IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 15TH JULY 2011 / 24TH ASHADHA 1933 RSA.No. 216 of 2004() --------------------- AS.219/1998 of ADDL. DISTRICT COURT (SPL.COURT), KOTTAYAM OS.231/1996 of MUNSIF COURT, KANJIRAPPALLY .................... APPELLANT/ APPELLANT/PLAINTIFF. ---------------------------------------- AMMINI @ KATHIRINE, D/O.ANTONY, VETTICKAL, NOW RESIDING AT KALLIVAYALIL, POOVARANY VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.SUJESH MENON V.B. SRI.MATHEW JOHN (K) RESPONDENT(S): RESPONDENTS/DEFENDANTS. -------------------------------------- 1. KUTTANAD RUBBER COMPANY LIMITED, KAINAKARY, HAVING ESTATE AT PAZHOOTHADAM, REP. BY THE MANAGING DIRECTOR, K.J.THOMAS, RESIDING AT KALACHANDRA, CHINGAVANAM, KOTTAYAM. 2. THE MANAGER, PAZHOOTHADAM ESTATE EDAKKUNNAM VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM. BY SRI.A.M.SHAFFIQUE, SENIOR ADVOCATE FOR R1 SMT.PRIYA KRISHNAMOORTHY FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15/07/2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.216 OF 2004 --------------------------------------------- Dated 15th July, 2011 JUDGMENT Plaintiff in O.S.231/1996 on the file of Munsiff court, Kanjirappally is challenging the concurrent decree dismissing the suit. Respondents are the defendants. Suit was filed for a declaration that appellant has a right of way by easement of prescription over item No.3 of the plaint schedule road, passing through item No.2 of the plaint schedule property belonging to respondents and for a permanent prohibitory injunction restraining respondents from causing alteration to the nature of item No.3 road or obstruction to the appellant using the RSA 216/04 2 road. Appellant would contend that item No.1 of the plaint schedule property belongs to her under Ext.A1 sale deed No.1723/1985 and she has been in possession of the property since then and her predecessor-in-interest and subsequently the appellant has been using plaint schedule item No.3 road passing through item No.2 of the plaint schedule property and joining Parathodu-Chemmalamattom road maintained by PWD, which lies to the west of item No.1 of plaint schedule property. It is her case that they have been using it openly, peaceably, uninterruptedly and continuously, as of right and as an easement for the last 45 years and thereby they acquired a right of easement by prescription over item No.3 road and respondents are not entitled to cause any obstruction. Respondents in the written statement contended that Parathodu- RSA 216/04 3 Chemmalamattom road was originally Parathodu- Palapra road and the road originally existed upto the estate of the first respondent and it extended beyond the estate only in 1991 and only thereafter it was converted into a public road and grand father of the husband of the appellant was Managing Director of the first respondent company for a long time. 55 acres of land lying on the east of the estate of the first respondent belonged to the Chako Joseph, the father-in-law of the husband of the appellant, and his brother and item No.1 of the plaint schedule property is a part of the 55 acres. Parathodu-Vengathanam public road as on the east of the 55 acres and the way to the said estate is towards the said eastern road. Item No.1 was also under the management of the husband of the appellant being part of the Kalapurackal estate. When that property RSA 216/04 4 including item No.1 was replanted in 1988, at the request of the husband of the appellant, considering that his grand father was the Manging Director of the first respondent company, permission was granted to take vehicles through item No.2 property to transport rubber trees from item No.1. The said alignment is having a width of 10 feet. As properties between the Kalapurackal estate was lying vacant, it was not closed immediately. Parathodu-Chemmalamattom road was subsequently extended further towards the north and the road was converted as PWD road. The appellant was not using the road as of right and as an easement and in any case it was being used only from 1988. Therefore, appellant is not entitled to the decree sought for. 2. Learned Munsiff on the evidence of Pws.1 to 4, DW1, Exts.A1 to A3, B1, B2 and RSA 216/04 5 Exts.C1 to C4 dismissed the suit finding that appellant did not establish the right of easement by prescription over itemNo.3 road. Learned Munsiff found that evidence adduced by the appellant did not satisfy the necessary ingredients constituting a right of easement by prescription. Learned Munsiff also found that the original private road was converted to a PWD road only later and in spite of the contention raised by the respondents that it was converted only in 1991, appellant did not produce the records to show that PWD road was in existence earlier. Learned Munsiff also found that Ext.B2, copy of the plaint in O.S.372/1989, a suit instituted by the daughter of the appellant in respect of the property which lies to the east of item No.1 of plaint schedule property, shows that there was no way from the west and in such circumstances, held RSA 216/04 6 that appellant is not entitled to the decree for declaration or injunction sought for. Appellant challenged the judgment before District court, Kottayam in A.S.219/1998. Learned Additional District Judge on re- appreciation of the evidence confirmed the findings of the learned Muniff and dismissed the appeal. It is challenged in the second appeal. 3. The appeal was admitted formulating the following substantial questions of law. 1) Were not the courts below bound to cast the burden on the defendants, to substantiate their defence plea of permission for the user of the road by the appellant. 2) Did not the courts below commit an illegality in taking into account the RSA 216/04 7 existence of an alternate pathway, to reject the claim of the appellant, based on easement by prescription. 3) Are not the judgments of the courts below founded substantially on surmises and conjectures. 4. Learned Senior counsel appearing for the appellant was heard. 