IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 RSA.No. 1065 of 2010() ---------------------- AS.52/2009 of ADDL. DISTRICT COURT, PARAVUR OS.531/2006 of MUNSIFF COURT,ALUVA .................... APPELLANTS/REPONDENTS/PLAINTIFFS ---------------------------------------------------- 1. BHAVANI, AGED 66 YEARS, W/O. LATE VELAYUDHAN KARAKKATUPARAMBIL, ANGATTU KARA, ANGAMALY VILLGE, ALUVA TALUK. 2. JAYASREE, AGED 44 YEARS, W/O. KOVUNKAL CHANDRAN, ELAMKUNNAPUZHA VILLAGE, KOCHI TALUK. 3. KRISHNA KUMAR, AGED 42, S/O LATE VELAYUDHAN, KARAKKATTU VEEDU, MANGATTU KARA, ANGAMALY VILLAGE, ALUVA TALUK. 4. BAIJU, AGD 37, S/O. LAGE VELAYUDHAN, KARAKKATTU KARA, ANGAMALY VILLAGE, ALUVA TALUK. 5. SREEJA, AGED 29, W/O. MANI, NADUVIL VEEDU, AKAPARAMBU KARA, NEDUMBASSERY VILLAGE, ALUVA TALUK. BY ADV. SRI.M.C.SEN, SENIOR ADVOCATE SRI.GEORGE VARGHESE KIZHAKKAMBALAM SRI.V.RAJENDRAN (PERUMBAVOOR) RESPONDENT(S): AAPPELLANTS/DEFENDANTS ------------------------------------- 1. SUBRAMANIAN, AGED 56, S/O.KARAKKATUPARAMBIL VELAYUDHA, MANGATTU KARA, ANGAMALY VILLAGE, ALUVA TALUK. 2. RADHAKRISHNAN, S/O. KARAKKATTUPARAMBIL VELAYUDHAN, MANGATTU KARA, ANGAMALY VILLAGE, ALUVA TALUK. 3. UNNIKRISHNAN, S/O. KARAKKATTUPARAMBIL VELAYUDHAN, MANGATTU KARA, ANGAMALY VILLAGE, ALUVA TALUK. 4. SAVITHRI, W/O. SUBRAHMANIAN, RESIDING AT KARAKKATTUPARAMBIL, MANGATTU KARA, ANGAMALY VILLAGE, ALUVA TALUK. ADV. SRI.V.V.ASOKAN FOR R1 TO 4 SMT.RUKHIYABI MOHD KUNHI FOR R1 TO 4 ADV.M.C.SEN (SENIOR) THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA NO.1065 OF 2010 ............................................ DATED THIS THE 13th DAY OF JUNE, 2011 JUDGMENT Plaintiffs in O.S.531 of 2006 on the file of Munsiff Court, Aluva are the appellants. Defendants are respondents. Appellants instituted the suit claiming a decree for declaration of right of easement by prescription over plaint B schedule way which is a portion of the property belonging to the respondents. Plaint A schedule property admittedly belonged to Velayudhan, the husband of the first appellant and father of the remaining appellants having obtained it under Ext.A1 partition deed 2241/1984. Appellants would contend that Velayudhan died in 1999 and on his death, appellants being the legal heirs are the owners in possession of the plaint A schedule property and plaint B schedule way is the only way available to the plaint A schedule property and the said way starts from the south-western corner of the plaint A schedule property and proceeds towards the south through the property of respondents 1 and 2 and reaches the southern municipal road and the way is having a width of 8 feet RSA 1065/2010 2 and length of 63.2 metres. Appellants and their predecessors have been using that way for more than 22 years openly, peaceably without interruption and as of right as a private way for taking vehicles and thereby prescribed a right of way by easement of prescription and the respondents are not entitled to cause any obstruction to the said usage. Alleging that there was an attempt to cause obstruction to the way prior to the institution of the suit, the suit was instituted. Respondents in their written statement though admitted the right of the appellants to the plaint A schedule property, contended that they have no right over the plaint B schedule property and plaint B schedule is part of their property and appellants or their predecessors have never used that way and therefore they are not entitled to the decree. 2. Learned Munsiff on the evidence granted a decree holding that Pws 2 to 5 are independent witnesses and Exts.C1 and C2 reports establish the existence of a way starting from the southern road till it reaches the property of Savithri, the wife of first respondent and it is admitted and the evidence of Pws 1 to 5 establish that appellants and their predecessors have been using that way as of right, openly, peaceably and continuously without RSA 1065/2010 3 any obstruction and therefore upheld the claim for right of easement by prescription and granted the decree. Respondents challenged the judgment before Additional District Court, North Paravur. Learned Additional District Judge, on reappreciation of evidence found that all the ingredients of the right of easement by prescription as provided under Section 15 of Indian Easement Act was not pleaded and the evidence of witnesses examined on behalf of appellants do not establish that appellants or their predecessors have been using the plaint B schedule way and therefore set aside the judgment of the trial court and dismissed the suit. It is challenged in the second appeal. 