IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 SA.No. 931 of 2000(C) -------------------------- AS.46/1997 of IST ADDL. DISTRICT COURT,THRISSUR. OS.677/1989 of MUNSIFF COURT, CHAVAKKAD. .................... APPELLANT(S): APPELLANT IN THE COURT BELOW AND PLAINTIFF IN THE ------------------------ TRIAL COURT. * SANKUNNI S/O. VALIYAKKIL SANKARAN, ELAVALLY AMSOM, DESOM, CHAVAKKAD TALUK. * (DIED) *ADDL. A2 & A3 IMPLEADED. 2. ANJANADEVI, D/O.SANKUNNI,AGED 32 VALIYAKKIL HOUSE, ELAVELI SOUTH , CHAVKKAD P.O., CHAVAKKAD TALUK, THRISSUR DISTRICT. 3. KARTHYAYANI AMMA, W/O.SANKUNNI,AGED 72, DO. DO. *LRS OF THE SOLE APPELLANT ARE IMPLEADED AS ADDL. A2 & A3 AS PER ORDER DTD. 13.8.2010 IN IA. 1739/10. BY ADVS. SRI.K.RAMACHANDRAN SRI.K.MANU RAJ RESPONDENT(S): RESPONDENTS IN THE COURT BELOW-DEFENDANTS IN THE ---------------------------- TRIAL COURT. 1. ABDULRAHIMAN, S/O. PUZHANGARA ILLATH AHAMMED, ELAVALLY AMSOM, DESOM, CHAVAKKAD TALUK. 2. BHASHEER, S/O. NALAKATH PUTHUVEETTIL MOOPPIL MUHAMMED, ELAVALLY AMSOM, DESOM,CHAVKKAD TLAUK. 3. KUNJIMOL, W/O. NALAKATH PUTHUVEETTIL MOOPPIL MUHAMMED , DO. DO. 4. KATHIRMAN, S/O. NALAKATH PUTHUVEETTIL MOOPPIL MUHAMMED, DO. DO. 5. SABIYA, D/O. DO. DO. R4 & R5 BY ADVS. SRI.B.KRISHNA MANI, SRI.V.PREMCHAND. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2010, THE COURT ON 03/09/2010 DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 931 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of September, 2010. JUDGMENT The plaintiff in O.S.677 of 1989, who was non-suited by the courts below is the appellant. 2. The dispute relates to a pathway, which the plaintiff alleges runs along the southern boundary of the first defendant's property. The first defendant has property on the western side of plaintiff's property. Further west is the Peruvalloor-Mattom public road. According to the plaintiff, the pathway commences from the said public road, runs through the southern side of the first defendant's property and reaches his property. According to the plaintiff, that pathway is the only means of access to his property from the outside world. He claims that the pathway had a width of 3 feet and a length of 73 feet from the public road to plaint A schedule property. He claimed that he has got right of S.A.931/2000. 2 easement by prescription to use the said pathway. It is also contended that plaint A Schedule property, which is owned by the plaintiff, B schedule pathway and the property now owned and possessed by the defendants were earlier owned by a common owner thereby indicating that the plaintiff has a claim of easement by necessity also over the pathway. Claiming that the defendant was trying to close down the pathway, the plaintiff laid the suit. 3. The first defendant resisted the suit pointing out that there is no bonafides in the suit and there is no pathway as alleged by the plaintiff. He had no right in the property. In fact the plaintiff wanted him to sell the property to him for the low price offered by him, to which he was not amenable. Pointing out that there is no pathway as alleged in existence and also contending that the plaintiff has no manner of right to use any portion of the property as a pathway, he prayed for a dismissal of the suit. S.A.931/2000. 3 4. Second and third defendants, who are the subsequent assignees from the first defendant, supported the first defendant. 5. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendants examined D.W.1 and had Ext. B1 marked. Exts. C1 to C8 are the commission reports and sketches. On an evaluation of the evidence in the case, the trial court came to the conclusion that there is no pathway as alleged in the plaint and the plaintiff had other means of access to the outside world. Therefore relief was declined to the plaintiff. 6. In appeal the lower appellate court independently considered the evidence on record and came to the same conclusion as the trial court. Accordingly the appeal was dismissed. The concurrent findings against the plaintiff are challenged in this appeal. S.A.931/2000. 4 7. The following questions of law are seen raised in the Second Appeal: “A. Were the courts below justified in mis-appreciating and even ignoring the various vital facts and datas revealed in the commissioner's reports in support of the plaintiff's case relating to B schedule way? B. Did not the courts below err in placing the entire burden of proof on the plaintiff? C. Was the court below justified in finding that prescriptive right can never be acquired over a ridge in a paddy field? D. Did not the courts below err in dismissing the suit?” 8. Learned counsel appearing for the appellant pointed out that the courts below were not justified in non-suiting the plaintiff. It was contended that on going through the commission report, it can be seen that the pathway as alleged does exist. There is nothing to indicate that the plaintiff has any other means of access to the outside world. It was contended that the pathway made S.A.931/2000. 