IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 SA.No. 34 of 2001(D) ----------------------------- [AS.NO.59/1996 OF SUB COURT, MUVATTUPUZHA, OS.NO.453/1992 OF MUNSIFF'S COURT,MUVATTUPUZHA] .................... APPELLANTS/APPELLANTS/PLAINTIFFS 2 TO 5: --------------------------------------------------------------------- 1. ANNAKUTTY, W/O. LATE VARGHESE, KARAKUNNEL HOUSE, KALLOORKKADU KARA, KALLOORKKADU VILLAGE. 2. K.V. MATHEW, S/O. DO OF DO. DO. 3. JOHN K. GEORGE, S/O. DO OF DO. DO. 4. MARY K. VARGHESE, D/O. OF DO. OF DO. BY ADVS. SRI.A.ANTONY, SRI.MATHEW SKARIA, SMT.LEELAMMA ANTONY, SRI.TOMY PAUL. RESPONDENT/RESPONDENT/DEFENDANT: -------------------------------------------------------------- MATHEW, S/O. MATHAI, KARAKUNNEL HOUSE, KALLOORKKADU KARA, KALLORKKADU VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.PEEYUS A.KOTTAM. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. HARUN-UL-RASHID,J. ------------------------------- S.A. NO. 34 OF 2001 ------------------------------- DATED THIS THE 8TH DAY OF FEBRUARY, 2011 JUDGMENT The substantial questions of law formulated in the appeal are as follows: “i) Whether the decree and judgment of the court below are contrary to Section 47 of the Easement Act? ii) As per Section 47 of the Easement Act for cessation of easement, there must elapse a period of 20 years. The defendant in the written statement admitted that there was a thodu in existence 8 years prior to the filing of the suit. In view of the same, is it not the court blow went wrong in dismissing the suit? iii) The court below has specifically found that there was a thodu in existence 8 years prior to the date of filing the suit. In view of the same, is it not the court below acted contrary to Section 47 of the Easement Act? iv) Whether in the facts and circumstances of the case the court below was justified in dismissing the suit?” 2. Plaintiffs 2 to 5 in O.S.No453/92 on the file of the -2- S.A..No.34/2001 Munsiff's Court, Muvattupuzha are the appellants. The appeal is directed against the judgment and decree in A.S.No.59/96 on the file of the Sub Court, Muvattupuzha. The suit is filed for declaration of easement by prescription and mandatory and prohibitory injunctions. The trial court dismissed the suit. The appeal preferred by the plaintiffs was also dismissed confirming the decree and judgment passed by the trial court. The parties hereinafter are referred to as the plaintiffs and defendant as arrayed in the suit. 3. The case of the plaintiffs is that plaint A schedule property belongs to the plaintiffs and they are in possession and enjoyment of the same. Plaint B schedule property belongs to the defendant. The deceased original plaintiff and the defendant are brothers. Plaint B schedule property, which admittedly belongs to the defendant lies to the north of plaint A schedule property. Plaint C schedule is a thodu lying through the western side of the plaint A and B schedule properties and ends in Kaliyar river on the -3- S.A..No.34/2001 north. Plaint C schedule is described as thodu having 3 feet width and 3 feet depth. The grievance of the plaintiffs is that plaint C schedule is used by them to flow water from plaint A schedule property. Plaintiffs have also a case that the water coming from the south also flows to the Kaliyar river through plaint C schedule thodu. Plaintiffs sued for the aforesaid reliefs stating that the flow of water through plaint C schedule property is necessary for the proper enjoyment of his property and that they were using the plaint C schedule thodu for the last 38 years peacefully, continuously and without interruption as a matter of right. The suit was filed alleging that on 30th September, 1992 the defendant filled up a portion of plaint C schedule Thodu with soil and constructed a new thodu through the southern side of the plaint B schedule. 4. The defendant in his written statement denied the plaint averments and prayed for dismissal of the suit. According to him, there is no thodu in existence as shown in plaint C schedule. At the same time, in paragraph 6 and 7 of the written statement the -4- S.A..No.34/2001 defendant admitted that there was a thodu lying through the western side of the plaint A and B schedule properties, that the said thodu was filled 8 years prior to the date of filing the suit and therefore they contended that there is cessation of easement. 5. The 4th plaintiff was examined as PW1. PW2 is a neighbour. On the side of the defendant DWs.1 and 2 were examined. Ext.C1 and C1(a) are the commission report and rough sketch. In Ext.C1 the commissioner reported that a portion of the thodu on the western side of plaint A and B schedule properties is filled up recently and thus the flow of water through plaint C schedule property is permanently blocked. 