5. Learned Senior counsel pointed out that when the appellant specifically contended that Parathodu-Chemmalamattom road is PWD road which has been in existence long back, respondents contended that it was originally a private road only upto their estate and was extended further beyond the estate only in 1991 and in such circumstances, it is for them to prove that PWD road came into existence only in 1991 and the burden to prove that fact cannot RSA 216/04 8 be cast on the appellant and finding of the courts below is not sustainable. Learned counsel also contended that it is the specific case of the respondents that the alleged permission was granted in 1988 to take the vehicle through item No.2 property for removing the rubber trees cut from the property of the husband of the appellant, including item No.1 of the plaint schedule property, and the evidence establish that item No.1 was replanted in 1984 or 1985 and therefore, the alleged permission granted in 1988 cannot be true. Learned Senior counsel would argue that if that be the case, it is to be found that appellant and her predecessors have been using item No.3 road, not as per any permission of the first respondent as found by the courts below, but only as of right and as presumption. Learned Senior counsel finally submitted that when RSA 216/04 9 appellant is not a party to O.S.362/1989 and it was a suit instituted by her daughter, by production of Ext.B2 copy of the plaint, courts below should not have relied on Ext.B2 without proof and in any case, the allegations in the plaint filed by the daughter of the appellant cannot be treated as an admission of the appellant and courts below, in such circumstances, should have found that appellant did establish a right of easement by prescription. Learned Senior counsel also argued that there is no reason to disbelieve the evidence of Pws.2 and 3, the neighbours who had deposed that the appellant and her predecessors have been using item No.3 road for more than 27 years and Parathodu-Palapra road was in existence much earlier, and in such circumstances, the decree for declaration of right of easement and injunction should have RSA 216/04 10 been granted. 6. Admittedly, appellant obtained right and title to item No.1 of the plaint schedule property under Ext.A1 sale deed only in 1985. Suit was filed in 1996. Therefore, even if appellant has been using item No.3 road since the date of Ext.A1 assignment deed, appellant cannot claim a right of easement by prescription. To enable her to claim the right of easement by prescription, it is to be proved by the appellant that her predecessor has also been using item No.3 road as of right, as an easement, continuously, openly and peaceably without interruption for the requisite period twenty years. The question is whether on the evidence appellant has succeeded in establishing the ingredients of right of easement by prescription. 7. Appellant was not examined. She did RSA 216/04 11 not examine her predecessor also. On behalf of the appellant, her husband was examined as PW1. Evidence of PW1 shows that he has knowledge about the properties only subsequent to his marriage. Hence his evidence will not establish that predecessor-in-interest of the appellant has been using item No.3 road and that too as of right and as an easement. The other evidence is that of Pws.2 and 3. PW4 is only the Commissioner who submitted Exts.C1 to C4 reports and plans. 8. Question is whether the evidence of PWS.2 and 3 would establish that appellant and her predecessor have been using item No.3 road as of right and as an easement. When PW2 was aged 35 years PW3 was aged 34 years, at the time of their examination. As rightly found by the courts below their evidence is with regard to the usage of the way, even before their RSA 216/04 12 birth, though PW3 has claimed only knowledge 27 years prior to the date of examination. Scrutiny of the evidence of Pws.2 and 3 do not show that based on their evidence, it could be found that appellant or her predecessors have been using item No.3 road and that too as of right and as an easement. Though Ext.B2 copy of the plaint cannot be treated as an admission by the appellant, as she was not the plaintiff in O.S.362/1989 and her daughter alone was the plaintiff. Evidence of PW.1, the husband of plaintiff in O.S.362/1989 shows that it was the plaintiff in that suit along with her husband PW1 who had given instructions to prepare the said plaint. Evidence of PW1 was also shows that item No.1 and plaint schedule property in O.S.362/1989 were all parts of the same estate at that time. In such circumstances, though Ext.B2 cannot be treated as an admission by the RSA 216/04 13 appellant, it would definitely be used for holding that daughter of the appellant had asserted that the way available to estate of which item No.1 was also a part, does not extent further towards west and no other way was available to the estate except from the eastern road. If item No.3 road was then available to item No.1 of plaint schedule property, it cannot be believed that daughter of the appellant would have asserted in Ext.B2 that no other way is available to the plaint schedule property in O.S.362/989 which is part of the same estate at that time. It is therefore, definitely a circumstance, which would point out that there was no right available to the appellant in 1989, towards the west to reach the present PWD road. Argument of the learned Senior counsel is that even according to the respondents permission was RSA 216/04 14 granted only in 1988 to take rubber trees from item No.1 of the plaint schedule property through item No.2 of the plaint schedule property and therefore, when evidence prove that item No.1 was replanted in 1984 or 1985, there could not be permission to take the vehicles through item No.2 in 1988. Even if that be the case, question is whether there is evidence to prove that the road was being used for more than twenty years and that too as of right when neither the appellant nor her predecessor was examined to prove that the use of way was as of right and not as permitted by the first respondent, it can only be found that they were using it only under the permission granted by the first respondent. That could only be the reason why in Ext.B2, existence of a way from the west to the whole estate was not mentioned. When the evidence is appreciated in RSA 216/04 15 the proper perspective, it can only be found that appellant did not succeed in establishing that appellant or her predecessors have been using item No.3 of the plaint schedule road, as of right and as an easement, openly, peaceably and continuously without interruption for more than 20 years prior to the institution of the suit. In such circumstances, finding of the courts below that appellant is not entitled to the decree for declaration or injunction is perfectly correct and warrants no interference. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.