5 mention of in Ext.B1, of which considerable reliance was placed by both the courts below is for the inter se use of the sharers of that deed and does not provide access to the outside world. It was also pointed out that in the plaint it was averred that the plaintiff and his predecessors have been using the way for a long time and they have acquired prescriptive right of easement to use the same. There is no denial of this pleading in the plaint in the written statement filed by the defendants and therefore it can be taken as admitted. These vital aspects were omitted to be noticed by the courts below and according to learned counsel the judgment and decrees are clearly unsustainable both on facts and in law. 9. Learned counsel appearing for the respondents on the other hand pointed out that the courts below have considered all the aspects. It is not correct to say that the way made mention of in Ext.B1 is for the inter se use of the sharers under that deed. It provides access to the outside world. Attention of this court was drawn to Exts.C3 to C8 S.A.931/2000. 6 and it is pointed out that the way made mention of in the partition deed is the way which gives access to the plaintiff to the outside world. Learned counsel drew the attention of this court to the evidence of P.W.1 and it is pointed out that in fact the plaintiff admits existence of other ways. But he says that he is not willing to use those ways. It was pointed out by learned counsel for the respondent that the ingredients necessary to attract easement by necessity or easement by prescription are not available in the case on hand and both the courts below were justified in holding so. It is significant to notice, according to learned counsel that the plaintiff started residence in plaint A schedule property only in 1979 and the suit had been laid in 1989. The statutory period so as to attract prescriptive right of easement is therefore not completed. There is no definite pleading or evidence on record to justify a claim of easement by necessity also. According to learned counsel, therefore both the courts below were justified in dismissing the suit. S.A.931/2000. 7 10. The courts below have placed considerable reliance on the commission reports and plans. They have also relied on the recitals contained in Ext.B1. It is true that the lower courts have also adverted to the boundaries of the property owned by the plaintiff which was allotted to him as per Ext.B1 partition deed. Both the courts below have found that the western boundary of item No.1 in A schedule to the partition deed is shown as plaint B schedule, which was a paddy field and they came to the conclusion that there could not have been a way as alleged by the plaintiff. 11. One of the main contentions taken by the appellant is that the pathway made mention of in Ext.B1 is for the use of the sharers made mention of in Ext.B1 and it does not provide access to the outside world. B schedule pathway had a width of 3 feet and a length of 73 feet. As per the plaint, it runs along the southern side of the first defendant's property. The defendant's property lies on the western side of the plaintiff's property and further west is the road. S.A.931/2000. 8 12. One of the main contentions taken is that in paragraphs 4 and 5 of the plaint it is averred that the plaintiff as well as his predecessors were using plaint B schedule pathway. It needs to be noticed that the plaintiff claims both easement by prescription and easement by necessity. One may at once notice that the pleas are inconsistent. While one has its statutory origin, the other has its origin in doctrine of lose grant. It may be possible to say that the plaintiff can take inconsistent pleas in the plaint. But at the time of evidence, he has to select one. He has not done so in the present case. The origin, nature, use and termination of the two types of easement are totally different. It is also necessary to notice that nowhere in the plaint the ingredients necessary to attract easement by necessity is seen pleaded. In the written statement filed by the first defendant he has stated that through his property, which is situate on the northern side of the property assigned to the second defendant, there was a way running through its northern side and it continues to exist. That was S.A.931/2000. 9 the way used by the plaintiff and his brothers and it is pointed out by the defendants that it is that way made mention of in Ext.B1 partition deed. 13. The plaintiff places considerable reliance on Exts.C1 and C2 report and sketch. That report was an ex parte report and it is true that it mentions about existence of B schedule pathway. It also mentions about a branch from that way leading to the well in the compound of the Mosque situate on the southern side of plaint A schedule property. Exts. C3 to C8 show the alternate ways from the way made mention of in Ext.A1, which provides access to the plaintiff to the outside world. It can be seen from these reports and plans that a way starts from Mattom-Elavally road on the western side, runs through the property of the first defendant on the northern side, goes towards east and reaches the house of Govindan, who is none other than the brother of the plaintiff. The way continues through the property of Govindan and ends on the northern boundary of the plaintiff's property. That is shown as ABC. It has 4 feet S.A.931/2000. 10 width and 51 feet length. The commission report shows that there is an opening on the northern boundary of the plaintiff's property where the way terminates. It is true that the commission report has stated that there is no way in continuation thereof. Exts.C3 and C4 also indicate that the said way leads to the property of Madhavan, yet another brother of the plaintiff, who got the properties under Ext.B1. It proceeds further and reaches the property of Pandiyarth Mohanan. 