6. The trial court specifically considered the contentions of the defendant that the properties including plaint A and B schedule have been converted into garden lands and the thodu which was once in existence on the western side of the plaint A and B schedule properties has extincted. The trial court also taken note of the contention that about 8 years before filing the suit he has -5- S.A..No.34/2001 planted coconut palms in the plaint B schedule property and that the thodu portion is lying on the western side of his property and that the thodu has ceased to be in existence for the last 8 years prior to the filing of the suit. Relying on the evidence of the defendant, the trial court held that the circumstances would clearly support the case of the defendant that the thodu lying on the eastern side of plaint A and B schedule property has become obsolete and that the portion of the thodu lying on the western side of plant B schedule property is not in existence. The court also on facts held that the plaintiffs have failed to let in any cogent evidence to show that they have been draining out water from plaint A schedule property through C schedule property towards the northern Kaliyar river. Referring to Exts.C1 report and C1(a) sketch, the trial court observed that admittedly there is a mistake crept in the report and plan and that the said mistakes were not explained by examining the Advocate Commissioner. 7.The learned counsel for the appellants/plaintiffs -6- S.A..No.34/2001 pointed out the mistake committed by the Commissioner while preparing the sketch. Plaint A schedule property was shown as plaint B schedule property and the filled up portion of the thodu was also shown that it lies on the western side of plaint A schedule property, instead of showing that it lies on the western side of the plaint B schedule property. None of the parties has a case that plaint A schedule is lying on the south of plaint B schedule. It is apparent that the sketch was mistakenly prepared. This was explained by the 4th plaintiff, who was examined as PW1. 8. Learned counsel for the appellant also brought to the notice of this Court Section 47 of the Easement Act, which reads as follows: “47. Extinction by non-enjoyment-- A continuous easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period twenty years. A discontinuous easement is extinguished when, for a like period, it has not been enjoyed as such. -7- S.A..No.34/2001 Such period shall be reckoned, in the case of a continuous easement, from the day on which its enjoyment was obstructed by the servient owner, or rendered impossible by the dominant owner:” 9. Learned counsel for the appellants pointed out that as per Section 47 of the Easement Act for cessation of easement there must elapse a period of 20 years. He also pointed that in the written statement there is an admission that there was a thodu in existence 8 years prior to the filing of the suit. According to the learned counsel, the trial court as well as the Appellate Court did not consider his case with reference to Section 47 of the Easement Act and therefore the case happened to be dismissed. The learned counsel also pointed out that the trial court as well as the Appellate Court did not consider the impact of Section 47 of the Easement Act, in the light of the admission of the defendant in the written statement that there was a thodu in existence before 8 years of filing the suit. The courts below did not consider the report of the commissioner to the effect that a portion of C schedule was filled -8- S.A..No.34/2001 up recently. In the light of the commissioner's report, pleadings in the written statement, other materials on record and the relevant portion of the Easement Act, the learned counsel submits that the courts below should have reached different conclusion, that may result in decreeing the suit. 10. Taking into account the totality of circumstances, facts and evidence, I am of the view that the contentions which the parties agitated before the fact finding courts were not appreciated in the right perspective. The mistake committed by the Commissioner in preparing rough sketch, the admission of the defendant in the written statement that a thodu was in existence before 8 years of filing the suit and other materials on record were not considered with reference to legal principles and thereafore re- appreciation of the facts is necessary in the interest of justice. The courts below did not examine the evidence on record properly which has a bearing on the rights of the parties. In such circumstances, this Court is of the view that the trial court shall re- -9- S.A..No.34/2001 appreciate the evidence afresh and dispose of the of the suit in accordance with law, after affording an opportunity to the parties to adduce further evidence, if any, if so advised. In the result, the appeal is allowed. The judgment and decree passed by the courts below are set aside. The case is remanded to the trial court for fresh disposal in accordance with law. The parties shall appear before the court below on 21st March, 2011. No order as to costs. HARUN-UL-RASHID, Judge. kcv.