IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 SA.No. 465 of 2000(E) --------------------- AS.183/1995 of II ADDITIONAL DISTRICT COURT,KOLLAM OS.18/1993 of MUNSIFF COURT, KARUNAGAPPALLY .................... APPELLANT(S)/RESPONDENT/PLAINTIFF NO.1: -------------- KUTTY THANKAMMA, AGED 4 YEARS, MOHANAVILASOM VEEDU, THEKKUMURI KIZHAKKEMURI, THAZHAVA VILLAGE. BY ADV. SRI.NAIR AJAY KRISHNAN SRI.NAGARAJ NARAYANAN RESPONDENT(S)/APPELLANT AND RESPONDENTS 2 AND 3 /DEFENDANT AND PLAINTIFFS 2 AND 3: --------------- 1. NEELAKANTAN APPUKUTTAN, AGED 38 YEARS, VELIPADINJATTATHIL VEEDU, THEKKUM MURI, KIZHAKKU MURI, THAZHAVA VILLAGE. 2. K.KUTTY, AGED 77 YEARS, MOHANAVILASOM VEEDU, THEKKUM MURI, KIZHAKKUMURI, THAZHAVA VILLAGE. 3. KUTTY RETNAMMA, AGED 42 YEARS, THADATHIL VILAYIL THEKKETHIL, ELAMPALLICKAL, NOORANAD. ADV. SRI.P.SIVARAJ FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.465 of 2000 -------------------------------------- Dated this the 19th day of February, 2009. JUDGMENT Parties are referred as plaintiffs and defendant for convenience. The substantial questions of law raised for a decision are - (i) Whether the existence of clear cut and demarcated pathway is necessary for acquisition of easement by prescription under Section 15 of the Easements Act (for short, “the Act”), (ii) Whether plaintiffs' user for over 20 years and existence of pathway for ingress and egress are sufficient for prescription of the right under Section 15 of the Act. (iii) Whether it is necessary to demarcate and identify the property owned by the same person to acquire a right of easement by way of necessity under Section 13(b) of the Act. 2. Plaint A schedule takes in three items. Facts which are not in dispute are that plaint A schedule item No.1 belonging to plaintiff No.1 as per Ext.A1, assignment deed No.1324 of 1977 dated 16.5.1977. Item Nos.2 and 3 of the plaint A schedule belong to plaintiff Nos.2 and 3. A house was constructed in item No.1 of the plaint A schedule (obviously after its acquisition SA No.465/2000 2 as per Ext.A1. Plaint B schedule is the property belonging to the defendant as per Ext.B1. That property is situated on the western side of plaint A schedule property. There is a panchayat road on the western side of the plaint B schedule. Plaintiffs alleged and claimed that they have been residing in the old house in plaint A schedule item Nos. 2 and 3 since the last 75 years, thereafter using the funds of the husband of plaintiff No.1 a house was constructed in item No.1 of the plaint A schedule after its acquisition as per Ext.A1 and that, since the last 75 years plaintiffs have been using a pathway having length of 100 feet and width of four feet which originated from the house in the plaint A schedule, went along northern side of plaint B schedule towards west and reached the Panchayat road on the further west. Plaintiffs claimed that they have been using that pathway without obstruction as of right during the said period of 75 years. They have no other means to access the plaint A schedule. Since plaint A and B schedules originally belonged to the same person and since they have no other means of access to the plaint A schedule, they also have a right of easement by way of necessity. Defendant denied the claim of the plaintiffs regarding the existence of plaint C schedule and its alleged user as claimed by the plaintiffs. He claimed that plaint B schedule was originally a paddy field and after he purchased it as per Ext.B1, he reclaimed it and started betel leaves cultivation. Plaintiffs are under the impression that plaint B schedule takes in puramboke land and that caused the filing of the suit. SA No.465/2000 3 Defendant claimed that plaintiffs have other means of access to the plaint A schedule. In the court below, an advocate commissioner (CW1) inspected the properties originally on 24.1.1993 and submitted Ext.C1 report. Advocate commissioner reported that he could see a pathway through the middle of the plaint A schedule items lying east-west towards it north western corner and, indications of a vague pathway through the northern side of the plaint B schedule. Advocate commissioner noticed that recently mud was deposited at that portion. Advocate commissioner further noticed a pond towards the north- western corner of the plaint A schedule and north-eastern corner of the plaint B schedule which even at the time of inspection on 24.1.1993 was filled with water. Advocate commissioner reported that he was not able to find any other means of access to the plaint A schedule. Same advocate commissioner again inspected the properties on 7.4.1994 and submitted Ext.C2, report where, there is reference to two alternate ways – one towards south from plaint A schedule along the property of one Mohanan and another towards east from plaint A schedule going across the thodu along the slab and then along the property of one Pavithran. Advocate commissioner reported that the way towards east had oldness of about one year and along the property of Pavithran, about five years. Plaintiff No.1/appellant gave evidence as PW1 and testified to her case. PW2 claimed to be a native of that locality supported the plaintiffs. Defendant gave contra evidence as DW1. Learned Munsiff found in favour of SA No.465/2000 4 existence of the disputed pathway and granted relief on the finding that plaintiffs have prescribed a right of easement by prescription . Defendant carried the matter in appeal. First appellate court found that existence of the disputed pathway or its use for the statutory period are not proved by the plaintiffs and hence, plaintiffs are not entitled to get declaration of easement by way of prescription. Plaintiffs were non-sued. 3. It is contended by the learned counsel for the plaintiffs that in and every case, existence of a well found pathway may not be necessary to grant a declaration regarding the easement by way of prescription and in this case, there is sufficient evidence to show that the existing pathway was obliterated by the defendant by depositing mud recently over that portion of the pathway. It is contended by the learned counsel that existence of alternative pathway having not