IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 3RD MARCH 2011 / 12TH PHALGUNA 1932 RSA.NO. 704 OF 2010() --------------------- {IN A.S.NO.94/2000 OF THE SUB COURT, CHERTHALA IN O.S.NO.349/1998 OF THE PRINCIPAL MUNSIFF COURT, CHERTHALA} .................... APPELLANT (S):/2ND RESPONDENT/2ND PLAINTIFF ---------------------------------------------------------- PRASANNAKUMARI D/O LEELAKUTTYAMMA, PADMAVILASOM, PADINJATTUMKARA NORTH MURI, THURAVOOR P.O., ALLEPPEY DT. BY ADV. SRI.K.G.BALASUBRAMANIAN SMT.AMBILY (PREMKUMAR) RESPONDENT(S): APPELLANTS 1, 2 /DEFENDANTS 1,2: ----------------------------------------------- 1. KRISHNAKUMARI D/O.SARADAMMA, NOW RESIDING AT KANJIRAMPALLIL, "SARADANILAYAM", PADINJATTUMKARA NORTH MURI, THURAVOOR SOUTH, THURAVOOR PO, ALLEPPEY DT. 2. DEVAN SANKARANKUTTY KARTHA, S/O.PURUSHOTHAMA MENON, KANJIRAMPALLIL, DO. DO. THE NAME OF THE 2ND RESPONDENT IS CORRECTED AS “DEVAN SUKUMARANKUTTY KARTHAVU” AS PER THE ORDER DTD. 29.7.2010 IN I.A.1907/2010 ADV. SRI.V.L.SHENOY FOR R1 SRI.L.JAYAWANTH FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2011, THE COURT ON 03/03/2011 PASSED THE FOLLOWING: RSA.NO. 704 OF 2010 :: ORDER ON I.A.NO.1517/10 IN RSA.NO. 704 OF 2010 DISMISSED. Sd/- (S.S.SATHEESACHANDRAN) 03.03.2011. JUDGE sk/- //true copy// P.S. To Judge. S.S.SATHEESACHANDRAN, J. -------------------------------- R.S.A.No.704 of 2010 --------------------------------- Dated this 3rd day of March, 2011 JUDGMENT The 2nd plaintiff in the suit is the appellant. Suit was for declaration of the right of prescriptive easement of the plaintiffs over a pathway, and for injunction to restrain the defendants from causing any obstruction to the plaintiffs in enjoying such pathway. First plaintiff is the mother of the appellant/2nd plaintiff. Suit was decreed in favour of the plaintiffs, but, pending appeal by the defendants, the 1st plaintiff passed away, and the 2nd plaintiff thereupon was recorded as her legal heir. The decree granted in favour of the plaintiffs, after re-appraisal of the evidence, was reversed by the lower appellate court which non-suited them. Feeling aggrieved, the second plaintiff has preferred this appeal. R.S.A.No.704 of 2010 :: 2 :: 2. Brief facts necessary for disposal of the appeal can be summed up thus: Four items of properties are described in the plaint. Item No.1 is the property of the plaintiffs comprising their residential building which was allotted under the partition effected by the members of their tarwad towards the share of their thavazhi. Ext.A1 is the partition deed. Item No.2 lying to the south of item No.1 was obtained by the 1st defendant under the same deed. Item No.3 which lies to the south and east of item No.2 belonged to the 3rd defendant. To the south of item Nos.2 and 3, there is a panchayat road lying in east-west direction, which joins a National Highway situate on the east. Through item Nos.2 and 3 properties, the plaintiffs are enjoying a pathway from plaint item No.1 to reach the panchayat road. That pathway described as item No.4 which had been R.S.A.No.704 of 2010 :: 3 :: enjoyed even before the partition under Ext.A1 by the members of the tarwad continued to be enjoyed by the plaintiffs after partition, and now, they have prescribed a right of prescriptive easement over the same by their uninterrupted use for more than the statutory period, was the basis of the case set up to claim the reliefs canvassed in the suit alleging threat of obstruction to the enjoyment of the pathway by the defendants. The pathway running through the properties of defendants 1 and 3, is described as having a width of 2 meters and length of 45 meters. 2nd defendant was impleaded in the suit alleging that he is in management of item No.2 belonging to the 1st defendant. Suit claim was resisted by defendants 1 and 3 filing a joint written statement, in which disputing the existence of the pathway, item No.4, through item Nos.2 and 3, they contended that previously R.S.A.No.704 of 2010 :: 4 :: when the properties remained unbounded, the plaintiffs used to pass through their properties on permission given. The plaintiffs have not prescribed any right of prescriptive easement or easement by necessity over any portion of item Nos.2 and 3 properties for use and enjoyment as a pathway, according to them. They also contended that considering the relationship of the parties, they have set apart a pathway touching upon the boundaries of item Nos.2 and 3 of the plaint properties for the use of the plaintiffs as a pathway to item No.1 property from the panchayat road situate on the south. 