14. In Exts. C5 and C6 survey plans, alternate way as shown by the defendant is shown in green colour. It is mentioned that the said way starts from the public road on the western side and reaches the property of the plaintiff. 15. It has also come out in evidence that the property of the defendant is located in 186/7 and there also along its southern boundary a beaten track is seen on the road on the west and ends on the plaintiff's property. Further there are steps seems to enter plaint A schedule property from plaint B schedule property. S.A.931/2000. 11 16. Exts. C7 and C8 do not differ much from Exts.C5 and C6. The other way available to the plaintiff is shown in blue colour. There is nothing in the evidence to show that any hindrance has been caused to the use of the said way by the plaintiff. It is also interesting to note that in Exts.C7 and C8 a portion of the defendant's property is shown in the actual possession of the plaintiff. 17. It is important to notice that Ext.B1 was deliberately withheld by the plaintiff. The case now is that the way made mention of in the said document does not lead to the road on the west, but it is only an internal arrangement by the sharers under Ext.B1 to go to each other's property. If that is the case of the plaintiff, he ought to have got it noted by the commissioner, who went to the site several occasions. There was no attempt from his side to have the way made mention of in Ext.B1 located . 18. There is nothing to indicate that the predecessor in interest of P.W.1, who is the plaintiff, had ever used B schedule pathway. It is true that in the plaint it S.A.931/2000. 12 has been stated that the plaintiff and his predecessors in interest have been staying in plaint A schedule property. But that does not lead to the conclusion that they have been using the B schedule way. It is significant to notice that no evidence was adduced by the plaintiff in support of his claim. In fact on going through the evidence of P.W.1 it can be seen that apart from B schedule now claimed by him, he has got two other ways to his property. But interestingly enough what he says is that he is not interested in using those pathways. He insists on the use of B schedule pathway. 19. In order to attract easement by necessity severance of tenement should be specifically pleaded and proved. There is no such pleading or proof in the case on hand. Ext.B1 is of the year 1979. It is by virtue of that document that the plaintiff comes into possession of plaint A schedule property exclusively. As already noticed, there is nothing to show that the other way shown in Exts.C3 to C8 is S.A.931/2000. 13 not the way made mention of in Ext.B1 for the use of sharers including the plaintiff. 20. It is true that in his evidence P.W.1 says that for the last 40 years he has been using the B schedule way. But nowhere in his chief examination he says that there was an old house in plaint A schedule property. Admittedly the present plea has been developed later. He has no case in his evidence that the members of his family prior to 1979 had used plaint B schedule pathway. He confines the use of plaint B schedule pathway to himself. In the light of the specific stand taken by P.W.1, the claim now made by the learned counsel that the predecessors in interest of the plaintiff have also been using the pathway cannot be countenanced. 21. It is true that the commission reports and plans do show the existence of a way as claimed by the plaintiff through the southern portion of the first defendant's property. But merely because there is a way, it does not mean that the plaintiff is entitled to use the same. He has to S.A.931/2000. 14 establish the right to do so. He admits that there are other means of access to his property, but he says that he is not willing to use those ways. He claims right to use B schedule pathway, for which, unfortunately he has no manner of right. 22. Faced with the above situation, learned counsel for the appellant pointed out that on going through the evidence adduced by the defendants, it can be seen that a way is conceded by them. At least that way may be made available to the plaintiff. 23. First of all, it is too late in the day now for the plaintiff to contend that the way other than the way claimed by him may be provided. Moreover, the location of the other way is not definite and certain. Exts.C3 to C8 as already noticed by the plaintiff do indicate that there is means of access to the plaintiff to the outside world, which is in consonance with the way provided under Ext.B1. 24. Learned counsel for the appellant prayed for a remand for adducing further evidence and also to establish that the plaintiff has no way other than B schedule pathway. S.A.931/2000. 15 25. The suit is of the year 1989. 21 years have elapsed. The plaintiff had failed in the suit, he carried the matter in appeal and then in second appeal insisting on untenable grounds. There is no equity in his favour. It will be doing injustice to the respondents to remand the case to the trial court. As already noticed it is not as if any injustice has been done to the plaintiff. In fact he has another way. No grounds are made out to accept the contention made by the counsel for the appellant against the concurrent findings of the court below. The result is that this appeal is without any merits and it is liable to be dismissed. I do so with costs to the respondents. P. BHAVADASAN, JUDGE sb.