IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 RSA.No. 548 of 2010(F) --------------------------------- [AS.NO.78/2007 OF II ADDITIONAL DISTRICT COURT, THIRUVANANTAPURAM, OS.NO.110/2004 OF IST ADDITIONAL MUNSIFF'S COURT,THIRUVANANTHAPURAM] .................... APPELLANTS/DEFENDANTS 1 & 2: -------------------------------------------------- 1. S.LALITHA KUMARI, AGED 43 YEARS, KEDARAM, VALLAKADAVU P.O., THIRUVANANTHAPURAM. 2. V.BHUVANADAS, AGED 55 YEARS, S/O.VASUDEVAN, KEDARAM, VALLAKADAVU P.O, THIRUVANANTHAPURAM. BY ADV. SRI.P.S.RAMESH KUMAR. RESPONDENTS/RESPONDENTS/PLAINTIFF & ADDL.3RD DEFENDANT: ----------------------------------------------------------------------------------------------------- 1. V.VASANTHAKUMARI, AGED ABOUT 60 YEARS, D/O.SAROJINI AMMA, MANITHALA HOUSE NO.9, K.B.A.C. LANE, VALLAKADAVU P.O., THIRUVANANTAPURAM. 2. SREEKALA, D/O.SANTHAKUMARI, P.K.BHAVAN, VIRUTHIVILAKATHU MURI, MUTTATHARA, NOW PERMANENTLY RESIDING AT PADMABHAVAN, T.C.76/373, ANAYARA, THIRUVANANTHAPURAM. R1 & R2 BY ADVS. SRI.M.R.ANANDAKUTTAN, SMT.M.A.ZOHRA, SRI.R.S.MADHU, SRI.MAHESH ANANDAKUTTAN. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/08/2010, THE COURT ON 19/08/2010 DELIVERED THE FOLLOWING: prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 548 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of August, 2010. JUDGMENT Aggrieved by the concurrent decree against them, the defendants in O.S. 110 of 2004 before the Munsiff's court, Thiruvananthapuram has come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for declaration of title, putting up of boundary and for injunction. The plaintiff and the first defendant are sisters. The second defendant is the husband of the first defendant. According to the plaintiff, plaint A, B and C schedule properties are portions of 64 cents of land owned by the father of the plaintiff and the first defendant. Out of that 4.5 cents was acquired for a canal and 5 cents was sold to a stranger. 5 cents on the southern side of the 5 cents sold to the stranger was gifted to the plaintiff by RSA.548/2010. 2 Ext.A5. Thereafter, the parents of the plaintiff and the first defendant executed Ext.A1 will by which they bequeathed their properties to their children. On the very same day of execution of the Will, 5 cents on the eastern side of the north western 5 cents sold earlier was sold to the first defendant herein. Later on Ext.A2 Will was executed whereby according to the plaintiff certain modifications were made to the earlier will. By the will 11 cents of property on the eastern side of the 5 cents sold to the plaintiff was bequeathed to the plaintiff and 18 cents property on the eastern side of the 5 cents sold to the first defendant was bequeathed to her. The plaintiff therefore had a total extent of 16 cents and the first defendant had 23 cents. Plaintiff's property is shown as plaint A and that of the first defendant was C schedule property. It is alleged that a pathway of 4 links width was provided starting from the Corporation road on the western side, runs through the northern boundary of plaint A schedule and southern boundary of the north western 5 cents and first defendant's property, which turns RSA.548/2010. 3 towards south at the north eastern corner of plaint A schedule and runs upto the northern side of the property scheduled as item No.9 in Ext.A1 through the eastern boundary of plaint A schedule and the western boundary of plaint C schedule property. The said pathway is shown as B schedule. Father of the plaintiff died on 17.5.1989 and thereafter the mother of the plaintiff in 1996 relinquished her share over plaint A schedule property and therefore the plaintiff became the absolute owner of the same. According to the plaintiff, the defendants began to make attempts to reduce parts of the pathway into their possession and annex it to 23 cents obtained by them. They have no right to do so. The plaintiff therefore prayed for a declaration over plaint B schedule property by way of easement by grant. She also sought prohibitory injunction restraining the defendants from preventing her from putting up a boundary wall on the northern boundary of her property separating B schedule pathway from plaint A and C schedule properties. RSA.548/2010. 4 3. The defendants resisted the suit. They denied the existence of plaint B schedule pathway. The bequeath, sale and will were admitted. It is pointed out that at the time of execution of sale deed No.508 in respect of 5 cents in favour of the first defendant a way was provided from the western Corporation road to reach 5 cents of property sold to her. According to the defendants the pathway which runs in between the property of the plaintiff and the 5 cents given to her ends on the south western corner of their property. The plaintiff has already put up a compound wall on the northern side of her property separating the pathway. The pathway is currently under the possession and enjoyment of the defendants. It is pointed out that Ext.A1 will which was executed in 1980 was superseded by Ext.A2 will which was executed in 1988. Therefore the terms and conditions in Ext.A1 will cannot be relied on. The plaintiff has another way for access to outside world. The allegation that plaint B schedule pathway runs along the entire northern boundary of the plaintiff's property was denied. It is also pointed out RSA.548/2010. 5 that it was not necessary for the plaintiff to have access to the pathway shown as plaint B schedule property as she has direct access to the Corporation Road on the western side. On the basis of these contentions, they prayed for a dismissal of the suit. 4. After the issues were settled an amendment was sought to the written statement incorporating some more contentions. 