IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 RSA.No. 36 of 2008 ---------------------- AS.43/2005 of D.C. & SESSIONS COURT, ERNAKULAM OS.54/1989 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANTS/APPELLANTS/DEFENDANTS --------------------------------------------- 1. PADMANABHAN NAIR, AGED 47, S/O NARAYANAN NAIR, KIZHAKKEDATH, AIRAPURAM KARA, AIRAPURAM VILLAGE. 2. SAROJINI AMMA, AGED 42, W/O PADMANABHAN NAIR, KIZHAKKEDATH, AIRAPURAM KARA, AIRAPURAM VILLAGE. BY ADV. SRI.BECHU KURIAN THOMAS SRI.ROSHEN.D.ALEXANDER RESPONDENTS: RESPONDENT/PLAINTIFF ---------------------------------------------- KRISHNAN, AGED 53, S/O RAMAN, PULICKAKKUDI VEETTIL, AIRAPURAM KARA, AIRAPURAM VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ---------------------------------------------------- R.S.A. No 36 of 2008 --------------------------------------------------- Dated this the 7th July 2008 JUDGMENT Appellants are defendants 1 and 2 in O.S. No 54 of 1989 on the file of the Munsiff's Court, Perumbavoor and they assail the concurrent verdicts passed by the courts below in the suit filed by the respondent. 2. The respondent filed O.S. No 54 of 1989 aforesaid for a decree of declaration and injunction, inter alia, on the allegations that plaint A and B schedule properties belong to him having been allotted to him included in E schedule items of Ext A1 partition deed No 2644 dated 18.12.1972 and he is in absolute possession and enjoyment thereof; that a pathway coming from south to north is used by the plaintiff and defendants for ingress and egress to their properties; that the lane coming from south to north ends in the plaint A schedule property, that from the south of the western portion of plaint B schedule property the way branches towards west, through the north of the property of Ithappiri Varghese and it turns to the north and proceeds towards north upto the house of the defendant through the western side of plaint A schedule property, that another branch of the said RSA 36/08 2 pathway goes towards east through the southern side of plaint A schedule property, that plaint A schedule property lies in two segments that in between the segments a thondu proceeds towards north and ends at the canal on the north of the plaint A schedule property, that the said thondu was put up for draining water as the land slopes towards north and also for the convenience of taking cattle, that the said thondu passes through the eastern side of defendant's property, that the said portion is not being used for the last twenty years, that the first defendant influenced the Revenue Department and survey staff and got the southern portion of the thondu lying in between the two segments of A schedule property being shown as puramboke land, that the said portion had not been used as a way at the time of resurvey or in the near past; that the northern portion of the thondu lying in between A schedule property and defendants' property is not shown as puramboke land, that a complaint as to resurvey also is pending, that the defendants began to raise claim over plaint B schedule property and attempted to trespass upon the same and hence the suit for declaration of his right over plaint B schedule property and for injunction. 3. The appellants-defendnts filed written statement resisting the RSA 36/08 3 suit contending, inter alia, that the property of the defendants is lying on the west of plaintiff's property, that a portion of plaint A schedule and the defendants' property are lying on the west of the disputed way (B schedule), that the way lies in between the properties of plaintiff and defendants, that it is incorrect to say that the way coming from south ends at A schedule property; that in fact it proceeds towards north upto the paddy field through in between the properties of the plaintiff and defendants; that the way proceeding towards west through the south of plaint A schedule property terminates in the property of Achuthan Nair and the property of the defendants lies at a lower level of three feet from the property of Achuthan Nair, that the defendants have no way to go to their property other than through the disputed plaint B schedule way which has been in existence for a long time, that even though B schedule pathway is exclusively through plaint A schedule property, defendants and predecessors were using the same as a way and they have easement right by prescription over the same, that it is incorrect to say that it was put up as a thondu for drawing out water and bringing cattle, that the canal on the north of plaint schedule property was constructed in 1981-1982, that the super pass was constructed by Periyar Valley RSA 36/08 4 Authority and the way proceeds towards north even beyond the canal, that the resurvey was conducted 25 years ago and the defendants have not influenced the resurvey staff and that they have not trespassed upon the scheduled property. 4. On the above pleadings, the trial court raised necessary issues for trial and considering the case in the light of also the evidence adduced at trial, which consisted of oral evidence of P.Ws 1 to 3 and D.Ws 1 to 3 and documentary evidence, Exts. A1 to A3 and Exts B1 to B7 and Exts C1 and C1(a) decreed the suit in part declaring the plaintiff's title and possession over plaint B schedule thondu excluding the puramboke portion therein comprised in resurvey number 25/3 and permanently restraining the defendants from trespassing into plaint A schedule property and into portion of plaint B schedule thondu extending from the north eastern corner of A schedule property lying on the western side of the way upto the northern canal and from destroying the boundaries thereof and also from committing any act of waste therein. It was further specified that the plaintiff is not entitled for an injunction with regard to the portion of B schedule thondu comprised in resurvey 25/3 which is a puramboke land. RSA 36/08 5 5. Appellants assailed the said decree and judgment in A.S. No. 43 of 2005 before the District Court, Ernakulam and the said appeal was dismissed confirming the decree and judgment of the trialcourt. Hence this Regular Second Appeal by the defendants. 