IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 SA.No. 74 of 2000(A) ------------------------- AS.1/1997 of SUB COURT, HOSDURG OS.381/1995 of MUNSIFF COURT, HOSDURG .................... APPELLANT(S):RESPONDENTS/DEFENDANTS ---------------------------------------------------- 1. K.V.KRISHNAN, S/O.KOTTANKUNHI, RESIDING AT NELANKARA, KANHANGAD SOUTH P.O., HOSDURG TALUK, KASARAGOD DISTRICT. 2. K.V.NARAYANAN, S/O.KOTTANKUNHI, RESIDING AT NILANKARA, KANHANGAD SOUTH P.O., HOSDURG TALUK, KASARAGOD DISTRICT. BY ADVS. SRI.M.SASINDRAN SRI.BEPIN VIJAYAN RESPONDENT(S):APPELLANT/PLAINTIFF ------------------------------------------------ VADAKKE VEETTIL KOTTAMMA ALIAS CHIRUTHA, D/O. CHOYICHI, RESIDING AT NILANKARA, KANHANGAD SOUTH P.O., HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.A.DINESH RAO THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO.179/2000 IN S.A. NO.74/2000 DISMISSED 22/06/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE. svs P.BHAVADASAN, J. ---------------------------- S.A.No. 74 of 2000 --------------------------------- Dated this the 22nd day of June, 2011 JUDGMENT The defendants in O.S.No.381/1995 before the Munsiff's Court, Hosdurg, who suffered a decree at the hands of the lower appellate court are the appellants. The parties and facts are hereinafter referred to as they are available before the trial Court. 2. The plaintiff claimed to be the owner in absolute possession of the suit property having obtained the same under 3 separate release deeds. She has effected improvements in the property. It is alleged that the defendants have no manner of right over any portion of the plaint schedule property owned and possessed by the plaintiff. On the allegation that the defendants are trying to cut open a pathway through her property, the suit was laid. 3. The defendants resisted the suit. They denied the allegation of trespass. According to them, there is already a pathway existing in the plaint schedule property and they have acquired a prescriptive right of easement to use the same. The S.A.No. 74 of 2000 2 attempt of the plaintiff by filing the suit is to deny them the right of use of the same. On the basis of these contentions, they prayed for a dismissal of the suit. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and 2 and Exhibits marked as Exts. A1 to A7 series from the side of the plaintiff. Defendants had Dws 1 and 2 examined. Exts.C1 to C4 are the commissioner's report and plan. The trial court on an appreciation of the evidence found that the defendants have succeeded in establishing their claim of easement by prescription and therefore dismissed the suit. The plaintiff carried the matter in appeal as A.S.No.1/1997 before the Sub Court, Hosdurg. The lower appellate court found that the trial court had misdirected itself in the appreciation of the evidence and had taken irrelevant aspects into consideration and found the decree and judgment of the trial court are clearly unsustainable. Accordingly, the same was reversed and decree was granted in favour of the plaintiff. S.A.No. 74 of 2000 3 5. Notice is seen is issued on the following substantial questions of law: i. Can injunction be granted in favour of the plaintiff in respect of a property over which the defendants established their easementary right. ii. Were the lower appellate Court right in granting equitable relief like one for permanent prohibitory injunction to the plaintiff who has suppressed material facts from the Court and who approached the Court with unclean hands. iii. Can a witness be disbelieved in so far as one part of the evidence given by him and the other part of the evidence be relied on to suit the convenience of one party. iv. Was the lower appellate Court right in reversing the decree of the trial Court in the facts and circumstances of the case. v. Was the lower appellate Court right in decreeing the suit ? 6. The learned counsel appearing for the appellants pointed out that the lower appellate court was not justified in interfering with the judgment of the trial court, which was based on an appreciation of the evidence and on consideration of the entire facts and circumstances of the case. The trial court had found that there does exist a pathway running through the plaint schedule property and that it was being used by the defendants as claimed by them. The learned counsel also pointed out that S.A.No. 74 of 2000 4 the trial court found that there was no other way for the defendants to have access to the outside world. The evidence of DW2 was taken aid of by the trial court, holding in favour of the defendants. The lower appellate court according to the learned counsel was not justified in discarding the evidence of DW2 and undue emphasis was given holding that the burden of proof is on the part of the defendants to establish the prescriptive right of easement. The lower appellate court has omitted to consider all the relevant aspects as borne out from the evidence in the case and not appreciated the evidence in the proper manner. There is sufficient material to show that except the pathway claimed by the defendants they have no other means of access to their property. Accordingly, it is contended that the lower appellate court was not justified and it was not correct in reversing the decree of the lower court. 7. Per contra, the learned counsel appearing for the respondent pointed out that the trial court had not concerned with the burden of proof and held that the plaintiff it was for to S.A.No. 74 of 2000 5 to establish that the defendants had alternate means of access. The learned counsel went on to point out that the burden is on the defendants to establish the prescriptive right of easement and the plaintiff had no burden to show that the defendants have alternate means of access. It is also pointed out that the defendants had no consistent case. It is not as if the use of the pathway was limited to the defendants. A reading of the deposition of DW1 according to the learned counsel, clearly shows that in fact it was a public way that was being agitated as would be evidenced from Ext.A4 and A5 also. Further, the ingredients necessary to attract prescriptive right of the easement had not been pleaded and spoken to by DW1. These vital aspects have been taken note of by the lower appellate court, which were omitted by the trial court and according to the learned counsel, there are no grounds to interfere with the judgment and decree of the lower appellate court. 