3. Second appeal was admitted after formulating the following substantial questions of law. “1) Whether not the finding of the lower appellate court that there are no sufficient pleadings as required under section 15 of the Easements Act is erroneous. 2)Whether the finding of the lower appellate court that the appellants failed to establish that they were enjoying B schedule way through out the statutory period is correct. 3) Whether the reappraisal of the oral RSA 1065/2010 4 evidence by the lower court is correct and legal”. 4. Learned senior counsel appearing for appellants and learned counsel appearing for respondents were heard. 5. Relying on the decision of the Honourable Supreme Court in Ram Sarup Gupta V. Bishum Narain inter college (AIR 1987 SC 1242) followed by this court in Mathai V. Jordi Poulose @ Jordi and others (2011(2) KHC 591), the learned senior counsel pointed out that except the specific allegation that the way was being used as an easement, all other ingredients as provided under Section 15 of Indian Easement Act are pleaded and respondents have understood that the right of way claimed is a right of way by easement of prescription and a reading of paragraph 6 of the plaint establish that the right of way claimed was a right of way by easement of prescription and therefore the first appellate court was not justified in holding that there was no proper pleading. Learned senior counsel also pointed out that even though trial court appreciated the evidence in the proper perspective and accepted the evidence of Pws 2 to 5 as corroborating the evidence of PW1, with regard to the right of RSA 1065/2010 5 way claimed, first appellate court without discussing the evidence of witnesses held that their evidence is insufficient and hence argued that first appellate court did not appreciate the evidence and it was not justified in interfering with the factual findings of the trial court. Learned senior counsel argued that existence of the way starting from the southern road upto the southern boundary of plaint A schedule property was not disputed and is proved by Ext.C1 report submitted by the Commissioner and the evidence of PW1 along with that of Pws 2 to 5 establish that appellants and their predecessors have been using this way as of right and as an easement openly and peaceably for more than 22 years prior to the institution of the suit and therefore the decree granted by the trial court is to be restored. 6. Learned counsel appearing for respondents pointed out that even the learned Munsiff did not properly appreciate the evidence and without discussing the evidence of Pws 2 to 5, only found that they are independent witnesses and then held that their evidence establish the right claimed by appellants, ignoring the fact that they are not independent witnesses. Learned counsel pointed out that PW3 is the wife of PW2, PW4 was the RSA 1065/2010 6 father in law of third appellant, PW5 was father's brother and the evidence of PW3 shows that in a criminal case at the instance of PW3 was a witness on behalf of the third appellant and therefore the witnesses are not independent witnesses as found by the trial court. Learned counsel also pointed out that Ext.A1, the title deed of appellants establish that while the properties were divided and alloted to the share of Velayudhan, under Ext.A1, a way was provided from the eastern public road which runs towards the west and reaches the plaint A schedule property having a width of one kole and even though PW1 was cross examined with regard to the way, he expressed ignorance and the evidence of PW1 therefore cannot be relied on. Learned counsel pointed out that when a way having a width of 1 kole was provided under Ext.A1, in the ordinary course there would not have been a way through the property of others on the south as claimed by appellants and on a proper appreciation of the evidence, it can only be found that appellants have not used plaint B schedule way, much less as of right and as an easement for the requisite period and therefore first appellate court rightly held that they are not entitled to the decree sought for. RSA 1065/2010 7 7. Though the pleading does not contain a specific averment that appellants and their predecessors have been using the plaint B schedule way as an easement, as all other ingredients provided under Section 15 of the Indian Easement Act were pleaded, it is not proper to non suit the plaintiff on that ground for want of such pleading. 