IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 SA.No. 378 of 2000(C) --------------------- AS.5/1998 of SUB COURT,KATTAPPANA OS.104/1996 of MUNSIFF COURT,KATTAPPANA .................... APPELLANT(S)/RESPONDENT/PLAINTIFF: --------------------------------------------------------- MATHEW, W/O. ISSAC, KAKKATTU HOUSE, KATTAPPANA KARA, KATTAPPANA VILLAGE. BY ADV. SRI.K.P.DANDAPANI, SENIOR ADVOCATE RESPONDENT(S)/APPELLANTS/DEFENDANTS: ---------------------------------------------------------------- 1. DEVASSIA, S/O. ULAHANNAN @ POOMATTAM PAPPA, AGED ABOUT 49 YEARS, RESIDING AT POOMATTAM HOUSE, KATTAPPANA KARA, KATTAPPANA VILLAGE, UDUMBANCHOLA TALUK. 2. JOSEPH, S/O. ULAHANNAN, AGED ABOUT 51 YEARS, RESIDING AT POOMATTAM HOUSE, KATTAPPANA KARA, KATTAPPANA VILLAGE. ADV. SRI.P.JACOB VARGHESE, SENIOR ADVOCATE THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 378 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of November, 2011. JUDGMENT The plaintiff in O.S. 104 of 1996 before the Munsiff's court, who had his suit dismissed by the lower appellate court is the appellant. 2. The subject matter of the suit relates to a narrow strip of land situate between the buildings of the plaintiff and defendants, which as per the evidence on record has a width of 1.5 feet. According to the plaintiff, that strip of land belong exclusively to him and he is in possession of the same. He says that the space was left for constructing a staircase at a later stage. When he attempted to put up a staircase, that was objected to by the defendants and that necessitated the suit. 3. The defendants resisted the suit by contending that the claim of the plaintiff was untrue and there was a S.A.378/2000. 2 permission granted by the predecessor-in -interest of the plaintiff to the defendants to make use of the narrow strip of land as a passage to the rear portion of the building to carry materials to the rear portion of their building. They also filed a counter claim setting up prescriptive right of easement to use the said way. 4. On the above pleadings, issues were raised and parties went to trial. The evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts.A1 to A9 series from the side of the plaintiff. The defendants had D.Ws. 1 and 2 examined and Exts. B1 to B3 marked. Exts. C1 and C1(a) are the commission report and plan. 5. The trial court on an evaluation of the evidence found that the plaintiff has exclusive possession over the suit property and the defendants have no manner of right to use the same. The trial court also found that even assuming what the defendants claimed is true, and if at all there was a permission to use the narrow strip of land, it was S.A.378/2000. 3 permissive in nature and the plaintiff was entitled to revoke the permission at any point of time. The claim of prescriptive right of easement raised in the counter claim was found against. Finding that the defendants have no manner of right over the narrow strip of land lying between the two buildings, the suit was decreed. 6. The defeated defendants carried the matter in appeal as A.S.5 of 1998. The lower appellate court concurred almost with the finding of the trial court and was also of the view that the prescriptive right of easement claimed was not established. Surprisingly enough, the lower appellate court then goes on to say that there was a grant by the plaintiff's predecessor-in-interest in favour of the defendants and therefore the defendants have acquired easement by grant to use the narrow strip of land. Accordingly, the appeal was allowed and the suit was dismissed. S.A.378/2000. 4 7. Notice is seen issued on the following questions of law: “i) Whether a right of easement by grant can be decreed without any specific pleadings to that effect? ii) Is not the counter claim raised by the defendants barred under Order XXIII Rule 4? iii) What is the effect of use “not pressing” an earlier suit between the parties on the very same subject matter? iv) Whether the defendants have succeeded in proving all the ingredients to establish easement by grant? v) Whether the lower appellate court justified in reversing the judgment and decree passed by the court below?” 8. Learned counsel appearing for the appellant contended that the finding of the court below that the defendants are entitled to easement by grant cannot be sustained for more reasons than one. Apart from the fact S.A.378/2000. 5 that there was no permission as found by the trial court, there was no pleading to that effect either in the written statement or in the counter claim raised by the defendants. The right of easement by grant is the innovation of the lower appellate court without any foundation in the pleadings or evidence in the case. The plaintiff was taken by surprise by the claim of right of easement by grant. Learned counsel drew the attention of this court to the fact that the lower appellate court has found that the plaintiff is in possession of the property and that the defendants' counter claim was rightly rejected by the trial court. Having found so, the lower appellate court was not justified in invoking the right of easement by grant to non-suit the plaintiff. It is contended that the judgment and decree of the lower appellate court are unsustainable in law. 9. Per contra, learned counsel appearing for the respondents contended that even assuming that the plea raised in the counter claim and also the plea based on S.A.378/2000. 