IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 SA.No. 211 of 1994(A) --------------------- AS.112/1992 of PRL.S.C.,THALASSERY OS.17/1989 of MUNSIFF COURT, THALASSERY .................... APPELLANTS/RESPONDENTS/DEFENDANTS: ------------------------------------------------ 1. P.V.GOPALAN NAIR, AGED 60 YEARS, PUTHEN VEEDU, VENUS CORNER, THALASSERY. *2. YOUNGER BROTHER GOVINDAN NAIR, -DO- (DIED) LRS IMPLEADED 3. P.V.JANAKI, AGED 40 YEARS, TEACHER, AZHIKODE HIGH SCHOOL, RESIDING -DO- 4. P.V.LAKSHMIKUTTY, AGED 33 YEARS, CLERK, RESIDING AT -DO- 5. K.K.SANTHAKUMARI, ‘ANASWARA’, COURT ROAD, TELLICHERRY 6. ANUPAMA G.NAIR, ‘ANASWARA’, COURT ROAD, TELLICHERRY SUPPLEMENTAL APPELLANTS 5 AND 6 ARE IMPLEADED AS THE L.RS OF THE DECEASED 2ND APPELLANT AS PER ORDER DATED 28/1/1998 ON CMP 70/97 BY ADV. SRI.T.A.RAMADASAN SRI.A.K.ALEX RESPONDENTS/APPELLANT/PLAINTIFF: ------------------------------------------- 1. P.VIJAYALAKSHMI, D/O.CHERIYA CHANDU, AGED 52 YEARS, MEDICAL PRACTITIONER, RESIDING AT VENUS CORNER, THALASSERY 2. BROTHER P.MOHANAN, AGED 44 YEARS, MERCHANT, RESIDING -DO- 3. BROTHER P.VIJAYAN, AGED 40, -DO- 4. SISTER P.GEETHALAKSHMI, AGED 36, RESIDING -DO- R4 BY ADV. SMT.VIDHYA. A.C THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.345/94 & 904/99 IN SA 211/94 DISMISSED 1/1/2008 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A .NO. 211 OF 1994 ------------------------------------------ Dated 1st January 2008 J U D G M E N T Defendants in O.S.17/1989 on the file of Munsiff court, Thalassery are the appellants. Respondents are legal heirs of plaintiffs who were impleaded as additional plaintiffs in the suit on the death of original plaintiff. Suit was instituted seeking a decree for permanent prohibitory injunction contending that plaint schedule property belongs to and is in the exclusive possession and enjoyment of deceased plaintiff under Ext.A1 sale deed dated 1/11/1968. He constructed two houses therein. One occupied by a tenant by name Nanu and the other occupied by his son-in-law Dr.K.Raveendranath. The property to its north belongs to first appellant where he is residing. Second appellant constructed a new house in that property. It was contended that appellants have no manner of right over plaint schedule property and there was a narrow lane on the south of the plaint schedule property. Deceased SA 211/94 2 plaintiff had put up stone steps connecting that lane and plaint schedule property. Subsequently five years prior to the institution of the suit, the southern lane was broadened into a Municipal road and thereafter to facilitate entry of car of his son-in-law to the house in the plaint schedule property he removed the stone steps and formed a road from the southern road and first respondent demanded a right to use the road and when he did not oblige appellants asserted that they would use the courtyard as a way. Contending that they have no such right, decree for permanent prohibitory injunction was sought for. Appellants in their written statement contended that plaint schedule property and the property of respondents originally belonged to Mundayodan tarwad and in 1928 lease was taken by Chellath Devaki from the tarwad and in the partition a portion was allotted to Ammalu Amma, mother of appellants and on her death her right devolved on the children including appellants and there was a house where Ammalu Amma was residing even in 1930 and the way to that house was from the southern lane and stone steps from the southern lane was put up by appellants and not by original plaintiff and it was removed with the permission of the appellants after SA 211/94 3 broadening the lane into a road and residents of the house belonging to the appellants have been using that foot path for ingress and egress uninterruptedly and continuously as of right for the last more than 50 years and therefore they have prescribed a right of easement over the disputed way and respondents are not entitled to decree sought for. 2. Learned Munsiff on the evidence of Pws.1 to 4, Dws.1 to 3, Exts.A1 and A2, B1 to B5 and C1 and C2 dismissed suit holding that appellants have a right of way through the disputed road and therefore respondents are not entitled to the decree sought for. Respondents challenged the judgment before Sub court, Thalassery in A.S.112/1992. Learned Sub Judge on re-appreciation of evidence found that ingredients constituting a right of easement by prescription as provided under Section 15 of Easement Act was not pleaded in the written statement and appellants are not entitled to claim a right of easement by prescription and it was found that respondents are entitled to the decree for permanent prohibitory injunction sought for. It is challenged in the second appeal. Second appeal was admitted formulating following substantial questions of law. SA 211/94 4 1) Whether first appellate court was correct in its conclusion that plea of right of easement by prescription does not fall for consideration for want of sufficient pleadings and whether pleadings in the written statement is sufficient. 2) Whether first appellate court was justified in finding that appellants have no right of way through the plaint schedule property. 3) Whether first appellate court was wrongly persuaded to reject the defence raised by appellants on the ground that there existed an alternative way on the north. 3. Learned counsel appearing for appellants and respondents were heard. 