IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 RSA.No. 151 of 2010(B) --------------------------------- (AS.NO.23/2006 OF ADDL.SUB COURT, THALASSERY, OS.NO.272/2003 OF MUNSIFF'S COURT, KUTHUPARAMBA) .................... APPELLANTS/APPELLANTS/DEFENDANTS: -------------------------------------------------------------- 1. K.P.SUBHAKARAN, S/O.K.K.KUNHIRAMAN, AGED 46 YEARS, WORKSHOP OWNER, PURAKKALAM, KUTHUPARAMBA AMSOM, NARAVOOR DESOM. 2. V.P.CHANDRAN, S/O.V.P.APPA, AGED 51 YEARS, WORKER IN ELECTRICITY BOARD, ELECTRICITY QUARTERS,PALLUR. 3. K.P.GANGADHARAN, S/O.K.KUNHIRAMAN, AGED 71 YEARS, DRIVER, KUNHIPARAMBA HOUSE, KAITHERI EDAM, KANDAMKUNNU AMSOM,KAITHERI DESOM. 4. K.P.SHANMUGHAN, S/O.K.KUNHIRAMAN, AGED 61 YEARS, DRIVER, KUNHIPARAMBA HOUSE, KAITHERI EDAM, KANDAMKUNNU AMSOM, KAITHERI DESOM. BY ADV. SRI.P.U.SHAILAJAN. RESPONDENT/RESPONDENT/PLAINTIFF: ----------------------------------------------------------- CHALIL SREEDHARAN, S/O.KUNHIRAMAN, AGED 66 YEARS,PENSIONER, "SREENILAYAM" KAITHERI EDAM, KANDAMKUNNU AMSOM, KAIDERI DESOM, P.O.NIRMALAGIRI. BY ADV. SRI.GRASHIOUS KURIAKOSE (CAVEATOR). THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2010, THE COURT ON 10/08/2010 DELIVERED THE FOLLOWING: prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 151 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of August, 2010. JUDGMENT The defendants in O.S. 272 of 2003 before the Munsiff's court, Kuthuparamba, who suffered decree at the hands of trial court as well as lower appellate court are the appellants. The parties and facts are hereinafter referred to as they are arrayed before the trial court. 2. The plaintiff claimed to be the absolute owner in possession and enjoyment of the property, which he acquired as per Ext.A1 dated 2.5.1980. The property has access to road on two sides. According to the plaintiff, the defendants approached him and wanted him to provide a way through his property to have access to their property. The plaintiff was not inclined to accept the request. It is stated that the defendants threatened him that they would cut open a way through R.S.A.151/2010. 2 his property. Plaintiff has no other option but to approach the court for appropriate reliefs. 3. The defendants resisted the suit. Defendants 1, 3 and 4 are the brothers of the wife of the plaintiff. It is pointed out that the plaintiff has suppressed material facts and he is not entitled to any relief. According to the defendants, the only passage to their house was through the property owned by the plaintiff, which gave access to these defendants to the public road on the eastern side. The road which runs through the property of the plaintiff has a width of three metres and had infact used by Kunhiraman, the predecessor in interest of the defendants and the members of his family. By virtue of Ext.B1 partition deed dated 4.2.1993, the property, which belonged to Kunhiraman was partitioned among his legal heirs. One of the shares was allotted to the wife of the plaintiff. In the partition deed, it is specifically stated that in continuation of the existing way, a portion of the property is left in common to be used as a way. It is pointed out by the defendants that this is the only R.S.A.151/2010. 3 means of access to their property and they have been using it for a long period. They claimed both prescriptive right of easement and easement by necessity. They prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 and 2 and the documents marked as Exts.A1 to A4. The defendants had D.Ws.1 and 5 and had Exts. B1 to B8 marked. Exts.C1 to C2(a) are the commission reports and plans. Exts.X1 and X1(a) are third party exhibits. 5. On a consideration of the evidence before it, the trial court came to the conclusion that the defendants have failed to establish a right of way through the property owned by the plaintiff and therefore a decree was granted in favour of the plaintiff. Defendants carried the matter in appeal as A.S.23 of 2006 before the Sub Court, Thalassery. The said court after careful consideration of the evidence in the case confirmed the findings of the trial court. Hence this Second Appeal. R.S.A.151/2010. 4 6. The following questions of law are seen formulated in the Memorandum of Second Appeal: “(1) Whether the pleading of plaintiff in O.S. No.272 of 2003 before the Munsiff's Court, Kuthuparamba and his evidence before the court can be accepted to pass a decree in favour of him. (2) Whether there is any suppression of material facts in the plaint and the suppression alleged by the defendants are sufficient enough to deny the discretionary relief of injunction prayed by the plaintiff. (3) Whether any legal presumption can be made that a road is existing through the plaint schedule property on the basis of the recital in Ext.B1, which was also signed by the plaintiff's wife, keeping a common way to the different plots, as a continuation of the way through the plaintiff's property. (4) Whether the identification of the plaint schedule property is a material question in a suit for injunction and whether the plaint schedule property is properly identified in this case. (5) Whether there is any legal ground to pass a decree in favour of the plaintiff in this case. R.S.A.151/2010. 