IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 13TH JULY 2011 / 22ND ASHADHA 1933 SA.No. 211 of 2000(A) --------------------- AS.67/1996 of SUB COURT, NEDUMANGAD OS.475/1993 of PRL.MUNSIFF COURT,NEDUMANGAD .................... APPELLANT(S)/RESPONDETNS 1&3 /DEFENDANTS 1 AND 3: ------------------------------------------------------------------------------------ 1.KASSIM BAVA, JASMIN MANZIL, NEAR BOYS HIGH SCHOOL MANICKAL VILLAGE, NEDUMANGAD TALUK THIRUVANANTHAPURAM DISTRICT 2. A ABDUL HAKKIM, KAMAL MANDIRAM ALIAS MELEVILA VEEDU, MAZHUVADI MURI, THEKKADA VILLAGE NEDUMANGAD TALUK,THIRUVANANTHAPURAM BY ADV. SRI.GOPAKUMAR R.THALIYAL RESPONDENT(S)/APPELLANTS/PLAINTIFF & 2ND RESPONDENT & 2ND DEFENDANT: ------------------------------------------------------------------------------------------------------------------------ 1. SALMA BEEVI, D/O.AYISHA BEEVI, PUTHEN VEEDU KANYAKULANGARA, THOZHUTHUMKARA MURI MANICKAL VILLAGE, NEDUMANGAD TALUK, THIRUVANANTHAPURAM DT 2. A.HASHIM, KAMAL MANDIRAN, NEAR KANYAKULANGARA MOSQUE THIRUVANANTHAPURAM DIST. ADV. SRI.K.B.PRADEEP FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13.07.2011, ALONG WITH SA NO. 214 OF 2000 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA 214/00 CMP NOS.580/00 & 581/00 IN SA 211 OF 2000 DISMISSED 13.07.2011 SD/-P.BHAVADASAN, JUDGE TRUE COPY PA TO JUDGE P.BHAVADASAN, J. ------------------------------------------ SA Nos.211 & 214 of 2000-A ------------------------------------------ Dated this the 14th day of July 2011 Judgment Two suits, namely, OS No.517/93 and 475/93 were jointly tried and disposed of by the Principal Munsiff's Court, Nedumangad. The trial Court dismissed both the suits. The plaintiff in OS No.517/93 carried the matter in appeal as AS No.388/96 before the Sub Court, Nedumangad and the plaintiff in OS No.475/93 preferred AS No.67/96 before the same Court. The lower appellate Court heard the appeals together and by a common judgment dated 24.07.1999, allowed AS No.67/96 and dismissed AS No.388/96. The result was that a decree was granted in OS No.517/93 and OS No.475/93 was decreed. Aggrieved by the said judgment, defendants 1 to 3 in OS No.475/93 preferred SA No.211/00 and the plaintiff in OS No.517/93 has preferred SA No.214/00. SA 211 & 214/00-A 2 2. Shorn off unnecessary details, the facts which are essential for the disposal of these appeals are as follows : 3. Since the trial Court has treated OS No.517/93 as the leading case, the parties and facts are hereinafter referred to as they are available before the trial court in the said suit. 4. The plaintiff claimed right of easement to use the plaint B schedule pathway to gain access to plaint A schedule property, which, according to the plaintiff, was owned and possessed by her. The plaint B schedule pathway was alleged to be running through the property of the defendants. According to the plaintiff, the pathway started from a public road on the southern side and ran through the properties of the defendants and ended in the property of the plaintiff. The plaintiff would say that she has been using the pathway for a long time and that a ramp has been constructed at the mouth of the pathway which indicates that it is for common use. The complaint was that SA 211 & 214/00-A 3 the defendants are trying to obstruct the use of the pathway and therefore, the suit was laid. 5. The defendants resisted the suit by pointing out that the claim made by the plaintiff is false. It is pointed out that the plaintiff has got other means of access to her property and the suit was laid because the defendant did not permit the sons of the plaintiff to construct a pathway through their property. Several other contentions were also taken in the written statement of the defendants, which are not very relevant for the present purpose. Suffice is to say that they pointed out that there was no pathway as alleged by the plaintiff and that she has no manner of right to use any portion of their property as a way. On the above grounds, they prayed for dismissal of the suit. 6. The first defendant in OS No.517/93 laid OS No.475/93 which was a suit for injunction restraining the defendants from trespassing into the property or constructing any pathway through the plaint schedule properties. The allegation was that the defendants in the SA 211 & 214/00-A 4 suit are trying to create a pathway through the property of the plaintiffs. The defendants denied the allegation. 7. Necessary issues were raised in the suits and OS No.517/93 was treated as the leading case in which evidence was adduced which consists of the testimony of PWs 1 to 4 and documents marked as Exts.A1 to A4. The defendants had DWs 1 to 4 examined and Exts.B1 to B8(a) marked. Exts.C1 to C3 commissioner's report and plan were also marked. 8. The trial Court found existence of C schedule pathway as alleged in the plaint in OS No.517/93, but found that the plaintiff had miserably failed to establish any manner of right to use the pathway. Accordingly, the suit was dismissed. 