“C.R.” IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 RSA.NO. 188 OF 2009() -------------------------------- AS.51/2004 OF ADDL.DISTRICT COURT,KOTTAYAM OS.105/2001 OF PRL.M.C., KOTTAYAM .................... APPELLANT – APPELLANT – FIRST DEFENDANT: ----------------------------------------------------------------- PANKAJAKSHI AMMA, AGED 62, W/O.BALAKRISHNAN NAIR, MATAKATTUKIZHAKETHIL, THIRUVANCHOOR, MANARCADU VILLAGE, KOTTAYAM. BY ADV. SRI.R.SUDHIR RESPONDENT(S): RESPONDENTS/PLAINTIFFS: ---------------------------------------------------------------- 1. GOURIKUTTY AMMA, AGED 60, W/O.BALAKRISHNAN NAIR, MATAKATTUPADINJARETHIL, THIRUVANCHOOR, MANARCADU VILLAGE, KOTTAYAM. 2. THE KOTTAYAM CO-OPERATIVE SOCIETY, REPRESENTED BY ITS PRESIDENT, MATHEW KORAH, AGED ABOUT 52, PROFESSOR, DEPARTMENT OF CHEMISTRY, BASELIOUS COLLEGE, KOTTAYAM. ADV. SRI.ABRAHAM GEORGE JACOB FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “C.R.” THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO. 188 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 30th day of November, 2009 J U D G M E N T --------------------- Is it necessary that the use of a pathway to transform into a right of easement by prescription under Section 15 of the Indian Easements Act (for short, “the Act”) the dominant owner has to prove that such user was with notice to the servient owner? This is one of the questions urged by the appellant as a substantial question of law. 2. Respondent No.1 owns item No.1 of the plaint schedule as per settlement deed No.1368 of 1967. Item No.2 property is situated on the north of item No.1 and belong to the appellant. Item No.3 property belongs to respondent No.2 and is situated on the east of item No.2. Item No.4 is the disputed pathway. According to respondent No.1, that pathway starts from the water supply road on the east, passes through item Nos.2 and 3 and reaches item No.1. Along item No.3 belonging to respondent No.3, that pathway has a width of eight feet. Along item No.2 belonging to the appellant, its width is three feet. Respondent No.1 claimed that item No.4 is the only means of access from the road on the east to item No.1 belonging R.S.A. NO.188 of 2009 -: 2 :- to her. She claimed user of item No.4 by herself and predecessors-in- interest for over 50 years peaceably, openly, as an easement, as of right and without interruption. Alleging attempt on the part of appellant and respondent No.2, servient owners to interfere with enjoyment of the right, respondent No.1 filed the suit seeking declaration of her right and injunction. Appellant denied existence of the pathway and its user by respondent No.1. She contended that respondent No.1 has other means of access to item No.1. She claimed that herself and family were staying in North India for long in connection with employment of her husband and that if at all respondent No.1 used any portion of item No.2 as a way at any time when they were away from the locality, that would not amount to user of the pathway as of right and adverse to the appellant as she had no notice of such user. Respondent No.2 also resisted the suit. Learned Munsiff accepted the case of respondent No.1 and granted relief. First appellate court confirmed the judgment and decree. Hence the Second Appeal. Learned counsel for appellant contends that alleged user of the pathway without notice to and without the knowledge of appellant, cannot be said to be adverse to the appellant and hence the user would not transform into a prescriptive right. It is also contended that there is no reliable evidence regarding the width of the R.S.A. NO.188 of 2009 -: 3 :- pathway and that trial court granted relief without considering the evidence. Learned counsel has placed reliance on the decision in Narendra Gopal Vidyarthi v. Rajat Vidyarthi ([2009] 3 SCC 287) to contend that when the finding of fact is without any evidence or is against evidence it involved a substantial question of law. According to the learned counsel for respondent No.1, no substantial question of law is involved. 