8. It is true that going by the commissioner's report, there is a footpath seen running through the plaint schedule property. S.A.No. 74 of 2000 6 The defendants' property is situate on the south-western side of the plaint schedule property. On the eastern side of the plaint schedule property is a public road. The defendants would say that the footpath which is made mention of by the commissioner in his report is the only way which they have to gain access to the outside world and that way had been used for more than 40 years. Thus they have acquired a prescriptive right of easement to the said pathway. 9. As rightly pointed out by the learned counsel for the respondent, the burden is on the defendants to establish that there is a way as claimed by them and they have acquired a prescriptive right of easement to use the same. The fact that the plaintiff has failed to establish that the defendants have alternate means of access is not a ground to grant a decree in favour of the defendants or hold against the plaintiff. It is not for the plaintiff to show that the defendants can gain access to the outside world through other means. It is unfortunate that the details of the footpath shown in the commissioner's report are S.A.No. 74 of 2000 7 not available, for example, the length and width etc. It is also to be noticed that the footpath now shown cuts across the property of the plaintiff dividing into two portions. In fact, it shows that the footpath that is now shown by the commissioner's report is passing along front portion of the plaintiff's house and opens to the public road on the eastern side through the gate put up by her in her compound. 10. Coming to the evidence of DW1, it is his case that apart from him, 5 or 6 families are residing on the western side of the plaint schedule property and they are also regularly using the pathway running through the plaint schedule. According to him, this is the only means of access to the outside world. Strangely enough he did not think it proper to examine any of them in support of his case. Instead, he sought the help of PW2, who is residing far away and claimed to have resided in the vicinity long ago. His evidence has been discussed at length by the lower appellate court and discarded for cogent reasons. He has no case that while he was residing on the southern side of the plaint S.A.No. 74 of 2000 8 schedule property the pathway was claimed the only means of access to the outside world. 11. Coming back to the evidence of DW1 he has a further case that several people residing on the eastern side of the road lying on the eastern side of the plaint schedule property regularly use the pathway in question for gaining access to the paddy field on the western side. If that be true, examined any one of them in support of his claim. 12. Section 15 of the easements Act reads as follows: Acquisition by prescription: Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure is or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years; S.A.No. 74 of 2000 9 the right, to such access and use of light or air, support, or other easement, shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested. 13. The ingredients necessary in the nature of proof required to establish any right of easement by prescription considered in the decision reported in MANIYAN KRISHNAN v. NANUKUTTAN (1986 KLT 203), wherein it was held as follows: “A scrutiny of this section reveals that the following conditions should exist before an easement can become absolute by prescription. (1) There must be a pre-existing easement which must have been enjoyed by the dominant owner; (2) the enjoyment must have been peaceable; (3) the enjoyment must have been as an easement; (4) the enjoyment must have been as of right; (5) the right must have been enjoyed openly; (6) the enjoyment must have been for a period of 20 years and (7) the enjoyment for 20 years must have been without interruption.” 14. One may again go back to the evidence of DW1. Nowhere in chief examination he speaks about the ingredients S.A.No. 74 of 2000 10 to constitute or to attract prescriptive right of easement. Defendants say that they have been using the way for a long time. That by itself is insufficient as could be seen from the decision referred to above. Of course, the defendants say that they were never interrupted in using the pathway. It is here one has to notice that the defendants had initiated proceedings before the RDO characterizing the pathway a public way, which is evidenced by Exts.A4 and A5. One need not place too much reliance on those documents except for the purpose of showing that the defendants have no consistent case. 15. One cannot omit to note that the use of the pathway is not confined to the defendants going by their own evidence. It is to be used by the past several years by the people of the locality. In such a case if prescriptive right of easement can be claimed is open to serious doubt. Whatever that be, there is absolute want of evidence to show that the defendants in the case have acquired prescriptive right of easement to use the footpath running through the property of the plaintiff. The claim S.A.No. 74 of 2000 11 of the plaintiff that it is being used by her to go to the neighbouring properties where her relatives reside seems to be more probable. 16. The lower appellate court was therefore perfectly justified in reversing the judgment and decree of the trial court. No grounds are made out to interfere with the judgment and decree of the lower appellate court. This Second Appeal is without any merits and it is accordingly dismissed. No order as to costs. P.BHAVADASAN, JUDGE. ln