9. As far as the other suit was concerned, i.e., OS No.475/93, it was held by the trial Court that the plaintiff had miserably failed to establish his case and therefore, that suit was also dismissed. SA 211 & 214/00-A 5 10. The respective plaintiffs in the suits carried the matter in appeals as already stated. The lower appellate Court, after an evaluation of the evidence available in the cases, found that the findings of the trial Court in the judgment in OS No.517/93 do not call for any interference. As regards OS No.475/93 was concerned, the very claim of the defendants that they have right to use a portion of the property belonging to the plaintiff in the said suit as a way is sufficient to provide a cause of action to the plaintiff and accordingly, reversed the decree of the trial Court and granted a decree in favour of the plaintiff in the said suit. Hence the second appeals. 11. Notice is seen issued on the following questions of law raised in the second appeals : SA No.211/00 1. Without establishing a cause of action by the plaintiff, whether the prayer for mandatory injunction sought for in the suit can be allowed ? 2. Whether the contention of the defendants claiming SA 211 & 214/00-A 6 easement right through the plaintiff's property establishes a cause of action to file a suit for injunction against the defendants ? 3. Without proving any act of violence or attempt to trespass committed by the defendants whether the injunction sought for in the suit by the plaintiff against the defendants can be granted ? SA No.214/00 1. The pleadings in the plaint and the evidence adduced by the plaintiff would go to show that the plaintiff is claiming easement by prescription. The report of the commission would also reveal that C schedule pathway is now in existence and the age of the pathway is more than 25 years. In such a circumstance, whether courts below can be justified in dismissing the suit on the ground of lack of pleading regarding the nature of easement claimed. 2. Though the plaintiff has established all the ingredients of an easement by prescription in the suit, whether the prayer for declaration of easement right in the suit can be declined in the absence of the word 'prescription' in the plaint. 3. The commissioner appointed in the suit reported that a portion of the pathway is seen destroyed recently and SA 211 & 214/00-A 7 converted into a chal. On this finding whether the plaintiff is entitled to get injunction as prayed for in the suit. 12. The learned counsel for the appellant contended that the Courts below have erred in law in decreeing OS No.517/93. Evidence was clear to the effect that there does exist a pathway shown in the plaint in OS No.517/93/. There were clinching items of evidence to show that the pathway has been used for a long time by the plaintiffs and others. According to the learned counsel, both the courts were too technical in their approach and laid undue emphasis on the pleadings without understanding the substance of the claim put forward by the plaintiff. It is also contended that the courts below omitted to note that C schedule pathway is the only means of access to the plaint schedule property. The commissioner's report has not been properly appreciated and that has resulted in miscarriage of justice. It is therefore, contended that the decree of the lower courts are unsustainable in law. SA 211 & 214/00-A 8 13. On the other hand, the learned counsel for the respondents in these appeals pointed out that the courts below were not justified in declining to accept the plea of easement put forward by the plaintiff in OS No.517/93. The learned counsel referred to the plaint in OS No.517/93 and pointed out that it is not discernible from the plaint as to what exactly is the nature of right pleaded by the plaintiff. It would appear that there is a plea of easement by grant as well as elements of easement by prescription. The learned counsel then referred to the evidence of PW1 the plaintiff in OS No.517/93 and pointed out that all that the plaintiff as PW1 says is that there is a way and she has no other way to her property thereby indicating that what she was then claiming was easement by necessity which had no foundation in the pleadings in the plaint. The learned counsel pointed out that the nature of claim put forward by the plaintiff to use the pathway is not discernible from the plaint and in case easement right is claimed, it is well settled that the pleading should be SA 211 & 214/00-A 9 precise and definite. According to the learned counsel, both the courts below have properly appreciated the evidence on record and come to the right conclusion. It is also pointed out that the findings are based on appreciation of evidence in the case and are pure questions of fact and no substantial questions of law arise for consideration in this second appeal. 