IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 RSA.No. 22 of 2010() ----------------------------- AS.4/2003 of PRL.SUB COURT,TRIVANDRUM OS.1378/1997 of ADDL. MUNSIFF COURT (RENT CONTROLLER), TRIVANDRUM .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------------------- JAYAMOHAN, SON OF RAMAN PILLAI, AGED 53, PRATHIBHA NIVAS, ONIYODE, KARIPPUR, MALAYINKEEZH, TRIVANDRUM. BY ADV. MR.J.S.AJITHKUMAR RESPONDENT/RESPONDENT/PLAINTIFF ---------------------------------------------------------- R. SIVAKUMARI, D/O. RAJAMMA, R.S. NIVAS, PAVAKODE, EZHAKODE, MALAYINKEEZHU, TRIVANDRUM. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/01/2010, ALONG WITH R.S.A. NO. 24/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.Nos.22 & 24 of 2010 --------------------------------------- Dated this 12th day of January, 2010 JUDGMENT These second appeals arise from the common judgment and decree of learned Sub Judge, Thiruvananthapuram in A.S.Nos.4 of 2003 and 2 of 2003, respectively which arise from O.S.Nos.1378 of 1997 and 1338 of 1997 of the court of learned Additional Munsiff, Thiruvananthapuram. Parties are referred to as plaintiff and defendants as in O.S.No.1338 of 1997. That is a suit originally filed for injunction alone later amended as one for declaration and for mandatory injunction. The plaint A schedule property therein is 20 cents over which the plaintiff claimed title and possession as per sale deed No.1738 of 1981. The plaint B schedule is a pathway described as having width of 2 feet originating from Damodaran Nagar road on the north and reaching plaint A schedule. Plaintiff alleged that B schedule runs along boundary of property of defendants situated on the west of B schedule and claimed right of easement by necessity and prescription. Plaintiff alleged obstruction at the hand of defendants and sought relief as above stated. Defendants except defendant No.3 resisted the suit contending that there is no such way as described in plaint B schedule and that on 09-06-1997 plaintiff tried to create a way by destroying the boundary. Additional defendant No.5 in O.S.No.1338 of 1997 filed O.S.No.1378 of 1997 against plaintiff in O.S.No.1338 of R.S.A.Nos.22 and 24 of 2010 2 1997. That is a suit for injunction against plaintiff in O.S.No.1338 of 1997 and others trespassing into the property mentioned therein. It was claimed that the suit property belonged to and is in possession of additional defendant No.5 (plaintiff in O.S.No.1338 of 1997) as per partition deed No.42 of 1995 with well defined boundaries on all sides. The trial court initially dismissed O.S.No.1338 of 1997 and decreed O.S.No.1378 of 1997 holding that plea of easement or existence of the disputed pathway are not established. Plaintiff in O.S.No.1338 of 1997 challenged judgment and decree before the first appellate court. The first appellate court ordered remand of the cases to the trial court. The remand was challenged by the contesting defendants in O.S.No.1338 of 1997 and plaintiff in O.S.No.1378 of 1997 in this court in F.A.O.Nos.291 of 2007 and 292 of 2007. This court directed the first appellate court to consider the appeals afresh and decide the contentious issues. After remand the first appellate court heard both sides and passed the impugned common judgment and decree dismissing O.S.No.1338 of 1997 and allowing O.S.No.1378 of 1997. That is under challenge in the second appeal raising by way of substantial question of law whether courts below are justified in granting injunction against plaintiff in O.S.No.1338 of 1997 and declining to grant relief in respect of plaint B schedule property. It is contended by learned counsel that there is sufficient evidence to show R.S.A.Nos.22 and 24 of 2010 3 the existence of the disputed pathway. Learned counsel also requested that he may be given an opportunity to amend the plaint to incorporate appropriate plea regarding easement by way of necessity. 2. The main issue involved is whether the plea of easement by prescription in respect of plaint B schedule in O.S.No.1338 of 1997 is established. In the plaint, there is a claim of easement by way of necessity and by prescription. So far as the claim for easement by way of necessity is concerned, it is not disputed that proper evidence was not adduced to prove serverance of tenants. Moreover the Advocate Commissioner appointed has reported that there is an alternative way available to the plaintiff in O.S.No.1338 of 1997. Regarding that alternative way contention of plaintiff is that it passes through the property of other persons. But, there is any evidence to show that there is no obstruction to the use of the alternative pathway. That apart in the absence of plea regarding serverance of tenants a plea of easement by necessity cannot be sustained. The request for amendment of plaint at this distant stage cannot be entertained as the suit is for the year 1997 and no such request was made at the time the appeals were pending before the first appellate court on two occasions. Therefore at this belated stage a request for amendment of the plaint in O.S.No.1338 of 1997 cannot be sustained and no application for amendment of the plaint is filed in this appeal. R.S.A.Nos.22 and 24 of 2010 4 3. So far as existence of the disputed pathway is concerned, Ext.C1 is the first report of Advocate Commissioner. It is true that he has referred to a pathway towards eastern side of property of the defendants. But, it has come in evidence that Commissioner inspected the property at a time when the property was water logged and he stated that his report about existence of the pathway is based on information he got from the parties and attestors in the mahazar he prepared. Commissioner also reported that there was tapioca cultivation recently done in the property of the defendants including the disputed pathway. Another report that is relied on by the learned counsel is Ext.C2 where ofcourse there is reference to the pathway having width of 2-2½ feet which according to the plaintiff is the disputed B schedule. But the Commissioner has not given the oldness of the pathway or its exact width or length. Evidence regarding the alleged user for period prescribed under Section 15 of the Easements Act is sought to be adduced through PWs.1 to 3. The first appellate court has dismissed the evidence of the witnesses for reasons stated in pages 12 onwards. It is stated that even as per case of plaintiff, he got the plaint A schedule only as per Ext.A1, sale deed dated 12-06-1981 and hence his user can start from that time onwards. To prove the alleged user by the predecessor-in-interest, none of them were examined. First appellate court found that evidence of PWs. 2 and 3 is R.S.A.Nos.22 and 24 of 2010 5 of no help to the plaintiff in proving the alleged user for the statutory period. The further finding is that Exts.C1 and C2 do not clearly identify the disputed pathway and details like its width, length, lie and oldness are lacking in the reports. Easement is a precarious right and is a restriction on the proprietary title of the dominant tenement. It has to be specifically pleaded and proved. First appellate court was not satisfied with the evidence adduced regarding the plea of easement by prescription raised by the appellant/plaintiff in O.S.No.1338 of 1997 and consequently that suit was dismissed. Consequent to that finding, plaintiff in O.S.No.1338 of 1997 was given a decree for injunction for protection of his property. Finding of the courts below rest on the evidence on record and do not present any substantial question of law requiring admission of these appeals. Resultantly the second appeals are dismissed in limine. THOMAS P JOSEPH, JUDGE Sbna/