5 (6) whether the pleadings in the written statement and the evidence of the defence witnesses are sufficient to establish their case of easement by prescription and also by necessity. (7) Whether the acts of defendants using the plaintiff's property as a continuation of the passage stated in Ext.B1 amounts to trespass. (8) Whether the judgment and decree passed in A.S. No.23/06 by the Sub Court, Thalassery is judicially correct and is there any procedural irregularity.” 7. Learned counsel appearing for the appellants pointed out that the courts below have erred in law in decreeing the suit in favour of the plaintiff. According to learned counsel, there is clear evidence to show that there was a way running through the property of the plaintiff starting from the main road on the east going towards west and providing access to the defendants to their properties. That road has been in existence for a long time and used even by the predecessor in interest of the defendants. The commission report clearly supports the existence of the way R.S.A.151/2010. 6 and its use was also established by evidence. The courts below were not justified in coming to the conclusion that the way was a newly laid one and that the defendants have no manner of right to use any portion of the plaintiff's property as a way. According to learned counsel, the findings are clearly unsustainable both on facts and in law. 8. Learned counsel appearing for the respondent on the other hand submits that the courts below were fully justified in decreeing the suit. Even though the defendants claim right of way through the property of the plaintiff, they were unable to establish the same. It is clearly found that the way now seen through the property of the plaintiff was a newly laid one and there was no justification for the misdeeds of the defendants. Learned counsel also pointed out that both the courts below have considered whether the defendants are entitled to use any portion of the property of the plaintiff as a way on the basis of either easement by necessity or easement by prescription, and came to the conclusion that the defendants are not entitled to any such R.S.A.151/2010. 7 right. Accordingly, it is contended that no grounds are made out to interfere with the judgments and decrees of the courts below. 9. The dispute in this case relates to a pathway. Ext.C2, which is a comprehensive sketch shows the lie of the properties. There is a road lying on the eastern side of the plaintiff's property running north-south. The plaintiff would say that there is no way through his property. But the defendants would say that there does exist a road starting from the main road on the eastern side and running towards west ending with the property of the second defendant. There was a pathway, which runs to the property of the fourth defendant also. It is significant to notice that the defendants claim the right to use the way on the ground of easement by necessity and on the ground of prescriptive right of easement. 10. It is the case of the plaintiff that no way ever existed through his property and the way now noticed by R.S.A.151/2010. 8 the Commissioner is a newly laid one. The commission report do indicate that the way was recently laid. 11. One has to notice that the plaintiff purchased the property as per Ext.A1 dated 2.5.1980 from one Kunhiraman, who is none other than the predecessor in interest of the defendants. It has come out in evidence that Kunhiraman and his family thereafter was residing on the western side of the plaint schedule property and they had means of access to that property other than through the property sold to the plaintiff. Therefore at that point of time it could not be said that Kunhiraman had any necessity to use any portion of the property transferred to the plaintiff by way of easement by necessity for the reason that Kunhiraman had other means of access. 12. There are two commission reports, namely, Exts.C1 and C2. Both the reports show that the way claimed by the defendants is a recently laid one and the report gives reasons for reaching such a conclusion. R.S.A.151/2010. 