14. After having heard the learned counsel on both sides and on an appreciation of the evidence on record, this Court feels that the contentions taken by the learned counsel for the respondents have much substance. On going through the plaint in OS No.517/93, at one place, it is stated that at the time of partition deed evidenced by Exts.tA1, A11 and A13, a way was provided, thereby indicating that the claim was easement by grant. In the latter portion of the plaint, it is stated that the way has been used for a long time without any obstruction from anybody thereby indicating that the claim is one of prescriptive right of easement. In the relief portion of the plaint, all that is SA 211 & 214/00-A 10 sought for is for a declaration regarding the easement right of the plaintiff to use the way. 15. The defendants had contended that there was no such way and the plaintiff had no manner of right to use any portion of their property as a way. The commissioner's report shows that there does exist a pathway shown as C schedule in OS No.517/93. The mere existence of a way is not sufficient as far as the claim of easement is concerned. The plaintiff will have to establish as to what is the nature of right claimed by him to use the way. The mere fact that he could have used or is using the way, by itself is not sufficient to gain a right to use the way. As already noticed, the plaint is not definite as regards the exact nature of the right pleaded. In other words, the claim made is neither precise nor definite. It is vague. 16. At the time of evidence, PW1 does not speak of either about grant or prescription, but states that she has no other access to her property thereby indicating that the claim put forward by the witness was one by necessity. SA 211 & 214/00-A 11 17. The claim as made at the time of evidence has no foundation to the pleadings and the pleadings are not supported by evidence also. 18. A reading of the judgment of the lower appellate Court shows that at the time of hearing of the appeal, the plaintiff in OS No.517/93 confined his claim to one of easement by prescription. 19. Section 15 of the Easement Act deals with acquisition by prescription, which reads as follows : “15. Acquisition by prescription – Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as a n easement, without interruption and for twenty years, and where support from one person's land or things affixed thereto, has been peaceably received by another person's land subject to artificial pressure is or by things affixed thereto, as an easement without interruption and for SA 211 & 214/00-A 12 twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption and or twenty years, the right to such access and use of light or air support or other easement shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.” In order to succeed in a claim for easement by prescription, the claimant will have to show that he has open, continuous, hostile,uninterrupted use of the pathway for a period of 20 years. 20. As already noticed, first of all, there should have pleadings to that effect in the plaint. In the case on hand, as already noticed, there is no precise pleading in SA 211 & 214/00-A 13 that regard at all. To crown it, at the time of evidence, PW1 does not speak about either of the right of easement by grant or prescription. 21. The learned counsel for the appellant pointed out that except C schedule pathway, the plaintiff has no other means of access to her property. The courts below have found that the plaintiff has other means of access to her property. Whatever that be, there is no precise or definite pleading of any particular nature of easement and the pleadings are, in fact, general and vague. The evidence does not support the pleadings. It was the above fact which had weighed with the courts below. The appellant was unable to show any legal or factual error in the findings of the courts below with regard to the claim of easement in respect of C schedule pathway shown as plaint C schedule in OS No.517/93. The said judgment and decree in OS No.517/93 does not call for any interference. SA 211 & 214/00-A 14 22. As regards OS No.475/93 is concerned, it is true that the trial court had dismissed the suit, finding that there was no cause of action, but as rightly noticed by the lower appellate Court, the fact that the defendants in the said suit were claiming right of way through the property of the plaintiffs in the said suit is sufficient to cause reasonable apprehension in the mind of the plaintiff and that justifies the suit. In other words, the lower appellate Court found that the very claim made by the learned counsel provides cause of action for the plaintiffs. There is no legal or factual error committed by the lower appellate Court in coming to its conclusion. The judgment and decree in OS No475/93 is also without any merits. No substantial questions of law arise for consideration in this appeal and it is accordingly dismissed. No costs. P.Bhavadasan, Judge sta SA 211 & 214/00-A 15 SA 211 & 214/00-A 16