IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 SA.No. 290 of 1995(A) --------------------- AS.24/1991 of SUB COURT, THIRUVALLA OS.315/1985 of MUNSIFF COURT, THIRUVALLA .................... APPELLANT(S)/RESPONDENTS/DEFENDANTS: -------------- *(1) CHACKO SON OF CHACKO, CHEMPANAL HOUSE, EAST OTHARA, ERAVIPEROOR VILLAGE. (DIED. LRS IMPLEADED AS ADDL.APPELLANTS 3 TO 6 AND ADDITIONAL RESPONDENTS 2 AND 3) *(2) CHACKO ALIAS KUNJAPPY, -DO- -DO-(DIED. LRS IMPLEADED AS ADDITIONAL APPELLANT NO.7 AND ADDITIONAL RESPONDENT NO.4) *ADDL.APPELLANTS 3 TO 6: --------------------- 3. ALEYAMMA CHACKO, KARIPURATH PUTHEN VEEDU, EAST OTHERA P.O., ERAVIPURAM, THIRUVALLA. 4. VARGHESE JACOB OF -DO- -DO- 5. ALEYAMMA THOMAS OF -DO- -DO- 6. MARIYAMMA MATHEW OF -DO- -DO- (ADDL.APPELLANTS 3 TO 6 ARE IMPLEADED AS THE LRS OF THE DECEASED FIRST APPELLANT AS PER ORDER DATED 5.6.1998 IN CMP NO.1466/1997) ADDL.APPELLANT NO.7: ------------------- 7. DR.P.C.KURUVILLA, KARIPURATHU PUTHEN VEEDU, KADAPARA P.O., KUMBANADU, THIRUVALLA. (ADDL.APPELLANT NO.7 IS IMPLEADED AS THE LRS OF DECEASED SECOND APPELLANT AS PER ORDER DATED 5.6.1998 IN CMP NO.1418/1997) BY ADV. SRI.G.UNNIKRISHNON SRI.P.V.RAMESH SHANKAR SA NO.290/1995 2 RESPONDENT(S)/APPELLANT/PLAINTIFF: --------------- LEKSHMI AMMA KARTHAYAYANI AMMA, CHARAMANGALATHU HOUSE, EAST OTHARA, ERAVIPEROOR VILLAGE. ADDL.RESPONDENTS 2 AND 3: --------------- 2. K.C.CHACKO, P.O.BOX NO.5733, SHARJAH, U.A.E. 3. K.C.GEORGE, P.O.BOX 21125, SHARJAH, U.A.E. (ADDL.RESPONDENTS 2 AND 3 ARE IMPLEADED AS THE LRS OF DECEASED FIRST APPELLANT AS PER ORDER DATED 5.6.1998 IN CMP NO.1466/1997) ADDL.RESPONDENT NO.4: --------------- 4. CHACKO K.MATHUKUTTY, 3101, SPENCES HWY, APT 238, PASADENA, TEXAS 77504, U.S.A. (ADDL.RESPONDENT NO.4 IS IMPLEADED AS THE LRS OF DECEASED SECOND APPELLANT AS PER ORDER DATED 5.6.1998 IN CMP NO.1418/1997) THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/02/2009, THE COURT ON 2THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = S.A. 290 of 1995 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 20th day of February, 2009 J U D G M E N T ---------------------- Heard learned counsel for the additional appellants. Additional respondents though served, remain absent. 2. The substantial questions of law raised for a decision are: (1) is not the finding of the court below that the original respondent has a right of way as an easement by prescription over plaint schedule item No.3 contrary to law? (2) is the evidence on record is sufficient for finding that the original respondent has acquired a right of way by prescription having regard to the fact that people of this country make free use of the neighbour's property left unenclosed without the least idea that they are doing so as a matter of right? On hearing learned counsel for additional appellants and on going through the records, the following additional substantial question of law is also raised for a decision: Whether the descriptions in the pliant schedule regarding the disputed way are S.A. NO.290 of 1995 -: 2 :- sufficient to claim the right of easement by way of prescription? 3. The above questions arise for a decision in the second appeal preferred by the defendants/appellants (original appellants died pending second appeal and their legal representatives were impleaded) challenging the judgment and decree passed by the first appellate court in A.S. No.24 of 1991. Original respondent claimed right of easement by way of necessity and prescription over the disputed pathway referred to as plaint schedule item No.3. Learned Munsiff found that both the claims are not established and dismissed the suit. In appeal at the instance of the original respondent, first appellate court concurred with the finding of the learned Munsiff as regards the claim of easement by way of necessity but reversed the finding regarding easement by way of prescription and granted decree. It is contended by the learned counsel that there is no sufficient evidence to prove the existence of the disputed way or its alleged user as of right for the statutory period. It is also contended by the learned counsel that description of the disputed way in item No.3 are not sufficient to grant any relief as prayed for. 4. In the plaint schedule the disputed pathway is described S.A. NO.290 of 1995 -: 3 :- as having a length of 24' and width of 5' along the eastern portion of plaint item No.2 which belonged to the original appellants. Original respondent stated in paragraph 3 of the plaint that the Pazhayakavu Kadapra road goes along the north-western side of the property belonging to the original appellants and that the only access to plaint item No.1 belonging to her is through the north-eastern extremity of plaint item No.2 belonging to the original appellants. Item No.3 pathway having a length of 24' and width of 5' has been in existence for over 25 years. She also claimed that she has been using that pathway as of right, uninterruptedly and openly for more than the said period of 25 years. Original appellants denied the existence of the pathway and claimed that the original respondent has other means of access to her property. An Advocate Commissioner inspected the properties without notice to the original appellants and submitted Exts.C1, report and C1(a), sketch. In that report the Advocate Commissioner reported about a pathway