support of any materials and are perverse and on wrong understanding of the legal provision. 2) Whether the courts below are justified in decreeing the suit when the commission report and plan Exhibit C2 and C3 and the deposition of PW5 commissioner clearly reveal that there is no alternate pathway for the appellant for his ingress and egress from his property through AB and CD pathways marked in Commissioner's plan Exhibit C3. SA No.236/96 4 3) Whether the trial court as well as lower appellate court failed in not considering Exts.C2 and C3 report and plan and the statement of PW5 commissioner. If so, are the judgment and decrees of the courts below justified. 4) Whether the courts below are erred in acting ignorance of the legal and factual position rejected the evidence, influenced and prejudiced by mistakes. 5) Whether the courts below are justified in decreeing the suit while not finding whether the appellant has alternate pathway or not. 6) Whether the courts below failed to note that for declaration for an easement right over a pathway, the mere fact that there is an alternate pathway will not disable to claim the right of easement by prescription. 7. The learned counsel for the appellant pointed out that the courts below have misdirected themselves both on facts and in law and has not considered the real issue involved in the case. Attention was drawn to the fact that on all the three sides of the property owned by the defendant, are the properties owned by the plaintiff and the defendant has no way to the have access to the outside world, except through one of the properties belonging to the plaintiff. The further claim is SA No.236/96 5 that earlier, the defendant was making use of a pathway, which started from the Pala-Kozha Road on the southern side, going through the property of the plaintiff towards north and ending at the southern boundary of the property of the plaintiff. According to the defendant, by mutual agreement, it was decided that the said pathway might be closed on condition that the plaintiff would provide another way through the northern side of his property. After closing the said pathway, using barbed wire fencing, the plaintiff went back on his promise, which resulted in denial of access for the defendant to the outside world. 8. The learned counsel for the respondent, on the other hand, pointed out that the claim of the defendant was essentially based on an easement right and it is not specified in the written statement as to what is the exact nature of the claim of easement by the defendant. It was that aspect, which was considered by the courts below and according to the defendant, there are no grounds made out to interfere with the judgment of the courts below. SA No.236/96 6 9. I do not think that the learned counsel for the respondent is correct in the above submission. It is true that an easement claim as such may not be tenable, considering the present state of pleadings. I have perused the commissioner's report and plan and also the evidence in the case. This court is unable to find out any way, which the defendant could use to have access to the outside world. It is not in dispute that he has been residing in the property for a long time. It is important to notice that in Ext.C3 report, the Commissioner has marked a pathway shown as Ext.C-D, which goes through a portion of the property owned and enjoyed by the plaintiff. Viewed from that angle, it looks probable that the agreement put forward by the defendants may not be true. At any rate, there is no finding that the defendant has got any other pathway than the one claimed by him, to go to the outside world. This aspect has been lost sight of by the courts below. This, in fact, is the crucial issue raised in this appeal. May be that, he may not have the right by way of necessity over the pathway through the property of the plaintiff. But, having regard to the probability of the agreement, having been entered into between the parties, it is felt that the SA No.236/96 7 issue needs a second look at the hands of the trial court. In the result, this appeal is allowed. The impugned order is set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of the observations contained herein above. The parties will appear before the court below on 15.11.2010. The trial court shall consider and dispose of the matter as expeditiously as possible, at any rate, within six months from the date of appearance of parties before court. The parties will be at liberty to adduce further evidence. There will be no order as to costs. P.BHAVADASAN, JUDGE sta SA No.236/96 8