IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 SA.No. 781 of 2000(B) -------------------------------- AS.NO. 8/1996 of ADDL.DISTRICT COURT, THODUPUZHA OS.NO. 321/1992 of MUNSIFF'S COURT,THODUPUZHA .................... APPELLANT(S)/ APPELLANTS-ADDL.PLAINTIFFS 2 TO 5 --------------------------------------------------------------------------------- 1. LALITHA SURESH, WIFE OF LATE SURESH, RESIDING AT LEELALAYAM, THODUPUZHA. 2. SANDHYA UNNIKRISHNAN, RETNA VILAS, ASHRAMAM ROAD, KALADY, ERNAKULAM. 3. SINDHU SAJIKUMAR, VANIYAPURAYIL HOUSE, NEAR GOVERNMENT L.P.SCHOOL, KANJIRAMATTOM, THODUPUZHA. 4. SUNDER.S., SON OF SURESH, LEELALAYAM, THODUPUZHA. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENTS/RESPONDENTS/DEFENDANTS --------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM. 3. THE PRINCIPAL, DISTRICT INSTITUTE OF EDUCATION AND TRAINING, THODUPUZHA. 4. THE PRESIDENT, PARENTS AND TEACHERS ASSOCIATION, D.I.E.T., THODUPUZHA. R1 & R2 BY SR GOVERNMENT PLEADER SRI.M.R.SABU THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P.BHAVADASAN, J. ------------------------------------- SA No.781 of 2000 ------------------------------------- Dated this the 23rd day of June 2011 Judgment Faced with the concurrent decrees by the courts below, the plaintiff in OS No.321/92 before the Munsiff's Court, Thodupuzha, has come up in appeal. The suit was one for declaration and injunction. 2. The plaintiff laid claim over a narrow passage which was being used by him for a long time as a pathway to gain access to his property. Both the courts below found that the plaintiff had miserably failed to establish prescriptive right of easement claimed by him. 3. At one point of time, it is admitted that both A schedule property and B schedule pathway belong to the plaintiff. However, evidence is clear to the effect that the residential building is situated in A schedule property, thereby indicating that there was another way through which the plaintiff could have access to his property. There SA 781/00 2 was a padippura on the northern side which he pulled down and thereafter he laid a road on the western side of the public road. He laid a claim of prescriptive right of easement over B schedule pathway. Reliance is placed on Exts.X1 and X2, which according to the plaintiff, are sufficient to show that the public authorities have found the existence of a pathway. He also relied on the evidence of PWs 1 to 3 to assert that there exists a road. The courts below found that plaint B schedule property had been lying as an open compound it is possible that the plaintiff may have used the same for easy access to the public road on the southern side. 4. The courts below were of the view that it is not a case of necessity for the plaintiff to use the pathway, but one of convenience. Both the courts below took the view that mere usage of a way, however long it may be, without satisfying the ingredients to attract prescriptive right of easement, cannot confer any right on the plaintiff. SA 781/00 3 5. The learned counsel for the appellant assailed the finding on the ground that both the courts below have proceeded on the presumption that since there is an alternate way available to the plaintiff, the prescriptive right of easement is not available to him in respect of B schedule pathway. According to the learned counsel for the appellant, both the courts below have omitted to notice that the building situated in A schedule property is 50 years old and so also, the B schedule pathway. The evidence in the case shows that the plaintiff has been using the pathway for more than the statutory period required. The fact that he has been using it is clear from the records and if that be so, a presumption arises that he uses it as of right. The learned counsel relied on the decision reported in Maniyan Krishnan v. Nanukuttan (1986 KLT 203). Accordingly, it is contended that the courts below have erred in negativing the plaintiff. 6. Though the argument may look formidable, on a closer scrutiny, it can be seen that it is without any SA 781/00 4 substance whatsoever. As rightly noticed by the courts below, it is possible that southern property was lying as an open plot, people including the plaintiff may have used the same for gaining access to the main road. It may be profitable to note that the building of the plaintiff situated in A schedule property faces towards north and there was a padippura also on that side. It was later demolished by the plaintiff. It has also come out in evidence that the plaintiff has laid a motorable road from the western public road also. As rightly noticed by the courts below, since adjacent school compound was lying as an open land, it is possible that the plaintiff must have used it for gaining access to the southern public way. At any rate, he had other means of access to his property through the western and northern sides. 6. True, merely because there are alternate ways, it is not a ground to reject the plea of prescriptive right of easement. As rightly noticed by the courts below, even assuming the plaintiff has been using the beaten SA 781/00 5 track, it was not as a matter of right and as an easement, satisfying the ingredients necessary to attract Section 15 of the Indian Easement Act. In the decision relied on by the learned counsel for the appellant, though it is observed that there may be a presumption as contended by the learned counsel, ultimately, it is held that each case should be decided depending upon the circumstances of that case and there is no inflexible rule in that regard. The relevant portion of the decision in Maniyan Krishnan (supra) reads as follows : “Finally, the learned Judge said that it is for the court to consider whether a presumption could reasonably be drawn looking to the circumstances of each case such as the nature and character of the servient land, the relation between the parties and the circumstances and the manner in which the user has taken place.” 7. The facts already stated persuaded the courts below to take the view that even assuming B schedule pathway exists, the plaintiff had miserably failed to SA 781/00 6 establish that he has been using it as a matter of right and as easement without interruption as claimed by him. Therefore, even assuming that he used B schedule pathway for access to the road on the southern side, that confers no right on him. The students studying in the nearby school are also making use of the same pathway to take water from the well in the compound of the plaintiff. Even assuming that the plaintiff was also using the way shown as B schedule to gain access to the southern public way, that could not be characterised as a matter of right. The courts below have rightly come to the conclusion that the plaintiff is not entitled to any reliefs as sought by him. The findings are arrived on appreciation of evidence and are pure questions of fact. No substantial questions of law arise for consideration in this appeal. The second appeal is without any merits and it is liable to be dismissed. I do so. However, there will be no order as to costs. P.Bhavadasan, Judge SA 781/00 7 sta SA 781/00 8