5. The evidence consists of the testimony of P.W.1 and the documents marked as Exts.A1 to A7 from the side of the plaintiff. The defendants examined D.Ws.1 to 3 and Exts. B1 to B3 marked. C.Ws. 1 and 2 were examined a court witnesses and Exts.C1 and C1(a) were marked. The trial court on an evaluation of the evidence in the case found that the plaintiff has succeeded in establishing the right of easement by grant and accordingly granted a decree which reads as follows: RSA.548/2010. 6 “In the result, the suit is decreed as follows: (1) It is declared that the plaintiff is having absolute title and ownership over the entire stretch of plaint A schedule property and that she is having right of way of easement by grant over plaint B schedule pathway as specified in Ext.C1 (a) plan. (2) The plaintiff is permitted to put up boundary with granite basement and cement plastered brick superstructure to a height of 5 feet on the northern and eastern boundary of plaint A schedule property in EFGHI line. The plaintiff is at liberty to put up a granite basement to a height of 1.5 feet from ground level on the southern and eastern side of plaint C schedule property separating it from plaint B schedule pathway in W X Y O line at her own cost. The right of the first defendant to make necessary alteration or addition to the aid granite basement (proposed) for the convenient enjoyment of her property from time to time without affecting the boundary of plaint B schedule pathway is protected. (3) The defendants 1 and 2 are restrained by a decree of permanent prohibitory injunction from trespassing into any portion of plaint B schedule RSA.548/2010. 7 pathway, plaint A schedule property and from committing any kind of waste therein. (4) In the peculiar facts and circumstances of this case, the parties are directed to bear their respective costs. (5) Ext.C1(a) plan shall be appended to the decree.” 6. The defendants carried the matter in appeal as A.S. 78 of 2007. The appellate court reconsidered the evidence and found that the findings of the trial court were justified and the appellate court too held that the plaintiff has right of easement by grant over plaint B schedule pathway. Accordingly the appeal was dismissed. It is the said judgment and decree that are assailed before this court. 7. The following questions of law have been formulated in this Second Appeal: “(i) In a suit for declaration of easement of right to pathway by grant, whether the plaintiff is entitled to succeed with the aid of stipulation in a cancelled will and that too stipulation meant for RSA.548/2010. 8 access to the pathway available for different legalities? (here D1 and D3) (ii) After holding that Ext.A1 stands cancelled by Ext.A2 and A2 is not a codicil but a subsequent Will, can the court rely on the stipulation in A1 and A4 plan attached A1 for finding the existence of B schedule pathway? (iii) Is it correct to hold that B schedule is properly identified by the commissioner and surveyor by merely following the Ext.A4 plan attached to the cancelled will Ext.A1 and a declaration could be given to the plaintiff over such an imaginary pathway? (iv) Whether the weakness of the defendants 1 and 2 in establishing their counter claim, automatically entitles the plaintiff to succeed in a suit for declaration over a right of way by easement by grant? (v) Whether the plaintiff could file a suit to establish a pathway through the neighbouring property close to plaintiff's entire boundary within the neighbouring property merely for pleasure and without any manner of right over the same?” RSA.548/2010. 9 8. Learned counsel appearing for the appellants pointed out that both the courts below have grievously erred on facts and in law. Considerable reliance was placed by the courts below on Ext.A1 will which, according to the court, stood superseded by Ext.A2 will. After the execution of Ext.A2 will, Ext.A1 will did not survive and borrowing the terms of Ext.A1 Will to pass a decree against the defendants is not in accordance with law. It was also pointed out that the finding of the courts below that the plaintiff has a right of easement by grant over the pathway is incorrect. The pleadings in the plaint are otherwise. There is nothing in Ext.A2 Will to show that the pathway laid by the testator was for the use of the plaintiff also. According to learned counsel, the plaintiff need not use that pathway since she had direct access to the Corporation Road on the west. It is pointed out that the judgments and decrees of the courts below are liable to be set aside. 9. Learned counsel appearing for the respondents on the other hand pointed out that the courts below have RSA.548/2010. 10 considered the evidence on record and had come to a just conclusion. One and a half cents was set apart by the testator as pathway and that is for the use of all the sharers who got properties under Ext.A2. It is pointed out that Ext.A1 will contain a clear recital that the pathway set apart is for the use of all the sharers, who obtained property under the Will. In the light of this specific recital, it is idle for the appellants to contend that the plaintiff did not have any manner of right to use plaint B schedule pathway. 10. This court was taken through the entire evidence and documents in considerable detail. It is felt that the appeal will have to succeed on a very short ground. 11. The courts below have noticed that by the execution of Ext.A2 Will, Ext.A1 Will stood superseded. But surprisingly enough, both the courts below have borrowed the terms contained in Ext.A1 Will in coming to the conclusion that the plaintiff has a right of easement by grant to use plaint B schedule pathway. It is true that in Ext.A2 a way has been set apart, but unlike in Ext.A1 Will there is no RSA.548/2010. 