IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 SA.No. 478 of 1998(F) ------------------------------ AS.54/1996 of ADDL.SUB COURT, KOCHI OS.110/1994 of ADDL.MUNSIFF COURT,KOCHI .................... APPELLANTS/APPELLANT/PLAINTIFFS: ---------------------------------------------------------- 1. LEENA W/O. RAMESH, BANK EMPLOYEE, MADATHIL, MADATHIL HOUSE, EDAVANAKAD VILLAGE, EDAVANAKAD KARAYIL. 2. RAJAN S/O. RAGHAVAN, PINANI LATH, NJARAKKAL VILLAGE, MANJANAKAD KARAYIL, KOCHI TALUK. BY ADV. SRI.T.H.ABDUL AZEEZ RESPONDENT/RESPONDENT/DFENDANT: ------------------------------------------------------------- JALAJA W/O. MOHANAN, THUNDATHIL HOUSE, EDAVANAKKAD VILLAGE, EDAVANAKKAD MURI, KOCHI TALUK BY ADV. SRI.K.A.JALEEL SRI.T.T.MOHAMMED THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 478 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of February, 2011. JUDGMENT The plaintiffs, who claimed a right of way through the defendant's property and who were non-suited by both the courts below are the appellants. 2. Plaint A schedule belongs to the plaintiffs. Property of the defendant is situated on the eastern side. Further east is the public road, which runs north-south. The claim of the plaintiffs was that a pathway having 3 ½ feet width and 30 feet length runs through the property owned and possessed by the defendant and reaches a public pathway on the east. Going by the plaint, the plaintiffs claim prescriptive right of easement and easement by necessity. Alleging that the defendant was trying to obstruct their use of pathway, the suit was laid. S.A.478/1998. 2 3. The defendant resisted the suit by pointing out that the suit is not maintainable. It is pointed out that the plaintiffs had no manner of right to use any portion of his property as a pathway. It is claimed that the plaintiffs had other means of access to their property. On the basis of these contentions, he prayed for a dismissal of the suit. 4. On the basis of the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts. A1 and A2 from the side of the plaintiffs. The defendant had D.Ws. 1 and 2 examined and did not adduce any documentary evidence. Exts.C1 and C2 are the commission reports. 5. The trial court on an evaluation of the evidence in the case came to the conclusion that apart from the doubtful existence of the pathway, the plaintiffs had miserably failed to establish any manner of right to use the pathway and accordingly dismissed the suit. In appeal, the lower appellate court analysed the case put forward by the S.A.478/1998. 3 plaintiffs and came to the conclusion that the plaintiffs could at best claim use of the way only from 1988 and cannot claim any prescriptive right to use the pathway. The lower appellate court also found that there is no necessity for the plaintiffs to use the pathway. Accordingly, the appeal was also dismissed. 6. Notice is seen issued on the following questions of law: “a) Was the courts below justified in dismissing the suit on the reason that there is no evidence to show that the plaintiffs were using the 'B' schedule pathway regularly as a matter of right; and the plaintiffs have also not examined any other witness to substantiate their case without giving an opportunity to the plaintiffs for the same. b) Whether the plaintiffs prescriptive easement right over the 'B' schedule property can be denied if any alternative way is available. c) Whether a successive buyers of a property are entitled to the benefit of easement enjoyed by their predecessors in interest.” S.A.478/1998. 4 7. Learned counsel appearing for the appellants pointed out that both the courts below have omitted to notice the commission report, wherein it is clearly stated that the pathway runs through the property of the defendant which has a width of 3 ½ feet and length of 30 feet. It is also pointed out that there is an opening on the eastern boundary of the plaintiffs' property and a step leading to the pathway, which are sufficient to show that the plaintiffs have been using the pathway running through the property owned and possessed by the defendant. It is also pointed out that at any rate the lower appellate court ought to have allowed the request made by the plaintiffs to remand the case to the trial court for adducing fresh evidence. On the basis of these contentions, it is pointed out that the judgment and decree of the lower appellate court are unsustainable both on facts ad in law. 8. Though the arguments look attractive at the first blush, on a close scrutiny they can be found to be without any merit. It is true that in Ext.C1 report the S.A.478/1998. 5 commissioner has stated about the existence of a way having a width of 3 ½ feet and 30 feet length. Even assuming that the way runs through the property owned and possessed by the defendant, the question still remains as to what is the nature of right on the basis of which the plaintiffs can lay claim to use the pathway. In the plaint the plaintiffs claim both prescriptive right of easement as well as easement by necessity. 9. It is well settled by now that easement right being a precarious right, the plea should be definite. Pleading will have to be certain, definite and clear. In fact there is lack of pleading in this case to advance the case of either prescriptive right of easement or easement by necessity. 10. The lower appellate court has noticed that while the plaintiffs claim through one Thressia, the defendant claims title from the same owner from whom Thresia obtained the property. It is significant to notice that the plaintiffs have not produced their prior documents of S.A.478/1998. 6 title, nor had they examined their predecessors in interest to show that they have been using the way as claimed by the plaintiffs in the plaint. The lower appellate court has taken the view that going by the evidence, Thresia seems to have obtained kudikidappu right in 1988 till then the property was owned by one Muhammed Haji. The lower appellate court also held that even assuming that the plaintiffs had been since 1988 enjoying the pathway as alleged, that is insufficient to claim a right of prescriptive right of easement. The lower appellate court has also noticed that there is no plea regarding easement by necessity at all. 11. These clear findings could not be impeached by the learned counsel for the appellants before this court. The above findings are based on the evidence on record and there is nothing to show that the findings are either perverse of unwarranted by the available evidence on record. No question of law much less any substantial question of law arises for consideration in this Second Appeal. S.A.478/1998. 7 This Second Appeal is without any merits and it is accordingly dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.