6. The suit is for declaration and injunction on the allegation that the defendants are attempting to make out a way through plaint A schedule property, viz, through in between the eastern and western segments of plaint A schedule property describing the portion as plaint B schedule thondu. On the west of a portion of plaint B schedule property is also the property of the defendants. Plaint B schedule is stated to be a portion of land having a width of 5 feet and length of 75 feet comprised in”A” schedule and extending upto east-west canal passing through plaint “A” schedule property. A rough sketch also has been produced by the plaintiff along with the plaint and therein plaint B schedule is shown as E to F portion and it is alleged that the said portion is lying without any use for the last twenty years and wild bush has grown in the said B schedule portion. The lower appellate court has extracted the statement made by the defendants in para 3 of their written statement, which is to the following effect. RSA 36/08 6 By reason of advancing such a claim, defendants have admitted that the plaint scheduled property belongs to the plaintiff, B schedule is a portion from out of A schedule property belonging the plaintiff. Hence the question is as to whether appellants-defendants have established right of easement by prescription as contended by them. In paragraph 4 of the written statement defendants have contended that the plaintiff as also the defendants and their predecessors were using plaint B schedule portion that lies in between plaint A schedule property as a pathway and that the said pathway has got 10 to 12 feet width slanding from south to north and that it is incorrect to say that it ends at the canal running from east to west. In fact it proceeds towards north through the paddy fields. In view of the contentions so set up by the appellants-defendants, as rightly observed by the first appellate court, burden is on the appellants- defendants to establish their right of easement over plaint B schedule RSA 36/08 7 by prescription as title of the plaintiff is admitted by the defendants. It has rightly been observed by the court below that for the plaintiff to succeed in the suit claiming right of easement by prescription, user for twenty years once upon a time is not sufficient. The defendants have to prove the user of the plaint B schedule property as a way continuously and openly as of right for twenty years ending within two years immediately preceding the institution of the suit. The definite case of the plaintiff is that the said portion is not used as a way and the thodu was lying extended from the southern road upto the northern nilam through plaint A schedule property and formerly it was being used to take cattle and now it is lying unused. Exts. C1 and C1(a) are commission report and plan. It has been observed by the court below that the commission report would show that the way coming from south reaches upto A schedule property and it branches towards east and west and B schedule way starts from that way and proceeds towards north. The eastern segment of plaint A schedule property is divided into two portions - the north and south plots by the canal constructed by the Irrigation Department in east west direction. The house of the respondent-plaintiff is in the segment on the north of the canal. Plaint B schedule is shown only upto to the RSA 36/08 8 canal that runs to the west separating the eastern segment of A schedule property into the northern and southern portions. Beyond north of that, the B schedule thondu does not extend. 7. According to the plaintiff, who has tendered evidence as P.W.1, there is no way at present between plaint A schedule property as described in B schedule. Defendants have given evidence examining D.Ws 2 and 3 over and above the evidence tendered by the first defendant as D.W.1. First appellate court has considered the evidence in all its details and has come to the conclusion that the evidence is not sufficient to prove the user of way by the appellants. Continuously as of right openly and publicly for a period of twenty years ending within two years preceding institution of the suit. According to the D.W.2 he knows the property from his 19th year and he is now aged 71 and according to him the way was one which was upto the northern nilam, but after the construction of the irrigation canal it turns towards east and does not proceed to the northern nilam. He has also deposed that in the beginning it was only a thondu having only width of 5 feet though it is presently having the width of 10 feet. The defendant himself has admitted that the canal was constructed in 1981-82 and D.W.2 was giving evidence in 1993. RSA 36/08 9 Suit was filed only in 1989. The alleged widening was within the last twenty years immediately preceding 1993 at the time when D.W.2 was giving evidence and before that it was only a thondu having a width of 5 feet as stated by him. Hence obviously defendants would not have any right of easement over the widened portion. It is further widened towards east namely, into plaint A schedule property that lies on the east and not towards the defendants' property. It is admitted that on the east of such pathway there was no demarcation and on the western side there is a kayyala of the defendants. If so, by the widening the way, the thondu was destroyed and annexed with the property of the plaintiff. At present there is no thondu at all. It is observed by the first appellate court that in cross examination D.W.1 has admitted that he had last gone to the place five or eight years back and he does not know the condition of B schedule thondu for the last eight years. He also admitted that he was going to the paddy fields not through that way at present. The suit was filed in 1989 and D.W.1 was giving evidence in 1993. Hence his evidence is of no use to the appellants-defendants to prove the user of the way continuously for twenty years as of right ending within two years immediately preceding the institution of the suit. D.W.3 has given RSA 36/08 10 evidence that there is a foot track towards the northern paddy field. According to him the way was through the western side of the plaintiff's property and on the western side of the way there is a mud wall constructed by the defendants. He further stated that western mud wall was there but the eastern kayyala was not there and the way is lying adjoining to plaintiff's property. He also stated that it was the plaintiff who destroyed the kayyala and widened it into his property. However he admits that he did not see the destruction of the kayyala. His evidence would thus show that even if thondu was there it was destroyed and it was annexed with the property of the plaintiff by destroying the eastern kayyala of the thondu. He also deposed that at present on the western side of the property of the plaintiff there is a portion which lies as thondu and that the said thondu portion is not lying in such a way so as to have passage as at that portion there are bushes and bamboo clusters. Further he stated that after widening of the thondu into the property of the plaintiff on its east the thondu portion cannot be distinguished. As already stated the evidence of D.W.2 is sufficient to find that the thondu is not in use for the last twenty years ending within two years preceding the institution of the suit. Thus on an evaluation of RSA 36/08 11 the judgments of the trial court and the first appellate court which has considered the entire evidence adduced in the case, I see no merit at all in this Second Appeal and the Second Appeal does not pose any substantial question of law for consideration by this court. In the result, refusing admission, I dismiss this Regular Second Appeal in limine. Sd/- K.P. BALACHANDRAN Judge 7/7/08 en [true copy]