proved, first appellate court ought to have concurred with the finding of the trial court that the plaintiffs were using the disputed pathway for the statutory period. It is also contended that at any rate, plaintiffs are entitled to get a pathway as an easement by way of necessity under Section 13(b) of the Act. 4. To claim relief on the strength of easement by way of prescription, it must be shown that the person claiming it has been using a defined pathway for the statutory period of 20 years as of right, peaceably, continuously, openly and without obstruction. In this case it is true that PWs 1 and 2 gave evidence SA No.465/2000 5 in support of the existence of the pathway and its user for the statutory period. CW1 also stated about the existence of the disputed pathway as reported in Ext.C1. True, he found the existence of the pathway through plaint A and B schedule properties and indications of a pathway through the B schedule with mud recently deposited at that place. Ext.A1, which is the only document of title produced by the plaintiffs is in respect of the plaint A schedule item No.1 belonging to plaintiff No.1 and that is of the year 1977. Even as admitted by the plaintiffs, a house was constructed in that property only after 1977 whereas the suit is filed in the year 1993. The contention is that there was a thatched house in item Nos.2 and 3 of the plaint A schedule where the plaintiffs were residing with family. Learned counsel invited my attention to Ext.C1 where it is stated that there was a thatched shed in plaint schedule item Nos.2 and 3 where the advocate commissioner found a burning lamp. Plaintiffs who claimed that they were residing in the thatched shed in item Nos.2 and 3 of the plaint A schedule even prior to 1977 did not produce the title deeds in respect of item Nos.2 and 3 in any of the courts below nor in this Court. The non-production of the title deeds in respect item Nos.2 and 3 to prove that there was a house, be it a thatched shed, even prior to 1977 is material. When the plaintiffs could have produced those title deeds or other documentary evidences to prove their residence in item Nos.2 and 3 at any time prior to 1977, they attempted to prove the same through the oral evidence of PWs 1 and 2. PW1 has naturally spoken in SA No.465/2000 6 support of her case. She stated about residence in item Nos.2 and 3 of the plaint A schedule for 75 years, but PW2 stated about residence for 50 years. Suffice to say, there is no acceptable evidence to show that plaintiffs were residing in plaint A schedule prior to 1977 so as to prescribe a right of easement under Section 15 of the Act by user for a period of 20 years before the institution of the suit. 5. The existence of a pathway is also not satisfactorily proved. According to the defendant, plaint B schedule was a paddy field and he reclaimed it after its acquisition. True, in Ext.B1, the nature of plaint B schedule is stated as ‘tharanilam and nilamvirivu’. That description proved that B schedule was not a ‘purayidom’ as Ext.A1 describes the plaint A schedule items. The description in Ext.B1 corroborated the version of DW1 that it was a paddy field. It has been consistently held by this Court that user of paddy field will not confer any right by way of easement of prescription since in this country it is usual for people to walk along unclosed paddy filed but that cannot be treated as a user as of right. 6. The advocate commissioner has also noticed a pond towards the north-western portion of plaint A schedule and north-eastern portion of plaint B schedule. According to the defendant, during the rainy season the pond is flooded with water and it overflows into the surrounding places and hence no one could walk along that place during that season. That also corroborated the SA No.465/2000 7 version of the defendant that there was no such way in existence and plaint B schedule was a paddy field. 7. It is pertinent to note that though the advocate commissioner referred to the existence of a pathway, he has not reported its length or width as against the claim of the plaintiffs that the pathway has a length of 100 feet and width of four feet. With such a vague description, no relief of declaration can be granted. 8. So far as the claim of easement by way of necessity is concerned, though the plaintiffs pleaded that plaint A and B schedules originally belonged to the same person, that was denied by the defendant in the written statement. No evidence is produced by the plaintiffs to prove that plaint A and B schedules originally belonged to the same person and by transfer, plaintiffs and defendant came into the ownership and possession of the respective tenements. When plaintiff No.1 was questioned about that, she was not able to give any satisfactory evidence regarding the ownership of the two tenements with the same person before the plaintiffs and defendant got title and possession. 9. When a plea of right of easement by way of prescription is raised, it is not necessary to go into the question of alternative ways and so far as the claim of easement by way of necessity is concerned, in the absence of any evidence regarding ownership of the two tenements with the same person at some earlier point of time, question whether there is any other means of access SA No.465/2000 8 to the plaintiffs does not assume importance. At the same time, I also note that the advocate commissioner has referred to some alternative ways. According to the learned counsel for plaintiffs those alternative ways were created after the advocate commissioner inspected the properties on 24.1.1993. It is difficult to think that for the purpose of this case, defendant was able to create those ways even along the properties of others. I am not inclined to accept that contention. 10. First appellate court has considered the entire evidence and non- suited the plaintiffs. There is no reason to interfere with that finding of fact. Appeal fails. It is dismissed. Parties shall bear their respective cost. C.M.P.No.1320 of 2000 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.465/2000 9 Thomas P.Joseph, J. S.A.No.465 of 2000 JUDGMENT 19th February, 2009