9 13. Considerable reliance was placed by the defendants on Ext.B1 document, which is a partition deed of the year 1993. One of the signatories to the document is the wife of the plaintiff. Relying on a recital in the said document, it is contended that there was a way running through the property of the plaintiff. In the said document, it is mentioned that the portion of the property, that is brought for partition is left in common to be in continuation of the already existing way. 14. Both the courts below have noticed that the plaintiff is not a party to Ext.B1 and therefore he is not bound by the recitals therein. Apart from the above fact, another aspect may also be noticed. Ext.A1 shows that there was a partition in the family of the defendants and the executants were given their due shares. The document shows that three of the sharers have got direct access to the way on various sides of the properties allotted to them. Some of those persons are the defendants herein. It is therefore very clear that at the time of entering into Ext.B1 R.S.A.151/2010. 10 document the sharers had access to their property through other means. It is also significant to note that Kunhiraman while transferring the property to the plaintiff as per Ext.A1 document did not reserve any right to himself to use any portion of the property sold as a pathway. There is absolute want of evidence to show that simultaneously with the sale, it became necessary that Kunhiraman needed to have access through the property sold to the plaintiff as there are no other access. In fact the evidence shows that the balance property retained by Kunhiraman had direct access from the northern side. 15. It is extremely doubtful whether there is a way as alleged by the defendants running through the property of the plaintiff. Even assuming that there is a way, the question that arises for consideration is whether the defendants have any manner of right to use the same. As already noticed, Kunhiraman, after selling the property to the first plaintiff has retained the balance property. That property, even according to the defendants, had an access R.S.A.151/2010. 11 from the northern side. It was that property, that was partitioned in the year 1993. If at all any way is provided in the 1993 partition deed, it is to run through the property of the sharers, who have been given shares under the document. If as a matter of fact by the partition of the year 1993, if anyone of the sharers have any property without access, there is no obligation on the part of the plaintiff to provide a pathway. What is significant is that at the time when Ext.A1 document was executed in favour of the plaintiff, there was no absolute necessity to use any portion of the property sold as a way to gain access to the outside world. Therefore the claim based on easement by necessity has necessarily to fail. 16. It will be useful to refer the evidence of D.W.1 in this regard. It is admitted by him that when the properties were divided in 1993, the property that was partitioned had access to the outside world through other means. The defendants have no case that at that time there was any necessity to use any portion of the plaintiff's R.S.A.151/2010. 12 property as a way. D.W.1 would say that he had no knowledge whether his father had made any claim for easement by necessity over any portion of the property owned and possessed by the plaintiff. D.W.1 would say that he came to know about the suit when the commissioner comes to visit the place. One cannot overlook the criticism levelled against the commissioner for being a member of the office from which there was appearance for one of the defendants. The criticism is without any basis whatsoever. 17. Coming back to the evidence of D.W.1, he has stated that Kunhiraman, his predecessor in interest, who had sold the property to the plaintiff as per Ext.A1 document, had not retained any portion of that property for any purpose. There is nothing to indicate that at the time of sale Kunhiraman had asserted any way through the property of the plaintiff by way of necessity. If that be so, the defendants cannot also claim the same. 18. What now remains to be considered is the claim regarding prescriptive right of easement. At the R.S.A.151/2010. 13 outset itself, one may notice that the commission reports indicate that the pathway was recently laid. The records indicate that even after an interim order was issued by the trial court, the defendants continued their misdeeds. They alleged to have widened the pathway. 19. The partition among the defendants was of the year 1993. Since it is not shown that the predecessor in interest of the defendants had ever used any portion of the plaintiff's property as a pathway, the use of the portion of the property of the plaintiff as a pathway can arise only after the partition Ext.B1 of the year 1993. If that be so, the defendants have not been using the disputed way for the statutory period. 20. It could thus be seen that the defendants can claim to use any portion of the property of the plaintiff neither by way of easement by necessity nor as easement by prescription. The findings of the courts below to that effect are fully justified. No grounds are made out to R.S.A.151/2010. 14 interfere with the judgments and decrees of the courts below. This appeal is without merits and it is accordingly dismissed. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.