6 easement by grant fails, the plaintiff cannot succeed since he has to establish that he is in absolute possession and enjoyment of the strip of land over which he lays claim in the suit. On his own showing, though it could not be seen that the defendants had been permitted to use the narrow strip of land, there is nothing to show that the plaintiff was in exclusive possession of the same. It is pointed out that even as admitted by the plaintiff, one of the keys of the lock of the gate was given to the defendants which shows that the defendants have some manner of right to use the narrow strip of land. Even assuming that the defendants had not raised a counter claim, that is not sufficient to grant a decree in favour of the plaintiff unless he establishes that he has exclusive possession over the disputed area. It is also pointed out by the learned counsel for the respondents that under the guise of the decree in the suit, the plaintiff is attempting to put up structures. Accordingly, it is contended that though for different reasons, there is no justification for S.A.378/2000. 7 interfering with the judgment and decree of the lower appellate court. 10. Though the argument of the learned counsel for the respondent may be attractive at the first blush, on a close scrutiny it can be found to be without any basis or foundation. The evidence clearly shows that the narrow strip of land belongs to the plaintiff and he is in possession of the same. Of course the defendants have produced certain documents including the written statement filed by the predecessor in interest of the plaintiff in another suit, who was the defendant in the said suit. In that document there is no mention regarding the narrow strip of land and also handing over of the key of the gate to the defendants in the present suit. It was mainly this factor which had taken aid of by the lower appellate court to find that there is an easement by grant. The mere fact that the key had been handed over to the defendants is not sufficient to find out whether there is an easement by grant. The definite case of S.A.378/2000. 8 the defendants was that they were allowed to use the narrow strip of land to carry materials to the rear portion of their building. One may remember that the width of the pathway is only 1 ½ feet. 11. The plaintiffs have a case that the narrow strip of land was retained when the new building was put up with a view to put up a staircase outside. They have also admitted that they had to put up a gate to prevent the use by the public of that portion for answering the call of nature. The evidence of P.W.1 shows that the narrow strip of land is a portion of the property owned and possessed by them and the defendants have no manner of right over the same. 12. One has to remember that the claim put forward by the defendants in the counter claim was that they had prescriptive right of easement. That means the title and possession of the plaintiffs over the narrow strip of land is admitted and they claim right in derogation of the absolute right of the plaintiff. Having failed to establish their S.A.378/2000. 9 claim, it comes with little grace from the defendants to say that the plaintiff failed to establish his right, title and possession over the suit property. The trial court had considered all these aspects and had come to the conclusion that the plaintiff is in exclusive possession of the suit property. The lower appellate court, without any pleadings and evidence, had erroneously come to the conclusion that the defendants have establised right of easement by grant to use the narrow strip of land. 13. However, one fact needs to be noticed. The apprehension expressed by the learned counsel for the respondent that under the guise of the decree in the suit, the plaintiff may not be allowed to put up structures illegally and contrary to the relevant provisions. 14. Of course there is a prayer that the defendants shall not obstruct the plaintiff from putting up structures in the narrow strip of land. As rightly pointed out by the learned counsel for the respondents, the decree S.A.378/2000. 10 granted by the trial court cannot be utilized as a method to put up structures, if that is not in accordance with law. In the result, the judgment and decree of the lower appellate court are set aside and the decree of the trial court is restored subject to the condition that the decree will not entitle the plaintiff to put up structures in the narrow strip of land if it is not in accordance with law. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.