4. Right obtained by the deceased plaintiff over plaint schedule property under Ext.A1 assignment deed was not disputed. So also possession of plaintiff asserted over that property was not disputed. It is also admitted case that after Ext.A1, deceased plaintiff constructed two houses in the plaint schedule property, which were occupied by a tenant and son-in-law of the plaintiff. It is also admitted case that southern lane of the plaint schedule property was originally a narrow one and it was SA 211/94 5 broadened into a Municipal road only in 1988. Fact that originally there was a stone step to enter to plaint schedule property from southern lane was also admitted. What was contended by plaintiff was that the stone steps were constructed by him. According to appellants they were constructed by appellants. But case of plaintiff that stone steps were removed after broadening of the southern lane into a road, by plaintiffs was also admitted. What was contended by appellants was that it was done by son- in-law of plaintiff as permitted by them. Whatever it be, fact that road from the southern Municipal road leading to the house into plaint schedule property was constructed by plaintiff or his son-in-law within a period of three years prior to the institution of the suit was also admitted. What was contended by plaintiff was that appellants have no right of way over the plaint schedule property or the road so formed. It was contended by appellants that the only access to the residential house in their property, which lies to the north of plaint schedule property, was from the southern lane and they have prescribed a right over that way. Trial court accepted the case of appellants and held that they have a right of easement by prescription. First appellate court reversed that finding SA 211/94 6 holding that ingredients constituting a right of easement by prescription as provided under Section 15 of Indian Easements Act were not pleaded. Arguments of learned counsel is that first appellate court should not have rejected the claim on the technical ground when parties recognised the right and lead evidence. It was argued that appellants have pleaded that they and residents of the houses in the property have been using that way for the last 60 years as of right uninterruptedly and therefore there is necessary pleading. First appellate court on analysing Section 15 of the Act found that there is no pleading that disputed way was being used openly, peaceably and as an easement and therefore held that necessary ingredients are not pleaded. Argument of learned counsel is that the said finding is unsustainable. Question is whether there is sufficient pleading constituting a plea of right of easement by prescription. 5. Necessary pleadings in paragraph 5 of written statement reads, “Since for the last more than 60 years, the residents of the house in the property belonging to the defendants were using the same footpath for their ingress and egress to the house and compound. They are enjoying SA 211/94 7 the same uninterruptedly and continuously and as of right, since last more than 50 years. So they have prescribed the right of easement with respect to the way now in dispute.” As rightly found by first appellate court, there is no plea that appellants have been using that disputed way openly and peaceably and that too as an easement. It is important to note that no where in the written statement appellants recognised the right and title of plaintiff to the disputed portion of the property. A reading of paragraph 3 of the written statement shows that what was contended by appellants was that the way from the house was to the southern lane. Averments in paragraph 5 of the written statement also shows that what was contended by appellants was that the footpath leading from the southern lane is part of the property obtained by Ammalu Amma, which was being used for the last 60 years as of right. There was no case by the appellants that appellants or Ammalu Amma have been using the plaint schedule property as part of property of respondents and they have been using the property as of right, as an easement. On the other hand, reading of written statement shows that they have been using it as part of their property and that too SA 211/94 8 uninterruptedly as of right. When the pleading is so appreciated, finding of first appellate court that there is no pleading that appellants or their predecessors have been using the disputed way as of right, as an easement, openly and peaceably and therefore there is no proper pleadings constituting a right of easement by prescription as provided under Section 15 of Easement Act is perfectly correct. In the absence of such pleadings appellants are not entitled to claim a right of way through plaint schedule property. In such circumstances, first appellate court rightly granted decree for injunction. Appeal therefore fails and is dismissed. While dismissing the appeal it is made clear that as the right of way claimed was rejected on the ground that there is no sufficient pleadings constituting a claim for easement by prescription under Section 15 of Easement Act, the dismissal will not disentitle appellants from instituting a suit for declaration of right of easement by prescription, if they are otherwise entitled to. Appeal is dismissed. No cost. M.SASIDHARAN NAMBIAR, JUDGE. uj. SA 211/94 9 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT S.A.NO.211 OF 1994 1st January 2008 ============================