IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 SA.No. 560 of 1995() -------------------- AS.3/1994 of PRINCIPAL SUB COURT,THALASSERY OS.595/1991 of PRINCIPAL MUNSIFF COURT,KANNUR .................... APPELLANT(S)/APPELLANTS/DEFENDANTS: -------------- 1. ELAYAVOOR PANCHAYATH REP. BY ITS SPECIAL GRADE OFFICER, (SPECIAL GRADE SECRETARY), POST MUNDAYAD, KANNUR TALUK, KANNUR DISTRICT. 2. SPECIAL GRADE EXECUTIVE OFFICER(SPECIAL GRADE SECRETARY) ELAYAVOOR PANCHAYATH, POST MUNDAYAD, KANNUR TALUK, KANNUR DISTRICT. BY ADV. SRI.P.V.SURENDRANATH RESPONDENT(S)/RESPONDENT/PLAINTIFF: --------------- KANTAMBATH PUTHIYAPURAYIL BHASKARAN, ELAYAVOOR,POST MUNDAYAD. ADV. SRI.K.RAMACHANDRAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.560 of 1995 -------------------------------------- Dated this the 2nd day of December, 2009. JUDGMENT This Second Appeal arises from judgment and decree of learned Principal Sub Judge, Thalassery in A.S.No.3 of 1994 confirming judgment and decree of learned Principal Munsiff, Kannur in O.S.No.595 of 1991 whereby the plea of easement by way of prescription over the disputed way admittedly passing through the property of appellants was accepted. Respondent claimed that schedule property belonged to him as per Ext.A1, assignment deed of 1964, he constructed a house in that property in the year 1966 and since the time of Ext.A1 onwards he has been using the disputed way which originated from Kannur-Mattannur road on the west and reached the plaint schedule property. Referring to the ingredients of Section 15 of the Easements Act he has pleaded right of easement by prescription. Initially respondent claimed that he was using the way passing through the property of Chovva Co-operative Society (for short, “the society”) and when there was some obstruction from the part of the society for using the pathway he filed O.S.No.257 of 1989 against the society and obtained a favourable decree. Society preferred an appeal but the same was withdrawn. It is later that respondent learnt that a portion of the disputed way passed through property of the appellants and hence the present suit. Appellants denied existence of any such way through their property and at any rate contended that respondent has an alternative access to his property. SA No.560 of 1995 2 Courts below negatived the contention of appellants and granted decree in favour of respondent. Judgment and decree of the first appellate court is under challenge in this Second Appeal. Substantial questions of law framed for a decision are: i. Whether the suit as framed is maintainable? ii. Whether there can be a perfect easementary right by prescription when the respondent is not certain about servient tenement, its possession or ownership and whether the user and enjoyment will be open as of right in that case? iii. Whether courts below are justified in decreeing the suit holding that there is easementary right by prescription when there is no pleading that respondent has perfected the title by continuous and uninterrupted user and enjoyment for 20 years within two years prior to the institution of the suit? iv. Whether the court below is justified in the fact and circumstances of the case in relying upon the judgment and decree in O.S.No.257 of 1989 to which appellants are not parties. SA No.560 of 1995 3 It is contended by learned counsel for appellants that there is no sufficient plea nor evidence concerning the right of easement claimed by the respondent. 2. Ext.A9(a) is the copy of plan attached to the decree in O.S.No.257 of 1989 obtained by the respondent against the society. So far as Ext.A9(a) is concerned, that document is marked not by examining the advocate commissioner who prepared it and hence the same cannot be looked into. It is seen that plaint suffers from an inherent defect in that the servient tenement is not scheduled in the plaint. What is described in the plaint schedule is only the property belonging to the respondent ie., the dominant tenement. Order 7 Rule 3 of the Code of Civil Procedure mandates that when subject matter of the suit is immovable property plaint shall contain a description of the property sufficient to identify the same and in case such property can be identified by boundaries or numbers in a record of settlement or survey, plaint shall specify such boundaries or numbers. That mandatory provision has not been complied so far as the alleged servient tenement is concerned. Hence the suit as framed is not maintainable and respondent is not entitled to the reliefs prayed for. 3. In the light of the above it is not necessary to go into the other questions raised in the Second Appeal. SA No.560 of 1995 4 Resultantly, Second Appeal succeeds. Judgment and decree of the courts below are set aside and the suit will stand dismissed. C.M.P.No.1387 of 1995 will stand dismissed. No cost. THOMAS P.JOSEPH, Judge. cks SA No.560 of 1995 5 Thomas P.Joseph, J. S.A.No.560 of 1995 JUDGMENT 2nd December, 2009.