IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 SA.No. 329 of 2001() -------------------- AS.46/1998 of SUB COURT, PALA OS.435/1992 of MUNSIFF COURT, PALA .................... APPELLANTS/APPELLANTS/DEFENDANTS 2,3,5 AND LR'S OF 1ST DEFENDANT: -------------------------------------------------------------------------------------- 1. GOPI, S/O.ITTY, PARAMPETTU HOUSE, KUMMANNOOR KARA, KIDANGOOR VILLAGE. 2. VIJAYAN, -DO- -DO- 3. LEELAMMA, W/O.NARAYANAN, KUNNEL HOUSE, KUMMANNOOR KARA, KIDNAGOOR VILLAGE. 4. SANTHA, W/O.SANKARAN, INCHIKKALAYIL, PUNNATHURA, AYARKUNNAM VILLAGE, KOTTAYAM TALUK. 5. KALYANI, W/O.ITTY NARAYANAN, PARAMPETTU, KUMMANNOR KARA, KIDANGOOR VILLAGE. BY ADV. MR.P.C.HARIDAS MR.S.R.AJITH RESPONDENTS/RESPONDENTS/PLAINTIFF AND LR'S OF 1ST DEFENDANT: -------------------------------------------------------------------------------- 1. HARIDAS, S/O.PARAMESWARAN, NANTHIKATTU HOUSE, KUMMANNOOR KAR, KIDNAGOOR VILLAGE. 2. SUMATHY, W/O.MOHANAN, PULLATTU HOUSE, KUNDUKADU PO., VATTAPPARA, THRISSUR DIST. 3. SUJATHA, W/O.CHANDRASEKHARAN, ROSE VILLA HOUSE, CHENKULAM ANCHAL, CHITHIRAPURAM (VIA). 4. NARAYANAN, KUNNEL HOUSE, KUMMANNOOR KARA, KIDANGOOR VILLAGE. ADV. MR.V.G.ARUN FOR R1 MR.T.R.HARIKUMAR FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------ S.A.No.329 Of 2001 ---------------------- Dated this the 4th day of June, 2010. J U D G M E N T Defendants 2, 3 and 5 in O.S.No.435 of 1992 on the file of the Munsiff Court, Pala, and the legal representatives of 1st defendant are the appellants herein. The suit was filed originally for declaration of right of easement by prescription over plaint item No.2 pathway and for consequential injunction. The suit was amended and a prayer for declaration of right of easement by necessity was inserted. According to the plaintiff there is a pathway in existence from Kummannoor jeep road at about half a furlong from the Milluvathikal junction leading to the Kummannor paddy field at the west. The said pathway had been used by the plaintiff and his family for their ingress and egress succeeding his predecessors. Plaintiffs' case is that the said pathway, passes through southern most portion of the property of Paravettu Narayanan and Sankaran, then through the properties of the first defendant to the west, is the only path way that led to his properties. S.A.No.329 Of 2001 ::2:: 2. Defendants 1, 2 and 5 contested the suit. It is inter alia contended that the description of item No.2 pathway is false, artificial, unidentifiable, vague and that the plaintiff is not residing in plaint item No.1 and that he constructed a shed therein just before the filing of the suit, that too, only for the purpose of suit. According to the defendants, the western side of the plaint schedule item No.1 property is a paddy field. Ettumanoor-Pala public road is the northern boundary of the said field. The plaintiff is using the ridge of the field for ingress and egress to his property. It is also pleaded that there are stepping stones from his property to the field and from the field to the road and that the plaintiff never used any portion of the property of the defendants as a path way and that the plaintiff is not entitled to claim easement either by prescription or necessity. An ex-parte commission was taken at the instance of the plaintiff. Admittedly, the commissioner inspected the site and made observations in the absence of the defendants. The commissioner reported that there is a path way which is described in Ext.C1(a) rough sketch and that path way lead to item No.1 property. The appellants/defendants contended that S.A.No.329 Of 2001 ::3:: the plaintiff has got alternate pathway to reach item No.1 property. 3. It is an admitted case that item No.1 property and the property of the defendant originally form one tenement and there was severance of tenement. The learned counsel for the plaintiff contended that item No.2 pathway is the only way for him for ingress and egress to item No.1 property. According to the learned counsel for the defendant the pathway is through the ridge of the paddy field situated on the western side of the plaint schedule property. The contesting defendants could have applied for issuing a commission for the purpose of proving the fact that the plaintiff has got alternate access to the plaint schedule property. 4. The trial court as well as the appellate court relied on Ext.C1 report and C1(a) rough sketch and rejected the contention of the defendants that the plaintiff has got alternate pathway. On the basis of the available evidence the commissioner reported that item No.2 pathway is the only way available to the plaintiff for his ingress and egress to the plaint schedule property. The trial court on a careful scrutiny of the materials found that the S.A.No.329 Of 2001 ::4:: plaintiff has failed to prove the exact lie of item No.2 footpath. The trial court also found that as per the commissioner's rough sketch the foot path is situated in a curved manner in the first defendant's property and that the plaintiff is claiming easement of necessity over item No.2 pathway. But the commissioner's rough sketch shows that the said foot path is not passing through the item No.2 property as contended by the plaintiff. In the circumstances, the trial court found that easement by necessity as prayed for by the plaintiff for lack of specific pleadings cannot be granted. The court below granted a decree for perpetual injunction restraining the defendants from doing any kind of obstruction over item No.2 pathway as shown in Ext.C1(a) rough sketch which passes through the property of the 1st defendant. The lower appellate court confirmed the findings of the trial court. 