3. Exhibits C1 and C1(a) are the report and sketch prepared by P.W.2, the Advocate Commissioner. As per that evidence the pathway has a width of eight feet along item No.3. It came out in the evidence of respondent No.1 as P.W.1 that respondent No.2 acquired title over item No.3 about fifteen years back and only thereafter the pathway passing along item No.3 acquired width of eight feet. Before that, it was only a footpath along item No.3. Learned counsel for appellant contends that notwithstanding the above evidence regarding width of the way along item No.3, trial court accepted case of respondent No.1 regarding user of the pathway having width of eight feet along item No.3 for more than the statutory period and granted relief. But in this appeal it is not necessary to go into the question whether respondent No.1 acquired right of easement by prescription over the pathway having width of eight feet passing through item No.3 R.S.A. NO.188 of 2009 -: 4 :- belonging to respondent No.3 since the latter has not challenged judgment and decree of the trail court and so far as respondent No.3 is concerned, that judgment and decree became final. At the same time it is interesting to note that in respect of the same way having width of eight feet passing through item No.3, appellant had filed a suit claiming prescriptive easement, it is a different matter that she was not successful in that attempt. 4. So far as existence of pathway along item No.2 belonging to the appellant is concerned, learned counsel contends that though respondent No.1 claimed its width as three feet, Ext.C1 shows the width as only one and half a feet but in spite of that, trial court granted relief in respect of three feet. Advocate Commissioner in paragraph 1 of Ext.C1 has reported width of the pathway passing through item No.2 as three feet. In paragraph 2 of Ext.C1 it is reported about a thondu like portion adjoining the pathway having width of one and a half feet. Commissioner gave evidence in that way as P.W.2. But it is not disputed that including the thondu width of the pathway along item No.2 is three feet as stated in paragraph 1 of Ext.C1. Learned counsel for respondent No.1 would contend that this aspect was not seriously canvassed in any other courts below. According to the learned counsel width of the pathway along item No.2 is three feet, it is only that during rainy season respondent No.1 and others used to R.S.A. NO.188 of 2009 -: 5 :- walk through the ridge like portion as there was flow of rain water through the thondu like portion. Courts below from the evidence found width of the pathway passing through item No.2 as three feet. It is difficult to think a pathway having width of one and a half feet was being used. Finding of the courts below regarding width of pathway passing through item No.2 is one of fact which in my view does not involve any substantial question of law. As regards the alleged user of pathway for more than the statutory period evidence is given by respondent No.1 as P.W.1. P.Ws.3 and 4 have given supporting evidence. Courts below have accepted that evidence. That also involves no substantial question of law. 5. Was user of the pathway by respondent No.1 adverse to the appellant? According to the appellant herself and family were staying in North India for quiet some time in connection with employment of her husband, she had no information about respondent No.1 using the pathway and hence the user cannot be said to be adverse to or acquiesced in by her so as to prescribe a right. 6. To give title by prescription use and enjoyment of the right claimed must be adverse to the right of servient owner and acquiesced in by him. To be adverse the use must be under a claim of right inconsistent with or contrary to the interest of the servient R.S.A. NO.188 of 2009 -: 6 :- owner. An adverse user is under a claim of right which is known to the servient owner and acquiesced in by him. Knowledge of the servient owner may be actual or implied unless the Statute itself requires express notice of such use. The law in England in this regard is different. Diment v. N.H. Foot Ltd. ([1974) 1 WLR 1427) was a case where plaintiff, for reason of her absence from the locality for most of the time had no knowledge about the user by the defendant. It was held that no easement could be acquired in the circumstance. In Spencer v. Jennings (115 A 270) decision was that the claim of right must in some way be communicated or asserted in such a manner that servient owner may know of it. In the absence of express notice or actual knowledge on the part of servient owner, user by the claimant must be so visible, open and notorious that notice or knowledge will be presumed. In Arszan v. Rakhal Chunder Roy Chowdry (1884 [10] ILR [Calcutta] 214) suit was to establish a right of easement by prescription. Suit was dismissed holding that right of way could not be enjoyed “as of right” without knowledge of servient owner and that servient owner had no knowledge of user of the way by the plaintiff. It was held that for the purpose of acquiring a right of way or other easement under Section 26 of the Indian Limitation Act, 1877 (corresponding to Section 25 of R.S.A. NO.188 of 2009 -: 7 :- Act 1963) it is not necessary that enjoyment of the easement should be known to the servient owner. The court held that the law in India in that respect is different from acquisition of right of easement under the English Prescription Act. 7. To prescribe a right under Sec.15 of the Act the user must be 'open'. If the user is secret or surreptitious the fiction of supposed grant or acquiescence is untenable. Instances of such user are where the right is exercised by stealth or in the night – talis usus non valebit, cum sit clandestinus, et idem erit si nocturnus (See Gale on Easements, 15th Edn., page 192). If enjoyment of right by the dominant owner is fraudulent and surreptitious so that servient owner could not know about enjoyment of the right and hence could not acquiesce or prevent it, it cannot support a claim of easement. Fry, J. held so in Dalton v. Angus [6 App. Cases 740 (801). The same view is taken in Union Lighterage Co. v. London Graving Dock Co. ([1902] 2 Ch. Div. 557) and Partridge v. Scott (3 MLW 220). In Liverpool Corporation v. H.Goghill & Son, Ltd. ([1918] 1 Ch. D. 307) it is held that if enjoyment of the alleged easement has been secret and unknown and unsuspected by the plaintiffs or their predecessors, it was not of such a character as would establish a prescriptive right. For, nobody can acquiesce in R.S.A. NO.188 of 2009 -: 8 :- something which is not known to him. Hence for acquiring a right of easement by prescription the enjoyment should be nec clam, i.e., enjoyment must be 'open'. If enjoyment of the right is open and not intentionally secret, mere fact that servient owner was ignorant of the enjoyment will not prevent acquisition of easement. If the circumstances are such that a diligent servient owner could know about enjoyment of the right and there is nothing to show that there was any attempt on the part of the dominant owner to conceal such enjoyment the law will presume knowledge and acquiescence on the part of servient owner. As the law in India is, actual knowledge on the part of servient owner is not necessary for an enjoyment to be open as required by Sec.15 of the Act. What is required is that the enjoyment of the right is open, i.e, nec clam. It is sufficient that the user is open, not intentionally secret or surreptitious. In such situation law attributes knowledge to the servient owner and the servient owner is expected to either stop such user or acquiesce in it. Law does not require that notice of user of the pathway should be given to the servient owner. There is no case or evidence to show that user of the pathway by respondent No.1 was fraudulent, intentionally secret or surreptitious. Appellant admits that she is in possession of item No.2. She must therefore be presumed to have been aware of user of the pathway along her property. It is relevant to note that alleging user of R.S.A. NO.188 of 2009 -: 9 :- the pathway along item No.3 during the very same period appellant claimed easement by prescription against respondent No.2. Hence she should have been aware of the user of the pathway along item No.2. It is idle, in the circumstances for appellant to contend that as she was elsewhere she did not get information about user of the pathway by respondent No.1. Exhibit A1 shows that respondent No.1 acquired item No.1 in the year 1967. There is evidence of user of the pathway by her for more than the statutory period. There is nothing to show that appellant objected to the user of the pathway at any point of time. Long user of the pathway, in the absence of evidence that it is permissive raises a presumption that the user was as of right. Position of law in this regard is settled statutorily and by judicial pronouncements and hence no substantial question of law is involved. The Second Appeal is dismissed in limine. Interlocutory Application No.357 of 2009 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.188 of 2009 -: 10 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO.188 OF 2009 =================== J U D G M E N T 30TH NOVEMBER, 2009