3. Suit instituted for the reliefs of declaration of right of prescriptive easement and for perpetual prohibitory injunction was later amended by the plaintiffs to seek a decree of mandatory injunction also alleging that obstruction had been caused to item NO.4 pathway R.S.A.No.704 of 2010 :: 5 :: by the defendants by enclosing the pathway constructing a compound wall. 4. On the materials tendered by both sides, which consisted of Pws.1 to 3 and Exts.A1 and A2 for the plaintiffs, Exts.B1 and B2 for the defendants, and, Exts.C1 and C2 series reports and plans prepared by an advocate commissioner deputed by the court for local inspection, the trial court negativing the challenges of the defendants upheld the claims raised by the plaintiffs and granted a decree declaring their right of prescriptive easement over item NO.4 pathway, and also restraining the defendants by prohibitory injunction from causing any obstruction to them in using item No.4 property and putting up any compound wall across that pathway. In appeal preferred by the defendants, after re-appraisal of the materials tendered, differing from the conclusion formed R.S.A.No.704 of 2010 :: 6 :: by the trial court and holding that the plaintiffs have not proved the right of prescriptive easement over item NO.4 property nor the existence of the pathway as described, the decree granted in favour of the plaintiffs was reversed and they were non-suited. Feeling aggrieved, the appeal has been preferred. 5. Substantial questions of law raised for hearing of the appeal deal with: (i) the correctness of the finding on easement by prescription with reference to Ext.A1 entered by the lower appellate court which analysing the plaint allegations had expressed, the view that the claim of prescriptive easement by the plaintiffs was as a co-owner against other co-owners and thus not sustainable? (ii) Is not a burden cast upon the defendants to prove the existence of alternate pathway when they have pleaded that the user of their property as a pathway previously could be only termed as an easement by R.S.A.No.704 of 2010 :: 7 :: necessity and that had been extinguished by the availability of alternate pathway; (iii) Prosecution of the first appeal and its disposal on merits, after the death of one of the appellants pending the appeal no legal representatives of such appellants brought on record, with the application moved belatedly for such impleadment stood dismissed, and, thus, resulting in the appeal by that appellant being abated. 6. The learned counsel for the appellant, relying on Govinda Laxman v. Namdeo Balu {2005 (3) KLT SN 18 [Page No.12]} and Bakshish Singh v. Arjan Singh & ors {1996 (8) SCC 323} contended that the appeal preferred before the lower appellate court which was presented after the death of the 3rd appellant in that appeal without his legal representatives being brought on record, and the application belatedly moved for that purpose having been dismissed by that court could not have been R.S.A.No.704 of 2010 :: 8 :: disposed on merits as it had abated as a whole. The disposal of such appeal on merits, that too interfering with the decree of the trial court, according to the counsel, was improper and unsustainable. I do not find any merit in the challenge so mooted by the counsel to impeach the decision rendered by the lower appellate court in the first appeal, for the reason that such appeal had abated by the death of one of the appellants. Principles laid down in the decisions cited apply only to cases where the decree challenged is joint and indivisible and the death one of the parties, arrayed as an appellant or respondent for non-impleadment of his legal representatives within time, has the effect of causing the abatement of the appeal as a whole. In the present case, the first appeal was preferred by the defendants jointly as against the decree passed in the suit declaring R.S.A.No.704 of 2010 :: 9 :: the right of easement over a pathway and also an injunction in favour of the plaintiffs. This was a case where one of the defendants could maintain an appeal for getting a reversal of the decree as against all the defendants in the suit as envisaged under Rule 4 of Order XLI of the Code of Civil Procedure. So, the challenge against maintainability of the present appeal taking exception to the disposal of the first appeal on merits, in view of the death of one of the appellants in such appeal and non- impleadment of his legal representatives within time, is devoid of any merit. 7. The lower appellate court in its judgment observing that there could be no claim of easement by one co-owner against other co-owners has held that in the present case the plaintiffs had set up such a case to seek the declaration of easement in their suit. View so R.S.A.No.704 of 2010 :: 10 :: taken by that court, according to the learned counsel for the appellant, was a misconstruing of the pleadings and also the evidence of the case. The decision of the lower appellate court on such basis to interfere with the decree of the lower appellate court, it is submitted, was patently erroneous. I find force in the submissions made by the counsel, after going through the allegations raised in the plaint with respect to the claim of easement over the pathway canvassed by the plaintiff. In paragraphs 6 and 7 of the plaint, the plaintiffs have alleged that even before the division of the properties as among the co-owners, item No.4 pathway existed and it was enjoyed by all the members of the tarwad and after the partition under Ext.A1 deed in 1971, the right enjoyed previously over such pathway continued to be exercised by the plaintiffs and they have R.S.A.No.704 of 2010 :: 11 :: obtained a right of prescriptive easement of such use peaceably, uninterruptedly and without any obstruction by such use for the statutory period, was the case pleaded. Without properly appreciating the pleadings set out in the case and also taking note of the principles applicable in the matter of easements when the partition of the joint ownership and joint possession of the whole property are transformed into separate and exclusive ownership and possession of different portions by different co-owners, the lower appellate court has jumped into some conclusions that the plaintiffs' claim for declaration of easement was set up on the basis that such right of easement commenced as co-owner against the other co-owners. When the property remains joint, of course, no co-owner can claim or acquire any right of easement over any other co-owner. So long as the property R.S.A.No.704 of 2010 :: 12 :: remains undivided, even if the co-owners have separate possession of such property, as the ownership of different portions remains with all the co-owners, there is neither dominant and servient heritage nor dominant and servient ownership, but upon severance of the joint property by partition, a grant of easement will be implied, if one of the severed portions cannot be enjoyed at all, except with certain rights in the nature of easement, and in cases where the rights which continued earlier for enjoyment of the separated portion while it remained undivided with whole is essential for its proper and effective enjoyment. On the fact situation presented, the right so ensuing to the sharers may be one of easement by necessity or a quasi easement, depending upon the satisfaction of the essential conditions thereof. However, if there is any express contract to the contrary R.S.A.No.704 of 2010 :: 13 :: relating to the matter, no question arises as to the grant of easement by implication. So, in the given facts of the case where the case of the plaintiffs was that when the property remained undivided the pathway in item No.4 running through the properties of the defendants was used and enjoyed by members of the family for ingress and egress to the tarwad house situate item No.1, which was allotted to their share on division, and such right after partition continued to be enjoyed by the plaintiffs for the statutory period of more then 20 years, the claim of right of easement over the pathway canvassed by them could not have been negatived as if they are setting up a claim of easement as a co-owner against other co- owners, as done by the lower appellate court. 8. Item No.4 pathway is described in the plaint as having a width of 2 meters and R.S.A.No.704 of 2010 :: 14 :: having a length of 45 meters, commencing from the southern side of item No.1 property belonging to the plaintiffs and proceeding through item Nos.2 and 3 of the defendants, and reaching the panchayat road on the southern side. The whole pathway takes in 2.250 cents as per the description given. The existence of such a pathway has been disputed by the defendants, the owners of items 2 and 3, the servient tenement holders. The plaintiffs had taken out a commission, and two reports with plans were obtained through the commissioner as Exts.C1 series and C2 series. Plans prepared were only rough sketches. The advocate commissioner, who was examined as PW.3 has reported the presence of a beaten track having a length of 42.8 meters with an average width of 70 cms. He has also reported the pathway is not having a fixed width. R.S.A.No.704 of 2010 :: 15 :: 9. The plaintiffs, it is seen, had not identified with precision the pathway over which the prescriptive easement was claimed. Whatever materials collected and proved by the commissioner, at best, would only show a pathway, but of a lesser extent than what is described under item No.4 in the suit. The trial court was therefore not justified in granting the plaintiff a declaration of right of prescriptive easement over item No.4 pathway, as described in the plaint, which has not been established by cogent and convincing evidence. Both the courts below have not examined the question whether any relief could have been granted to the plaintiff with respect to the pathway shown in the rough sketch prepared by the commissioner with reference to the evidence let in the case. The rough sketch prepared by the commissioner and also his reports do not R.S.A.No.704 of 2010 :: 16 :: give exact particulars of the width of the pathway on various parts which, according to the petitioner, differed from one place to another, but he has unequivocally stated that the average width is 70 cms. In case the claim canvassed by the plaintiff in the suit over a pathway running through the property of defendants 1 and 3, the existence of which is borne out by the commission report and plan, but with difference in measurement from that of the description given as item No.4 in the suit, and also the right of prescriptive easement canvassed over such pathway, whatever be its length and width, is shown to be probable by the materials tendered, then, definitely non-suiting the plaintiffs without examining whether the reliefs canvassed in the suit could be moulded, to meet the ends of justice, is not proper and correct. R.S.A.No.704 of 2010 :: 17 :: 10. The trial court, as already indicated, granted a decree in favour of the plaintiffs without scrutinising the materials properly. The declaratory relief over item No.4 pathway, as claimed by the plaintiffs, which was not proved, by that court was not justified. The lower appellate court misconstrued the pleadings and failed to scrutinise the evidence tendered in the case with respect to the claim pleaded by the appellant/2nd plaintiff. It reversed the decree of the trial court as if the claim of the plaintiffs for prescriptive easement over the pathway through the property of defendants 1 and 3 was set up as co-owners against other co- owners in a joint property. I have already pointed out that what was pleaded by the plaintiffs was only the accommodation of a pathway which existed over the notified properties when it remained joint before R.S.A.No.704 of 2010 :: 18 :: partition was effected, and, later, its continuation for over the statutory period, which according to the plaintiffs, crystallised their right of prescriptive easement over such pathway running through the properties obtained by the defendants from the tarwad. So, on the fact situation presented it has become imperative to examine the evidence tendered to find out whether the claim canvassed by the plaintiffs over the pathway, of a lesser width and extent than what is described under item No.4, as a right or prescriptive easement to have a declaration thereof, has been made out in the case. 11. Plaintiffs have examined Pws.1 to 3. Going through the evidence of 2nd plaintiff as PW.1, it is seen that she has deposed to her claim in tune with what has been pleaded in the plaint. She has asserted that the accommodation R.S.A.No.704 of 2010 :: 19 :: of a pathway, which existed previously over the joint property, after Ext.A1 partition was continued peaceably, uninterruptedly and as of right more than the statutory period and that thereby the plaintiffs have prescribed a right of prescriptive easement over the pathway running through the properties of defendants 1 and 3. In the given facts of the case, whether the accommodation which existed previously when the property was joint could have been claimed only as an easement by necessity by one or the other sharers, subject to the allotment made under the partition deed, is of little significance as the parties have not joined issue on that question at all with the defendants stoutly denying even the existence of the pathway claimed through their property by the plaintiffs. Other than putting forth a suggestive question disputing her right of way, R.S.A.No.704 of 2010 :: 20 :: it is seen that none of the assertions made by PW.1 was impeached though she was vehemently cross-examined. The most pertinent aspects deposed to by her to sustain her claim of prescriptive easement as pleaded in the case remained uncontroverted and her testimony was unshaken. PW.2 is the brother of the 1st plaintiff having his residence close-by the suit properties. His evidence, in support of the claim of the plaintiffs over the pathway, is not liable to be discarded for the reason that he is a close relative. May be, he had some interest in the cause canvassed by the plaintiffs in view of their relationship. However, his interestedness without anything more, to doubt the intrinsic worth of his evidence cannot be given much significance. In the case of PW.2 also, what is seen is that there was no challenge in the cross-examination impeaching R.S.A.No.704 of 2010 :: 21 :: his evidence