5. Plaintiff did not file any appeal to the extent of the decree and judgment passed by the court below declining the main relief of declaration of easement by necessity. The learned counsel for the appellants placed reliance on the decisions reported in Unnikrishnan v. Ponnu Ammal (1999(1) KLT 298) and Ramanunni Vaidyar v. Govindankutty Nair (1998(2) KLT S.A.No.329 Of 2001 ::5:: 47) and submitted that “on the basis of an inchoate right or a right which has not ripened into an easement by prescription, but is merely one of user, no relief can be granted to the user of them as against the owner of that land”. The learned counsel also brought to the notice of this Court the dictum laid down in the decision reported in Unnikrishnan's case (supra) that “it would be possible to say that a suit for injunction to protect a right by prescription or to prevent interference with a right by prescription, really implies the seeking of a relief of declaration of the right as well. Thus, in every adjudication in a suit for injunction based on a claim of right by prescription, what is involved is an adjudication of the right claimed by the plaintiff and on his establishing the right, the grant or refusal or injunction on well accepted principles relating to the grant of a decree for injunction.” Learned counsel for the appellants contended that the grant of a decree for permanent prohibitory injunction is unsustainable in law in the light of the findings of the trial court that the plaintiff has failed to prove his case, easement of necessity which was confirmed by the lower appellate court. S.A.No.329 Of 2001 ::6:: 6. I have examined the contentions of both sides. Both sides failed to adduce satisfactory evidence to prove their respective contentions. The plaintiff has taken out an ex-parte commission a few days after filing the suit. The commissioner did not prepare any plan at the same time the commissioner reported that there is a pathway lying on the southern side of the property belonging to DW2 leading from the Panchayath road on the east. Commissioner reported that there are stepping stones and it further proceeds through the properties of the defendant with a curve and then proceeds to west. The appellants contended that the pathway described in the plaint and the pathway reported by the commissioner is different. The plaintiff is not entitled to the relief of injunction in case where he failed to establish that the plaint schedule item No.2 pathway is being used by them as an easement of necessity. In view of the finding of the trial court that the plaintiff failed to prove that plaint item No.2 is used by the plaintiff as an easement of necessity, grant of a decree for perpetual injunction restraining the defendants or interfering with the use of item No.2 pathway by the plaintiff is bad in law. S.A.No.329 Of 2001 ::7:: 7. Though the case was seriously contested by both sides, the appellants/defendants did not chose to take out a commission in support of their case that the plaintiff is using alternate way for ingress and egress. It is true that, it is for the plaintiff to establish easement right whether by prescription or by necessity. At the same time, when the parties adduce evidence in support of their respective contentions the contesting defendants could have brought to the notice of the court that the plaintiff is not entitled to any relief sought for in the plaint. In view of the legal position pointed out by the learned counsel for the appellants and in view of the facts and circumstances narrated above, this Court is of the view that the parties shall be given an opportunity to substantiate their respective contentions by adducing further evidence, if any, if so advised. In the circumstances, this Court is of the view that the matter can be disposed of afresh by the trial court. In the result, the appeal is partly allowed. The case is remanded to the trial court for fresh disposal, in accordance with law. The trial court shall afford opportunity to both sides to adduce further evidence. The trial court shall dispose of the S.A.No.329 Of 2001 ::8:: matter expeditiously, at any rate, within a period of six months from the date of receipt of a copy of this judgment. Parties shall appear before the court below on 30.6.2010. There will be no order as to costs. HARUN-UL-RASHID, Judge. bkn/-