IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 19TH AUGUST 2010 / 28TH SRAVANA 1932 AS.No. 469 of 2000(D) ------------------------- OS.664/1994 of PRL.SUB COURT,THRISSUR .................... AAPPELLANTS/DEFENDANTS:- 1. NARAYANAN, S/O. KALARIKKAL HUNHIRAMAN, PALAYOOR DESOM, GURUVAYOOR AMSOM, CHAVAKKAD TALUK, THRISSUR. 2. CHANDRAN, S/O. ATHIKKOTT APPU, PALAYOOR DESOM, GURUVAYOOR AMSOM, CHAVAKKAD TALUK, THRISSUR. 3. VELAYUDHAN, S/O. ATHIKKOTT CHOZHI. PALAYOOR DESOM, GURUVAYOOR AMSOM, CHAVAKKAD TALUK, THRISSUR. 4. JOHNSON MATHEW, S/O. PULIKKOTTIL MATHEW, PALAYOOR DESOM, GURUVAYOOR AMSOM, CHAVAKKAD TALUK, THRISSUR. 5. RAZIYA, D/O. KALLURAYIL UMMER, PALAYOOR DESOM, GURUVAYOOR AMSOM, CHAVAKKAD TALUK, THRISSUR. BY ADV. SRI.N.P.SAMUEL RESPONDENTS/PLAINTIFFS:- 1. THACHUMMA, W/O. PUTHIYA VEETTIL CHERIYA MUHAMMED, THERUVATH HOUSE, PALAYOOR DESOM, GURUVAYOOR AMSOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. 2. PATHUKUTTY, D/O. PUTHIYA VEETTIL CHERIA MUHAMMED, THERUVATH HOUSE, PALYOOR DESOM, GURUVAYOOR AMSOM, CHAVAKKD TALUK, THRISSUR. 3. HAMSA, ENGINEER, S/O. PUTHIYAVEETIL CHERIA MUHAMMED, THERUVATH HOUSE, PALAYOOR DESOM, GURUVAYOOR AMSOM, CHAVAKKAD TALIK, THRISSUR. 4. AYISHAKUTTY, D/O. PUTHIYAVEETIL CHERIYA MUHAMMED, THERUVATH HOUSE PALAYOOR DESOM, GURUVAYOOR AMSOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. 5. SUHARA, D/O. PUTHIY7AVEETIL CHERIYA MUHAMMED, THERUVATH HOUSE, PALAYOOR DESOM, CHAVAKKAD TALUK, THRISSUR. 6. KHADEEJA, D/O. PUTHIYAVEETIL CHERIYA MUHAMMED, THERUVATH HOUSE, PALAYOOR DESOM, GURUVAYOOR AMSOM, CHAVAKKAD TALUK, THRISSUR. BY ADV. SRI P.V.CHANDRAMOHAN THIS APPEAL SUITS HAVING COME HAVING BEEN FINALLY HEARD ON 19/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P NO.4415/2000 IN AS.NO. 469/2000 DISMISSED 19/08/2010 M.N. KRISHNAN, JUDGE //TRUE COPU// P.S. TO JUDGE SVS. M.N. KRISHNAN, J. ........................................... A.S.NO.469 OF 2000 ............................................. Dated this the 19th day of August, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree in O.S.No.664/1994 of the Subordinate Judge's Court, Thrissur. The suit is one for mandatory as well as prohibitory injunction. 2. It is the case of the plaintiffs that plaint A and B schedule properties belonged to them and they are in possession and enjoyment of that properties. It is the case of the plaintiffs that the defendants had trespassed into the property and filled a portion of A schedule property which is specifically described as B schedule and thereby had resulted damages and injuries to the plaintiffs. The defendants have no manner of right or possession over the plaint schedule properties. Therefore the plaintiffs are seeking a relief of mandatory injunction and permanent prohibitory injunction. 3. The defendants would contend in different styles. In opening paragraph of the written statement they claimed that they have right of easement by prescription and easement of necessity over the path way lying on the western side of : 2 : A.S.NO.469 OF 2000 the plaint schedule property etc. It is also submitted by them that plaintiffs have to prove that plaint B schedule is a part of A schedule. It is further averred that plaint B schedule pathway has been in existence for the last 30 years. The defendants have continuous right jointly, uninterruptedly and peacefully and as of right had enjoyed the property and thereby they are entitled to prescriptive right over the plaint schedule property. 4. The trial court on an analysis of the materials, rejected the case of the defendants and granted a decree in favour of the plaintiffs. The learned counsel for the appellants strongly contends before me that the finding of the trial court is in correct. It is the definite case of the plaintiffs that plaint B schedule property is a part of A schedule property and it is a wet land which was lying 5 feet lower in level to the adjacent property. According to the plaintiffs, the defendants and their henchmen trespassed into the property, filled the B schedule property with earth and made it to a height of about 5 to 7 feet and now they are attempting to use it as a way for their ingress and egress. It : 3 : A.S.NO.469 OF 2000 has to be specifically stated that the defendants are not divulging their real defence in the suit. If it is easement by prescription only over the property of another person and unless the title of that person is admitted, prescriptive right cannot be claimed. So virtually a claim of easement by prescription results in admitting the title of the plaintiffs over the B schedule property. There is a half hearted attempt in the written statement that entire B schedule does not belong to the plaintiffs. Absolutely no materials are supplied. Now it is significant to note the Commissioner's report who had inspected the property immediately after the institution of the suit. The Commissioner has found that the plaint B schedule property is a recently filled up land and the mud and other materials used are fresh and the soil is loose. It is also reported by the Commissioner that there are other ways for ingress and egress to the property of the defendants. He has also specifically stated that mud work done in the plaint schedule property is absolutely of a recent origin. Therefore the Commissioner's report makes it crystal clear that tampering of B schedule property has been done recently by : 4 : A.S.NO.469 OF 2000 somebody. This cannot be anybody other than the defendants for the reason that they are the persons who are interested in it for getting a way. The evidence of Pws1 to 3 and Dws 1 and 2 analysed would reveal the following facts. The plaintiffs' witnesses would assert that the plaint schedule properties, i.e., A and B schedule form a paddy land and had been filled up. The evidence of the defendants also would indicate that B schedule property was a ridge. If it is a ridge lying at a higher level, by concept that will belong to the person, ie., A schedule property holder. So there is an admission on that aspect. If really there had been a pathway as alleged by the defendants in the their written statement, it would have been proved by examining the neighbours or any other persons. The adjacent owner namely Alavi is also not examined. Therefore the attempt of the defendants is to deny everything, but a close reading of the written statement would reveal that they are claiming prescriptive right over the property. It is a settled principle that easement is a right which is given to a person in another man's property and therefore, the court should be extremely cautious for : 5 : A.S.NO.469 OF 2000 the reason that it limits right of the real owner of the property. Here there are no materials to prove the existence of way for a long time even. The Commissioner's report makes it crystal clear that it is of a recent origin formed where the earth is still in a loosening condition and the materials used are fresh and green in nature. Therefore the case of the plaintiffs that the defendants had trespassed into the property, filled up the earth and carved out B schedule property from A schedule appears to be acceptable, reasonable and believable. 5. Therefore I find that the trial court has properly evaluated the matter and arrived at a correct decision in granting the decree. The appeal fails and the same is dismissed, but without costs. If the defendants do not restore the property in its original position within a period of two months from today, the plaintiffs are at liberty to move the court for implementation of the decree. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 6 : A.S.NO.469 OF 2000 M.N. KRISHNAN, J. ........................................... A.S.NO.469 OF 2000 ............................................. 19th day of August, 2010. J U D G M E N T