in support of the claim of the plaintiffs. Other than inviting his attention to Ext.B2 partition deed and questioning him that after such partition, the witness and the plaintiffs could not claim ownership over the properties covered by that deed, which the witness fairly conceded asserting that there is right only over away, practically, there was no challenge to his evidence in support of the case of the plaintiffs. PW.3 is the Advocate Commissioner who prepared reports and plans Exts.C1 series and C2 series, after conducting local inspection on two different occasions. Immediately after filing the suit, a report and a rough sketch were prepared by him, which indicated of the existence of a pathway commencing from the property of item No.1 of the plaintiffs and proceeding through the properties of defendants 1 and 3, till it reached the R.S.A.No.704 of 2010 :: 22 :: panchayat road in the south. That report and sketch were marked as Exts.C2 and C2(a) in the case. The report and plan by him on the basis of a subsequent local inspection is produced and marked as Exts.c1 and C1(a). That report and plan were obtained when the plaintiffs complained of the obstruction caused by the defendants to the existing pathway after carving out a new pathway through their properties as if that way was being used by the plaintiffs. The case of the plaintiffs as to the blockage caused to the previously noted pathway under C2(a) and carving a new pathway in the properties of the defendants, was found true on second inspection by the advocate commissioner. 12. In Exts.C2 and C2(a) report and plan prepared on the inspection conducted immediately after the institution of the suit, the commissioner had reported that on both sides R.S.A.No.704 of 2010 :: 23 :: of the pathway noticed a chal had been dug up for putting up a boundary wall. The existence of a pathway, but having lesser width and length than described under item No.4 was reported by him in Exts.C2 and C2(a) was also not seriously assailed by the defendants. Where the evidence let in by the plaintiffs, as discussed above, show the existence of a pathway though the property of defendants 1 and 3 for ingress and egress to item No.1 property of the plaintiffs, it is interesting to note that there was no counter evidence other than the production of two partition deeds, Exts.B1 and B2 by the defendants who had disputed the pathway. None of the defendants mounted the box to swear in support of the contentions put forward by them to resist the suit claim. As already indicated, when Pws.1 and 2 were examined, their assertion over the existence of the pathway and its R.S.A.No.704 of 2010 :: 24 :: enjoyment as a right of easement by the plaintiffs remained unimpeached. Where the existence of a pathway, but of lesser width and length than described is shown as passing through the properties of defendants 1 and 3 from item No.1 property of the plaintiffs, has been proved, the claim of the plaintiffs as to having a prescriptive easement over such pathway as identified is probable and acceptable. 13. The learned counsel for the respondent relying on Ibrahim Kutty Koyakutty v. Abdul Rahiman Kunju Ibrahim Kutty and others {1992 (2) KLJ 468} contended that on the pleadings set out by the plaintiffs over item No.4 pathway the claim of the right of prescriptive easement over the same is not allowable as it is vague, not precise and clear. It is further contended that even the reports prepared by the commissioner would R.S.A.No.704 of 2010 :: 25 :: indicate that the pathway at the site does not have any uniform width as claimed, but only of a much lesser extent of an average of 70 cms only. Reliance is also placed on Justiniano Antaov. Bernadette B. Pereira {AIR 2005 SC 236} to contend that where the plaintiffs are shown to be having access through another way, their claim of a way though the property of the defendants should be appreciated differently. Where the claim is based on a right of easement by prescription, according to the counsel, not only that there should be a categoric pleadings, but also proof that the plaintiffs have been peaceably, openly and without interruption using the same as of right for the last 20 years with specific particulars in the pleadings since what date to which date one is using the access for the last 20 years. To establish the right of prescription to the detriment of the other R.S.A.No.704 of 2010 :: 26 :: party, according to the counsel, one has to aver specific pleadings and lead categorical evidence, both of which, it is submitted, are absent in the case. Going through the plaint allegations, I am unable to subscribe to the submissions made by the counsel that the claim of right of easement canvassed by the plaintiffs over item No.4 pathway is