IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 FAO.No. 291 of 2007() --------------------- AS.02/2003 of PRL.SUB COURT,TRIVANDRUM OS.1338/1997 of I ADDL.M.C.,TRIVANDRUM .................... APPELLANTS/RESPONDENTS.1,2&5/DEFENDANTS.1,2 & ADDL.5TH DEFENDANT: --------------------------------------------------- 1. RAJAMMA, D/O.CHELLAMMA PILLAI, R.S.NIVAS, PAVACODE, EZHACODE, MALAYINKIL, THIRUVANANTHAPURAM. 2. MOHAN KUMAR, S/O.SIVASANKARA PILLAI, R.S.NIVAS, PAVACODE MALAYINKIL, THIRUVANANTHAPURAM. 3. SIVAKUMARI, D/O.RAJAMMA, RESIDING AT R.S.NIVAS, PAVACODE, MALAYINKIL, THIRUVANANTHAPURAM. BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENTS/APPELLANT/RESPONDENTS 3 & 4/PLAINTIFF/3RD DEFENDANT& ADDL. 4TH RESPONDENT -------------------------------------------- 1. JAYAMOHAN, S/O.N.S.RAMAN PILLAI, PRATHIBHA NIVAS, ONIYODE, KARIPUR, MALAYINKIL, THIRUVANANTHAPURAM. 2. MINI, D/O.SANTHAKUMARI, CHANDRALAYAM, ONIYODE, KARIPUR, THIRUVANANTHAPURAM. 3. VILAVOORKAL GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, VILAVOORKKAL, POTTAYIL, MALAYINKIL, THIRUVANANTHAPURAM. ADV. SRI.G.P.SHINOD FOR R3 SRI.RAM MOHAN.G. FOR R3 SRI.PALLICHAL S,.K.PRAMOD FOR R3 SRI.MANU V. FOR R3 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 16.10.08 ALONG WITH FAO NO. 292 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO No. 291/07 ORDER ON IA No. 3691/07 IN FAO No.291/07 DISMISSED 16.10.08 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- F.A..O. Nos. 291 & 292 OF 2007 --------------------- Dated this the 16th day of October, 2008 JUDGMENT F.A.O. No.291/07 is preferred against the judgment and decree in AS 2/03 of the Principal Subordinate Judge, Thiruvananthapuram. F.A.O. No.292/07 is preferred against the judgment and decree in AS 4/03 of the Principal Subordinate Judge, Thiruvananthapuram. The main suit OS 1338/97 is filed to declare the right of the plaintiff over the 'B' schedule pathway by easement and for a prohibitory injunction. The other suit OS 1378/97 is filed by some of the defendants in the suit for an injunction to restrain the plaintiff in OS 1338/97 from interfering with the peaceful possession of the property. So the sole question to be decided in the matter is whether there is a way as described as ''B'' schedule pathway and whether the plaintiff in the suit has got a right of way through 'B' schedule pathway, as described under any of the provisions of the Easement Act as contended by the plaintiff. It goes without saying that easement right is a right conferred upon a stranger restraining the use of the real owner of the property. So the law is very strict on the point of establishment of that right. 2. I have perused the plaint in OS 1338/97. It has to be stated that there is a plea with respect to the easement of prescription, easement of necessity etc. I do not want to elaborate much on that point for the reason that I am directing the district court to reconsider the whole appeal FAO Nos.291 & 292/07 2 with the materials available before it. A perusal of the first commissioner's plan and report would show that the plaintiff's 'A' schedule property is situated on the norther side of the first and third defendants' property. It is the case of the plaintiff that there is a road called Damodaran Nagar Road. According to him as per Ext.C1(a) plan, the 'B' schedule pathway is 'ABGF'. The plaintiff's A schedule property is 'ABCDE'. The first defendant's property, according to the plaintiff, is 'AHIF' and the 3rd defendant's property is situated on the eastern side of the alleged 'B' schedule pathway. The Commissioner in his report would submit that he was not able to see the 'B' schedule pathway. The plaintiff has submitted before him that it has been interfered with by the defendants and it is covered with water and that tapioca has been planted in the alleged pathway. The Commissioner's report also would reveal that on both sides of the alleged 'B' schedule pathway, there is a slope which may be an indicative of the factum that there has been ingress and agress. The trial court on consideration of the materials found that the evidence adduced in the case is not a sufficient one to identify and locate the plaint 'B' schedule pathway. Secondly, the evidence is not sufficient to show that the plaintiff has been using this pathway as of right continuously and peacefully for an uninterrupted period of more than 20 years. Therefore, it non suited the plaintiff. In the appellate court the matter was considered and ultimately FAO Nos.291 & 292/07 3 the appellate court came to the conclusion that in order to decide whether there is an easement of necessity or easement by prescription, there should be a pathway. There cannot be any dispute without a pathway. There cannot be any claim on the basis of easement of necessity or prescription. The appellate court felt the plaintiff must be given an opportunity to identify and locate the pathway for the purpose of deciding the issue. Subsequent to the first Commissioner's report, two more Commissioners had visited the property. At that time also we do not find any attempt to carve out the passage. If at all there is any material available, it is only on the report of the first Commissioner. Suppose the appellate judgment is to be respected then the question that will arise is how it is to be implemented. Even during the pendency of the suit and even during the first Commissioner's visit, the alleged 'B' schedule pathway, which runs through the defendants, property is not in existence. It is filled with water and planted with tapioca. I am informed by the learned counsel for the appellants in FAO No.291/07 that there are even permanent structures in the property. So it may be only an attempt in futility to demarcate the property at this point of time to decide the issue. 3. Therefore, the order of remand passed by the appellate court will not help the party to resolve the case in the manner they want. It will not be possible under the present set of circumstances to identify the FAO Nos.291 & 292/07 4 property. Then the next question is what will be the solution. The plaintiff has got a definite case as to how the pathway starts and how it ends. It has been a well established principle that when one is able to establish the existence of termini, it may be an indication to prove the existence of a pathway. There are some observations here and there in the Commissioner's report and plan. Over and above this, the parties have adduced evidence before the court. So what has to be done is to find out whether the materials and documents supplied by the plaintiff are sufficient enough to show the case of the plaintiff and the matter is to be decided. Therefore, the order of remand passed in these two cases are set aside. There will be a direction to the Principal Subordinate Jude, Thiruvananthapuram, to consider the appeals afresh with the materials available and decide the case. I am not expressing anything on the merit regarding the easement by prescription or easement by necessity. The parties are at liberty to canvas for their respective position which they want. The court, after hearing both sides, shall dispose of the appeals in accordance with law. Therefore, both the appeals are allowed and the order of remand passed in these two cases are set aside. There will be a direction to the Principal Subordinate Jude, Thiruvananthapuram, to rehear and dispose of AS Nos.2 & 4 of 2003 after affording equal opportunities to both sides to FAO Nos.291 & 292/07 5 place their materials. Registry shall transmit the records to the Principal Subordinate Jude, Thiruvananthapuram for the purpose of rehearing. The appellate court on receipt of records fix a date for hearing and give notice to the counsel appearing for the parties. M.N.KRISHNAN, JUDGE vps