IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE IST MARCH 2011 / 10TH PHALGUNA 1932 SA.No. 75 of 1999(A) ----------------------------- AS.132/1996 of II ADDL.SUB COURT,ERNAKULAM OS.1051/1993 of PRL.MUNSIFF COURT,ERNAKULAM .................... APPELLANT(S): APPELLANTS IN AS 132/1996/PLLAINTIFFS IN OS. 1051/1993. ----------------------- *1. KAUSALYA KUMARAN, W/O. KUMARAN, KANNAKIYTHARA, CHERANALLOOR VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT.* (DIED). *2. BALAKRISHNAN, S/O. KUMARAN, KANNAKIYTHARA, CHERANALLOOR VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT * (DIED). *ADDL. APPELLANTS 3 TO 10 IMPLEADED. 3. LAKSHMI APPUKUTTAN, S/O. APPUKUTTAN, PADAMMAPARAMBIL HOUSE, THAIKKAVU, CHERANELLUR. 4. JANAKI RAMANAN, W/O. RAMANAN, ALANGATTU VEEDU, NEAR K.S.R.T.C. STAND, KOCHI 35. 5. THANKAMANI ARAVINDAKSHAN, W/O. ARAVINDAKSHAN, KALATHITHARA HOUSE, MOOLAMBILLY, KADAMAKUDI. 6. SUDARMMA DASAN, W/O. DASAN, NIKARTHIL VEEDU, NETTOOR. 7. AJITHA, KANNANKERITHARA VEEDU, SOUTH CHITTOOR, KOCHI 27. 8. MOLLY BALAKRISHNAN, W/O. LATE BALAKRISHNAN, KANNANKERITHARA HOUSE, CHERANELLOOR VILLAGE, KANAYANNUR TALUK. tss S.A. NO.75/1999 9. MITHUN BALAKRISHNAN, S/O. LATE BALAKRISHNAN, KANNANKERITHARA HOUSE, CHERANELLOOR VILLAG, KANAYANNUR TALUK. 10. NITHIN BALAKRISHNAN, S/O. LATE BALAKRISHNAN, KANNANKERITHARA HOUSE, CHERANELLOOR VILLAGE, KANAYANNUR TALUK. *ADDL. APPELLANTS 3 TO 10 ARE IMPLEADED AS THE LRS. OF DECEASED IST AND 2ND APPELLANT AS PER THE VIDE SEPARATE ORDER DTD. 30.11.2010 IN IA. 1688/2010. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENT(S): RESPONDENTS IN AS. 132/1996/DEFENDANTS IN OS. 1051/1993. ------------------------- 1. EDWARD, S/O. IYPE JOSEPH, KOLARICKAL HOUSE, NORTH CHITTOOR, CHERANELLOOR VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT. *2. JUSTIN, S/O. IYPE JOSEPH, KOLARICKAL HOUSE, NORTH CHITTOOR, CHERANELLOOR VILLAGE, KANAYANNOOR TALUK, ERNAKULAM DISTRICT * (DIED) ADDL. R3 TO R5 IMPLEADED 3. RANI JUSTIN, W/O. LATE JUSTIN, KOLARICKAL HOUSE, SOUTH CHITTOOR, KOCHI 27. 4. SUNIL JUSTIN, S/O. LATE JUSTIN, DO. DO. 5. DEPU JUSTIN, DO. DO. ADDL. R3 TO R5 ARE IMPLEADED AS THE LRS OF DECEASED R2 AS PER THE ORDER DTD. 30.11.2010 IN IA. 1746/2010. ADDL. R3 TO R5 BY ADV. SRI.MOHAN C.MENON THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/03/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------------------- SA No.75 of 1999 ------------------------------------- Dated this the 1st day of March 2011 Judgment The plaintiffs, who walked away with a partial decree from the lower appellate court, are the appellants before this court. During the pendency of the appeal before this court, both the appellants and the second respondent died and their legal representatives have been brought on the party array. 2. The plaintiffs obtained kudikidappu rights from the defendants as per Ext.A1 dated 01.02.1971. According to them, thereafter, they have been using a pathway having a width of 3 metres and a length of 6 metres, starting from the public road on the east running through the property of the defendants and ending of the eastern boundary of his property. The plaintiffs have been enjoying this pathway for over 20 years and that is the only means of egress and ingress to their property. The allegation is SA 75/99 2 that the defendants put up a construction, trespassing into the plaint schedule pathway. That forced the plaintiffs to approach the court for a declaration of their rights and other ancillary reliefs. 3. The defendants resisted the suit. They appended a rough sketch to the written statement which showed the plot given to the plaintiffs as kudikidappu. According to them, the 'F' portion shown in the said sketch is a common pathway for the plaintiffs and other alienees of the defendants on the northern side. That pathway has sufficient width and the plaintiffs can use the same. They have no right to use the plaint schedule pathway. On the basis of these contentions, they prayed for a dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs1 to 4 and document marked as Ext.A1 from the side of the plaintiffs. The defendants had DWs 1 and 2 examined and Ext.B1 marked. Exts.C1 SA 75/99 3 commissioner's report and C1(a) rough sketch were also marked. 5. The trial court, on an appreciation of the evidence, came to the conclusion that the plaintiffs have not been successful in establishing their prescriptive right of easement and accordingly, dismissed the suit. 6. The plaintiffs carried the matter in appeal as AS No.132/96 before the Sub Court, Ernakulam. The lower appellate court found that the plaintiffs have acquired prescriptive right of easement to use the plaint schedule pathway, but accepting the suggestion put forward by the defendant, changed the course of the pathway to the 'F' portion shown in the rough sketch appended to the written statement, taking aid of Section 22 of the Indian Easement Act. That brings the plaintiffs before this court. 7. Notice is seen issued on the following questions of law raised in the second appeal. 1.Whether the lower appellate court is right in holding that the plaintiffs are to confine their right of easement by SA 75/99 4 prescription to the alternate pathway instead of the plaint schedule way invoking Section 22 of the Easement Act without any prayer or pleading. 2.Whether the lower appellate court was right in allowing the amendment of the written statement at the appellate stage. 8. The learned counsel for the appellants contended that the lower appellate court was not justified in changing the course of the pathway, having found that the plaintiffs have obtained prescriptive right of easement to use the plaint schedule pathway. In support of his contention, he relied on the decisions in Dhundiraj v. Ramachandra (AIR 1922 Bombay 407), Public Prosecutor v. Shaik Dawood (AIR 1957 AP 977) and Khandeswar v. Gokulananda (AIR 1965 Orissa 91). According to the learned counsel, when it was found by the lower appellate court that the plaintiffs have acquired prescriptive right of easement to use the plaint schedule SA 75/99 5 pathway, it was not possible for the lower appellate court without the consent of the dominant owner to change the course of the pathway and to direct the dominant owner to use some other portion as a pathway. 9. The learned counsel for the respondents, on the other hand, pointed out that in fact, by suggesting an alternate pathway as shown as 'F' portion in the sketch appended to the written statement, the plaintiffs have got a better pathway for their use. The learned counsel also pointed out that the way now claimed by the plaintiffs divides the property of the defendants into two and that causes considerable hardships to them. It is further pointed out that the finding of the lower appellate court that the plaintiffs have acquired prescriptive right of easement, may not be quite correct. At any rate, the learned counsel contended that no injustice is caused to the plaintiffs as they are provided with a suitable alternate way for the ingress and egress to their property. SA 75/99 6 10. At the outset itself, it may be noticed that in the plaint, initially, rights by way of easement by necessity and easement by prescription were claimed. It was only at the time of hearing that the plaintiffs became wise and gave up their claim of easement by necessity and confined their claim to easement by prescription. Ext.C1 is the commissioner's report. That shows the pathway as alleged in the plaint. It also shows that the defendants own property immediately on the northern side of the plaint schedule properties. It has come out in evidence that the defendants had sold portions of their properties to various persons and in between the properties so sold and the property of the plaintiffs and the portion now retained by the defendants, a pathway having a width of 12 links has been left for the use of those persons. The defendants suggest that the plaintiffs could also make use of that pathway. 11. It is true that once the court finds that the plaintiffs have established prescriptive right of easement, it may be difficult for the court to change the course of the SA 75/99 7 way without the consent of the dominant owner. But the question to be considered is whether it could be said that the plaintiffs have acquired prescriptive right of easement to use the plaint schedule pathway. 12. One may again refer to the averments in the plaint. The specific averment is that from the date of severance of tenements, that is in 1971 by virtue of Ext.A1, kudikidappu right was conferred on the predecessors-in- interest of the plaintiffs and they began to use the said pathway from 1971. One must notice here that going by the provisions of the Kerala Land Reforms Act, the landlord has got a statutory obligation to provide a way to the 'kudikidappukaran' if he so needs, for the ingress and egress to that portion of the property which is given to him as 'kudikidappu'. From the averments in the plaint, it would appear that the pathway came into existence upon the severance of tenements and claims of easement by necessity and easement by prescription were raised in the plaint. But, it is well established that both cannot co-exist. SA 75/99 8 The fact that the plaintiffs have mentioned that the pathway came into existence upon severance of tenements by virtue of Ext.A1, would indicate that it was a case of easement by necessity rather than the easement by prescription. If that be so, it could not be said that the period of 20 years could be counted from the date of Ext.A1 for the simple reason that the way provided at the time of Ext.A1 was one of necessity as per the statutory requirement. 13. The evidence shows that the 'F' portion shown as the pathway situated on the northern side of the plaintiffs' property came into existence in 1987. At best, what the plaintiffs could claim is that even after the pathway shown as 'F' portion in the written statement came into existence, he continued to use the plaint schedule pathway under a different right i.e., the character of use changed from easement by necessity to prescriptive right of easement. It is well settled that the prescriptive right of easement begins only when the easement by necessity ends. Origin, continuation etc. are entirely different. They SA 75/99 9 cannot co-exist. To that extent, the lower appellate court may not be quite correct in its finding that the plaintiffs are entitled to prescriptive right of easement. 14. It is here that one has to consider the concession made by the defendants in the case. They have left 12 links' width pathway on the northern side of the plaintiffs' property for the use of the plaintiffs and other assignees of the defendants to whom they have sold portions of their properties. Ext.B1 is one of such sale deeds. The southern boundary of that document is shown as a pathway having a width of 12 links that runs along the northern boundary of the property of the plaintiffs. The defendants have undertaken that the said pathway is still owned by them and the plaintiffs can make use of the same. In fact, the written statement filed by the defendants was later amended incorporating such an undertaking. 15. The learned counsel for the appellants then pointed out that there is nothing to show that the defendants still retain ownership over the offered pathway SA 75/99 10 and that the plaintiffs could use it as a matter of right. 16. The learned counsel for the defendants submitted that it may be recorded that the property through which the pathway on the northern side runs, still belongs to the defendants and they have no objection in the plaintiffs using that way as allowed by the lower appellate court. 17. In the above facts and circumstances, it is felt that it is not necessary to interfere with the judgment and decree of the lower appellate court, though for different reasons. The ultimate conclusion of the lower appellate court seems to be in accordance with law and no particular injury is caused to either side. It could not be said that as things now stand, as conceded by the defendants, the plaintiffs cannot use the pathway as now allowed by the lower appellate court, as a matter of right. The undertaking given by the defendants in this regard is recorded. 18. No substantial questions of law arise for consideration in the second appeal. The second appeal is SA 75/99 11 without any merits and it is accordingly dismissed. There will be no order as to costs. P.Bhavadasan, Judge sta SA 75/99 12