11 recital as to the right of use by the sharers of the way set apart in Ext.A2. Both the courts below presumed that the way so set apart in Ext.A2 Will is for the use of all the sharers, who got property as per Ext.A2 Will. It is open to serious doubt whether in the absence of a recital like the one in Ext.A1, such a conclusion could have been reached. 12. Apart from the said fact, the plaintiff has no case that plaint B schedule pathway runs through the property owned and possessed by the defendants. At the time of argument this court repeatedly ascertained from the counsel for the respondents whether plaintiff has a case that plaint B schedule pathway runs through the property owned and possessed by the defendants. The reply was in the negative and it was made clear that B schedule property does not run through the property of the defendants and it is a common pathway set apart by the testator in Ext.A2 for the use of all the sharers. If that be so, the claim of easement by grant falls to the ground. For claiming right of easement, there are two tenements, i.e. dominant tenement RSA.548/2010. 12 and servient tenement owned by two different persons. In the case on hand, even assuming that the plaintiff is the dominant tenement owner, when it is made clear that plaintiff has no case that plaint B schedule property runs through the property owned and possessed by the defendants and exclusively belonging to her, there is no servient tenement and owner. This vital aspect has been omitted to be noticed by both the courts below. 13. At the time of argument it was made clear by the learned counsel for the respondents that the case of the plaintiff was that the properties set apart to the sharers excluding 1.5 cents of property set apart as way and several sharers are entitled to use the same. This is the case projected at the time of argument of the Second appeal and it does not find a place in the judgment of the courts below. 14. It is significant to notice that in Ext.A1 Will there is a specific recital that the way set apart by the testator is for the use of all the sharers. By the execution of RSA.548/2010. 13 Ext.A2 Will Ext.A1 Will superseded. Unlike in the case of Ext.A1, there is no recital in Ext.A2 that all the sharers are entitled to use the pathway for which 1.5 cents has been set apart. Whether all the sharers can use the same or not is a matter open to debate. Of course, there is nothing in Ext.A2 to show that the use is confined to any particular sharer. 15. Learned counsel appearing for the appellants pointed out that the case now put forward by the respondents does not find a place in the decisions of the courts below. Before the courts below the specific claim was of easement by grant. There was no case at all for the plaintiff to show that the way set apart was for the use of all the sharers and that it did not belong to the defendants. The definite stand then taken was that the plaint B schedule property runs through the property owned and possessed by the defendants and they have obstructed its use by the plaintiff. Learned counsel pointed out that the present claim made is that it is a common pathway and the present claim is not based on easement by grant. A new case is set up and RSA.548/2010. 14 the defendants had no opportunity to meet such a case. It is contended that on the basis of Ext.A6 sale deed in favour of the first defendant by her father the pathway was also assigned to her. Therefore the claim of the common pathway will not lie. 16. The question as to whether the pathway is a common pathway and who are entitled to use the same are matters to be determined afresh. This aspect of the case has not been gone into by the courts below. As already noticed, the courts below were carried away by the claim of easement by grant. A reading of Ext.A2 Will, which superseded Ext.A1 Will will show that the properties were allotted to various sharers excluding the extent of land set apart for the way. It would appear from a reading of Ext.A2 that B schedule pathway does not run through the property of any of the sharers and lies outside the property given to various sharers. As to whether Ext.A6 takes in the pathway and whether the pathway could have been assigned in favour of the first defendant are matters to be determined RSA.548/2010. 15 afresh. At any rate, the claim of easement by grant cannot be upheld for reasons already stated. 17. Further, the decree passed by the lower appellate court shows that defendants 1 and 2 are restrained by prohibitory injunction from trespassing into any portion of plaint B schedule pathway. On the very face of it, the said portion of the decree is unsustainable both on facts and in law. Assuming that easement by grant is to be upheld, it will have to be conceded that the defendants are the owners in possession of B schedule pathway. In which case, they cannot be injuncted from entering that property. Even assuming it as a common pathway, then also, its use by the defendants cannot be prevented. Viewed from any angle, the said portion of the decree is clearly unsustainable. 18. Whatever that be, it has already been observed that the real issues involved need determination afresh by the courts below. At any rate, claim of easement by grant cannot be sustained for reasons already mentioned. RSA.548/2010. 16 In the result, this appeal is allowed, the impugned judgments and decrees are set aside and the matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. Parties shall appear before the court below on 20.9.2010. Office will return the records forthwith. The court below may make every endeavour to dispose of the suit as expeditiously as possible. P. BHAVADASAN, JUDGE sb.