originating from the steps towards the eastern side of the house of original respondent in item No.1, going almost towards north-western corner reaching upto a granite wall recently constructed towards the eastern boundary of the property belonging to the original appellants. Further fact S.A. NO.290 of 1995 -: 4 :- reported by the Advocate Commissioner is that the width of the pathway is 60 cms. Advocate Commissioner also found a pathway having a width of 50 cms. and length of 4 metres along the property of one Ramakrishna Pillai situated north-west of schedule item No.2 and on the south-east of the Pazhayakavu Kadapra road. That pathway is said to joining the Panchayat road. D.W.5 inspected the properties with notice to both parties and submitted Ext.C2. In that report, Advocate Commissioner referred to an alternate pathway available to the original respondent which both the courts below accepted to negative the claim of the original respondent for a right of easement by way of necessity. D.W.5 found a granite wall towards the eastern side of item No.2 having 140' length and 4' height and about 3 years old. She also found a large pit towards the north-western portion item No.1 caused by quarrying granite stones. Advocate Commissioner reported that property of Ramakrishna Pillai is situated at a higher level by 2.5' from item No.2 belonging to the original appellants. Both sides adduced evidence regarding the alleged user or non-user of the disputed way. First appellate court accepted the evidence of original respondent in the light of Ext.A1 title deed in respect of plaint schedule item No.1 which is of the year 1119 M.E. S.A. NO.290 of 1995 -: 5 :- 5. To sustain a plea of easement by way of prescription the fundamental requirement is to prove the existence of a well formed pathway. Of course when the original respondent came with an allegation that portion of the pathway along the property of the original appellants was destroyed it may not be possible to prove the existence of the pathway as on the date of institution of the suit. Even then the original respondent was required to give datas sufficient to give relief of injunction with respect to the disputed way along plaint schedule item No.2. The description of the disputed way along item No.2 is that it is having a length of 24' and width of 5' towards along the eastern portion of item No.2. But neither of the Commissioners was able to find any such way having a width of 5' even through the property of the original respondent. Instead even through plaint schedule item No.1, width of the pathway found by the Commissioner is only 60 cms. while along the property of Ramakrishna Pillai, the width of the pathway is only 50 cms. If so, there is no reason to think that there was a way having width of 5' along item No.2. First appellate court therefore stated that relief could be granted in respect of a way having width of 50 cms. It is not explained how in spite of the original respondent claiming a way having a width of 5' even through S.A. NO.290 of 1995 -: 6 :- plaint schedule item No.1, Commissioner could found only a way having a width of 50 cms. Obviously there was no such way in existence as refereed to in item No.3. 6. As regards the alleged user for the statutory period, though Ext.A1 is of the year 1119 M.E. what the original respondent claimed in paragraph 3 of the plaint is only user of the pathway for more than 25 years. According to the original respondent she has been using the disputed pathway for access from item No.1 to the Panchayat road. As against that claim, original appellants contended that Pazhayakavu - Kadapra road was formed just 17 years before the institution of the suit. This is not disputed by the original respondent also. But in evidence she stated that there was a pathway along that place before the Panchayat road came into existence. She never pleaded in the plaint that there was any pathway along that direction before the Pazhayakavu - Kadapra road was formed. It is only for the first time in evidence that the original respondent developed a case that before the Pazhayakavu - Kadapra road came into existence there was a pathway along that direction. In the absence of plea to that effect, that version of original respondent cannot be accepted. It is also difficult to think that a way having 50 cms. was in use for the S.A. NO.290 of 1995 -: 7 :- statutory period. Therefore the alleged user for the statutory period is not proved. 7. It is also seen that as reported by the Advocate Commissioner, property of Ramakrishna Pillai is situated about 2.5' higher level from plaint item No.2 belonging to the original appellants. The Commissioners have not stated about any steps or other devise to enter the property of Ramakrishna Pillai from plaint item No.2. In these circumstances in the absence of proper description as to the existence of the pathway and proof of the same, the first appellate court was not justified in reversing the finding entered by the trial court. Hence that finding cannot be sustained. Resultantly, the appeal succeeds. Judgment and decree passed by the first appellate court to the extent it granted relief against the original appellants are set aside. No costs. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== S.A. NO.290 OF 1995 =================== J U D G M E N T 20TH FEBRUARY, 2009