8. First appellate court though found that appellants failed to plead all the necessary ingredients of Section 15 of the Indian Easement Act, the suit was dismissed not on that sole ground but finding that appellants did not establish a right of easement by prescription. The question therefore is whether there was sufficient evidence to prove that appellants or their predecessors have been using the plaint B schedule way openly, peaceably and continuously for more than 20 years without interruption and that too as an easement and as of right. Out of the appellants, only first appellant was examined as PW1. Appellants are claiming right over plaint A schedule property being the legal heirs of deceased Velayudhan and Velayudhan obtained the right over the property under Ext.A1 partition deed. Ext.A1 conclusively establish that while separating plaint A schedule RSA 1065/2010 8 property to Velayudhan, a way starting from the eastern public road and proceeding towards the west upto the plaint A schedule property, having a width of 1 kole, was provided. The case of appellants could have been appreciated, if they have a case that even before Ext.A1 partition, appellants or their predecessors have been using the plaint B schedule way which proceeds towards the south and reaches the southern public road, continuously and without interruption as of right and as an easement and even though a way towards the east was provided, appellants continued to use the old way which was being used, towards the south and they thereby prescribed a right of easement by prescription. That is not the case. Plaint is silent about the way having a width of 1 feet, which proceeds from the east of the plaint A schedule property, as provided under Ext.A1. Even when PW1 was cross examined with regard to the way starting from the eastern municipal road, he has no case that though the said way was provided under Ext.A1, appellants did not use the same. It is clear from the evidence of PW1 that he tried to express ignorance of the existence of that way. PW1 deposed that the property which lies immediately to the east was RSA 1065/2010 9 the property of the father and towards its east is the property of his father's sister, Sarada and towards its east is the property of Parvathy, towards its further east is the property of Ammini, who are all the sisters of Velahudhan and to the east of the property of Ammini is the municipal road. Though he admitted that from the municipal road there is a way to the property of Ammini, he expressed ignorance towards the further west. It is thus clear from a proper appreciation of evidence that, evidence of PW1 is not credible and cannot be relied on to uphold a right of way. When a specific way having a width of 1 kole was provided under Ext.A1, in the normal course there would not be a way towards the south. If there was such a way towards the south, there was no necessity to provide a way towards the east as it would amount to loss of some extent available to the sisters of Velayudhan. Therefore, for that sole reason, I find that the claim of appellants cannot be true. 9. Though learned senior counsel vehemently argued that first appellate court did not properly appreciate the evidence of the witnesses and therefore appreciation of evidence was perverse, that is the same case with the learned Munsiff also. RSA 1065/2010 10 Apart from saying that the witnesses are neighbours and independent and their evidence establish the claim of the appellants, learned Munsiff did not consider their evidence independently. First appellate court has at least pointed out the discrepancy in the evidence of Pws 2 and 3, the husband and wife and held that their evidence cannot be relied on. On going through the entire evidence, I have no hesitation to hold that appellants did not succeed in establishing that they have been using the plaint B schedule way openly, peaceably and continuously for 20 years prior to the institution of the suit, much less as of right and as an easement. Therefore, appellants are not entitled to the decree sought for. Consequently, appeal is dismissed. In view of the dismissal of appeal, applications for injunction and violation of injunction, I.A.Nos.2352 of 2010 & 998 of 2011 are also dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk