IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 RSA.No. 581 of 2007(C) ---------------------- AS.106/2006 of VI ADDL.DISTRICT COURT, ERNAKULAM OS.838/2000 of PRINCIPAL MUNSIFF COURT, ERNAKULAM .................... APPELLANTS/RESPONDENTS1,2,5/DEFENDANTS 1,2,5: ----------------------------------------------------------------- 1. DR. SALIM, E.N.T. SPECIALIST, BETHLEHEM SCHOOL ROAD, OPP. LOYALA LAIDES HOSTEL, SREEKARYAM, THIRUVANANTHAPURAM-17. 2. SABINA SALIM, W/O. DR.SALIM, E.N.T. SPECIALIST, BEHLEHEM SCHOOL ROAD, OPP. LOYALA LADIES HOSTEL, SREEKARYAM, THIRUVANANTHAPURAM-17. 3. DR. SUBAIR MATHER, S/O. LATE IBRAHIMKUTTY MATHER, KHADEEJA BUILDING, VEEKSHANAM ROAD, ERNAKULAM VILLAGE. BY ADV. SRI.K.P.SREEKUMAR RESPONDENT(S)/APPELLANT AND RSPDTS 3,4,6 & PLNTF.&DEFTS.3,4,6&7: ----------------------------------------------------------------- 1. N. PURUSHOTHAMA PAI, S/O. LATE M.NARAYANA PAI, 41/507, MUNDASSERY HOUSE CHITTOOR ROAD, KOCHI-35. 2. BABU MATHER, S/O. LATE K.C.IBRAHIMKUTTY MATHER, KHADEEJA BUILDING, VEEKSHANAM ROAD, ERNAKULAM VILLAGE. 3. HAJEE HAMEED, C/O. DR.SALIM, BETHLEHEM SCHOOL ROAD, OPP. LOYOLA LADIES HOSTEL, SREEKARYAM, THIRUVANANTHAPURAM-17. 4. MAYANKUTTY MATHER, S/O. LATE K.C.IBRAHIMKUTTY MATHER, KHADEEJA BUILDING, VEEKSHANAM ROAD, ERNAKULAM VILLAGE. R.S.A.NO.581/2007 5. NOOR MATHER, S/O. LATE K.C. IBRAHIM KUTTY MATHER, KHADEEJA BUILDING, VEEKSHANAM ROAD, ERNAKULAM VILLAGE. ADV. N.PURUSHOTHAMA PAI (CAVEATOR) SRI.K.RAMACHANDRAN SMT.R.MEERA FOR R3,4,5 SRI.SATISH MURTI FOR R.1 SRI.R.D.SHENOY, SENIOR ADVOCATE FOR R.1 SMT.UMA MURTHI FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/10/2010, THE COURT ON 14/03/2011 DELIVERED THE FOLLOWING: ORDER ON I.A.NO.3045/2006 IN R.S.A.NO.581/2007 DISMISSED. 14.3.2011 SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.581 OF 2007 ----------------------------------- Dated this the 14th day of March, 2011 J U D G M E N T Defendants 1, 2 and 5 in O.S.No.838 of 2000 of the Principal Munsiff's Court, Ernakulam are the appellants. Suit filed by the 1st respondent/plaintiff for declaration of the right of prescriptive easement over a way, described as B schedule and also for injunction, both prohibitory and mandatory, was dismissed by the trial court. But in the appeal preferred by the 1st respondent, the lower appellate court reversing the decree of dismissal granted a decree declaring that the plaintiff has got the right of prescriptive easement over B schedule way. The other reliefs canvassed in the suit, prohibitory and mandatory injunction, were also granted by which the defendants were restrained from causing any obstruction to the plaintiff from enjoying B schedule way and also directed to remove the concrete structures put up beside A schedule obstructing the ingress and egress to that property by the plaintiff through B schedule. Feeling aggrieved, R.S.A.NO.581/2007 2 the aforementioned defendants have filed this appeal. 2. Short facts involved in the case can be summed up thus: Plaintiff is one of the co-owners in possession and enjoyment of plaint A and C schedule properties. Plaint C schedule is described as a strip of land, having a width of 4' situate along the eastern boundary of plaint A schedule, commencing from south-eastern corner of B schedule pathway and ending in a pathway on the north. A schedule property is described as having 4 cents and odd, comprising the residential building under the occupation of the plaintiff. Admittedly, there is a pathway to A schedule on its northern side providing access to the public road, Chittur Road, situate on the north. The case of the plaintiff is that on the southern side of A schedule as well lies a pathway from the Chittur Road to the property of the 2nd defendant situate on the east, having a length of 75 meters and a width of 14 links. That pathway is bounded on two sides by compound walls except on the south-eastern corner of A schedule, wherein the C schedule proceed towards north. That pathway is described in the plaint as B schedule. Plaintiff claimed a right of prescriptive easement over R.S.A.NO.581/2007 3 B schedule pathway by open, continuous and uninterrupted user of that pathway for the statutory period in continuation of the right so exercised by his predecessors. Imputing interference with the right of his enjoyment over B schedule pathway by the defendants in causing obstruction to its user blocking the entry from that pathway to C schedule, putting up concrete constructions of a boundary wall throughout the northern side of B schedule, the plaintiff laid the suit for the reliefs of declaration and injunction both prohibitory and mandatory. 3. Suit was initially filed against four defendants, but, later, in view of the contentions raised by the contesting defendants and also an assignment made by the 2nd defendant in respect of his property, additional defendants 5 to 7 were also brought in. The 1st defendant adopting the contentions of the 2nd defendant, contended that he has no right over the scheduled properties and as such, he is an unnecessary party to the suit. Similarly, defendants 6 and 7 also contended that they are unnecessary parties to the suit. R.S.A.NO.581/2007 4 4. Suit claims were resisted by defendants 2 and 5, the latter of whom is an assignee of the land from the former, subsequent to the institution of the suit. So, evidently, the contentions raised by the 2nd defendant as against the claims of the plaintiff alone were germane for consideration. 5. B schedule pathway forms part of his registered holding over which neither the plaintiff nor his predecessors had any right of use or enjoyment at any point of time and the claim of prescriptive easement over that pathway is baseless was the main contention of the 2nd defendant among other challenges impeaching the maintainability of the suit as bad for non-joinder of necessary parties and also mis-description of the properties. All along, on both sides of the B schedule pathway, compound boundary walls existed, and at a time when repairs were effected to the boundary wall on the north, the suit was laid setting forth a false claim of right of easement over the pathway was the case of the 2nd defendant. Plaintiff and his family members were using only the pathway situate on the north of A schedule and the claim set up over B schedule situate to the south of A schedule is R.S.A.NO.581/2007 5 unsustainable and they were never in enjoyment of that way, was the case of this defendant. 6. On the pleadings of the parties, the trial court raised five issues which included the question whether the plaintiff is entitled to the declaration of easement over B schedule and the injunctions applied for, both, prohibitory and mandatory, and also the maintainability of the suit challenged by the defendants. On the materials placed by both sides, which consisted of Pws.1 to 5 and Exts.A1 to A10 for the plaintiff, Dws.1 and 2 and Exts.B1 to B9 for the contesting defendants and Exts.C1 to C3 reports and sketches prepared by the advocate commissioner deputed by the court for local inspection, the trial court upholding the contentions raised by the contesting defendants dismissed the suit. That decree of dismissal being reversed allowing the suit claim of the plaintiff, in appeal, the second appeal has been preferred. The following substantial questions of law have been formulated in the appeal for hearing: 1. Whether the first appellate court was justified in holding that Exts.B1, R.S.A.NO.581/2007 6 B2, B5 and B9 established a right of way by easement of prescription ? 2. Whether the first appellate court was justified in reversing the findings of the court without adverting to the evidence tendered including the admissions made ? 3. Whether the evidence on record are sufficient to establish a right of easement by prescription as found by the first appellate court ? 7. The learned counsel for the appellants assailed the decree granted in favour of the plaintiff by the lower appellate court unsettling the decree of dismissal rendered by the trial court as wholly unsustainable under law and on facts. The case of the plaintiff that B schedule pathway is enjoyed in continuation of C schedule pathway, which has been described as lying on the eastern extremities of A schedule as a pathway connecting the lane situate on the northern side of A schedule, according to the learned counsel, is belied by his own title deed, Ext.A1, and the prior documents relating to A schedule produced by defendants as Exts.B6 and B7, and also the other materials tendered in the case. R.S.A.NO.581/2007 7 It has been proved by cogent and convincing evidence that C schedule described separately in the suit is not in existence. Where the use of B schedule with C schedule is canvassed for, it is the submission of the counsel, the non-existence of C schedule as a pathway connected to the lane on the north of A schedule is decisive and material to conclude that there is no basis or merit in the claim of the plaintiff set up over B schedule. The evidence of the plaintiff as PW.1 that the use of B schedule for taking a motor vehicle by PW.4 was with the permission of the 1st defendant and also the level difference between B and C schedule properties as noted by the commissioner, according to the counsel, indicate beyond the shadow of doubt that the claim of prescriptive easement set up by the plaintiff over B schedule pathway was totally bereft of any merit. None of the ingredients to claim prescriptive easement over B schedule is spelt out by the pleadings in the suit and, further, the evidence tendered by the plaintiff himself clearly negatived the claims canvassed, is the submission of the counsel urging that the lower appellate court had, without taking note of the principles of law applicable in judging a claim of prescriptive easement, wrongly interfered with the dismissal of the R.S.A.NO.581/2007 8 suit, and passed the impugned decree erroneously in favour of the plaintiff. That decree is liable to be reversed and set aside, according to the counsel. 8. Per contra, the learned counsel appearing for the respondent, highlighting the limitations in re-appreciating the materials in a second appeal, to examine the correctness of the finding entered on disputed facts by the lower appellate court contended that the decree passed in favour of the plaintiff holding that he is entitled to a right of prescriptive easement over B schedule pathway is unimpeachable and no substantial question of law is involved in the appeal over the decision rendered by that court, on any ground whatsoever. Placing reliance on Iswar Das Jain v. Sohanlal (AIR 2000 SC 426), the learned counsel contended that interference with the findings on disputed facts by the lower appellate court is permissible only on satisfaction of the situations pointed out by the Apex Court and so far as the present case is concerned, none of such situations is involved to re-appraise the materials on record to examine the correctness of the finding made by the lower appellate court. Claim of the plaintiff as to R.S.A.NO.581/2007 9 having prescriptive easement over B schedule pathway has been fully proved by the materials tendered in the case, as rightly and correctly found by the lower appellate court to grant him a declaration thereof, and, the challenge as against that decision in the present appeal is wholly meritless, according to the counsel. The lower appellate court has meticulously examined the pleadings and materials of the case to reach the conclusion that the plaintiff is entitled to a right of prescriptive easement over B schedule and the finding so entered, which is supported by the legal evidence in the case, does not suffer from any infirmity and as such the appeal is not maintainable, is the submission of the counsel. It is also contended that over C schedule property which formed part of A schedule property, no claim of easement was canvassed, but only a case presented that in continuation of the right of easement exercised over plaint B schedule, the C schedule is also used as a pathway to reach the northern lane. A portion of A schedule on its eastern extremity described as C schedule was enjoyed as a pathway in continuation of the B schedule pathway, as claimed, does not, in any way, indicate that the plaintiff had set up a claim of prescriptive easement over C schedule as well, according to the R.S.A.NO.581/2007 10 counsel. The decree granted in favour of the plaintiff by the lower appellate court deserve only to be confirmed, dismissing the appeal, is the further submission. 9. The objections raised by the learned counsel for the respondent that the finding on disputed facts by the lower appellate court is not liable to be interfered with except on situations illustrated in Iswar Das Jain's case, referred to above, by the Apex Court, wherein, the scope of the jurisdiction conferred on this Court over the entertainability of second appeal, only on substantial questions of law involved, that alone, is highlighted, deserve to be taken due note of; but, all the same, once the second appeal has been admitted being satisfied that it involves substantial questions of law, such questions raised necessarily have to be looked into with reference to the pleadings and evidence on the basis of the submissions made by the counsel on both sides. At the outset, without examining the materials, no conclusion is permissible that the findings entered by the lower appellate court on the disputed questions of fact involved in the case, had been made properly and correctly following the law applicable to the R.S.A.NO.581/2007 11 case. In very many cases, the disputed questions involved in the case for adjudication call for determination of rights of the parties by application of the appropriate provisions of law to the facts presented. So much so, when a second appeal had been admitted raising substantial questions of law for consideration, this Court has to look into whether the court below has read the evidence properly and also considered the basic requirements needed to substantiate the case, and it cannot be stated that this Court cannot look into the materials to examine such questions. The appeal does not involve a substantial question of law, if that be so, is a different matter for turning down the appeal, after hearing both sides, even if it had been admitted on raising such questions; but, to proceed that the finding on disputed facts by the lower appellate court is to be treated as final and inviolable cannot be accepted as its correctness may have to be judged with reference to the substantial questions of law formulated, on which, notice of hearing has been ordered in the appeal. No doubt, interfering with the finding of fact by the lower appellate court, which is the final authority on disputed facts is permissible only under the situations illustrated in the reported case. R.S.A.NO.581/2007 12 10. Plaintiff is one among the co-owners having right over A and C schedule properties. He has laid the suit on behalf of all the co-owners to get a declaration of prescriptive easement over plaint B schedule pathway and for injunction both prohibitory and mandatory in respect of such way. Admittedly, plaint A schedule has direct access to Chittur Road situate on the north through a lane which commenced from the north-western corner of A schedule. To the south of A schedule lies B schedule in east-west direction. Over that B schedule the plaintiff and other co-owners of A schedule enjoyed a right of prescriptive easement including the right to ply motor vehicles from the road situate on the west through that pathway up to the eastern extremity and then to pass through the eastern extremities of A schedule, separately scheduled as C schedule, was the case of the plaintiff. Claim set up by the plaintiff over B schedule pathway was disputed by the appellant contending that it is a private way only and at no point of time the plaintiff or other co-owners of A schedule used that pathway as of right, and the claim of prescriptive easement over that pathway set up in the suit is meritless. R.S.A.NO.581/2007 13 11. The description of B schedule in the plaint shows that it is a pathway leading eastwards from the Chittur road, situate on the west, and it has a length of 75 meters and width of 14 links, and bounded on both sides with compound walls. The plaint allegations spell out a case that on the south-eastern portions of A schedule property, an area on the outside wall foundation separating it from B schedule way has been left out connecting that way with the eastern portion of plaint A schedule property. As indicated earlier, that way, stated to be running through the eastern extremity of A schedule has been separately described in the plaint as C schedule. C schedule has been described in the plaint as a 4' wide strip of land lying north-south along the boundary of plaint A schedule property leading from south-eastern corner of B schedule pathway to the pathway on the north. So, on the allegations set out in the plaint and the claim of prescriptive easement set up by the plaintiff over B schedule pathway, which was disputed, its use and enjoyment by the plaintiff and other co- owners of A schedule is something interlinked and closely connected with the use of the pathway described as C schedule R.S.A.NO.581/2007 14 stated as lying on the eastern extremities of plaint A schedule, which on the south is connected to B schedule and on the north to another lane proceeding further towards the north joining the Chittur Road. The plaint description of A schedule shows that its eastern boundary is shown as C schedule and the property of the 2nd defendant. None of the documents produced by the plaintiff in the case spell out the presence of C schedule lying as a pathway to the east of plaint A schedule. More than that, even on the reports prepared by the commissioner it has come out that, that portion of the plaintiff's property, C schedule, which is claimed as a pathway, ends at the north eastern corner of his property and does not proceed any further. That C schedule described in the plaint does not join any lane situate to the north to reach the Chittur road, but ends in the north-eastern corner of A schedule is not disputed even by the plaintiff, but he has a case in evidence that pathway which continued further to north of C schedule is now in possession of third parties and not being used as a pathway. When such be the case, the very foundation set up to claim prescriptive easement over B schedule as having been used to reach the northern lane connecting the Chittur Road through C schedule lacks credibility. R.S.A.NO.581/2007 15 It has to be noted that no claim of prescriptive easement over B schedule as independent from the use of C schedule, for convenient enjoyment of plaint A schedule has been canvassed for or set up on the allegations raised in the plaint to seek declaration of prescriptive easement over plaint B schedule pathway. Previously through B schedule vehicles were brought in from the Chittur road on the east and after reaching the eastern extremity of B schedule such vehicles were taken through C schedule was the case of the plaintiff. C schedule pathway is not connected to the existing northern lane starting from A schedule to the Chittur Road, as stated earlier, is conceded. Then the only question is whether the plaintiff had used and enjoyed B schedule as of right to claim a prescriptive easement over that pathway. 12. Going through the documentary evidence and also the oral evidence tendered by both sides, and in particular, the reports and plans prepared by the advocate commissioner, it is seen that the plaintiff has not proved the essential ingredients to claim the prescriptive easement to sustain such a claim over plaint B schedule property. Even the plaint allegations which have been R.S.A.NO.581/2007 16 referred to above, would indicate that the claim over B schedule was interlinked with the use of C schedule as a pathway. The plaintiff when examined as PW.1 had also conceded that the use of B schedule for taking vehicle through that way by one Satheesh was not on the basis of his right of prescriptive easement over that way but by permission granted by the defendants. When user is by way of permission, there cannot be any claim of easement as of right over the way. 13. The trial court, after appreciating the documentary materials tendered in the case, has concluded that even on the title deeds of the plaintiff over 'A' schedule, access to that property is through the lane situate on its north, which connects with the Chittur road on the northern side. The report and plan prepared by the Advocate commissioner exhibited as Exts.C2 and C3 show that the access to A schedule is through the lane proceeding to north and joining the Chittur road. Plaintiff did not file any objection to that report nor examine the advocate commissioner and surveyor. The existence of a pathway as described under B schedule to the south of A schedule, by itself, is not enough even a R.S.A.NO.581/2007 17 right of user leave alone a right crystallized as a prescriptive easement. The case advanced by the plaintiff to claim prescriptive easement over B schedule is belied by the features present at the site when C schedule described by him is shown to be not existing as a pathway connecting it to the lane proceeding to the Chittur road situate on the north. Without C schedule being enjoyed as a pathway in continuation of the B schedule pathway, the plaintiff has not set up a case as to having any prescriptive easement over B schedule for access to his A schedule property. Even in the proof affidavit filed by him, in lieu of his examination in chief, it has been noted by the trial court, the case of the plaintiff was one of permissive user over B schedule. At some point of time, the owners of B schedule had permitted the plaintiff and another, PW4, to take vehicles through that pathway, and to get it parked in a car shed situated in A schedule or to the north of that property, over which also there is absolute dearth of relevant materials to show at what point of time such permission had been provided and how long it continued, would not enable the plaintiff to set up a claim of prescriptive easement over B schedule. R.S.A.NO.581/2007 18 14. The finding entered by the trial court, which had the opportunity to watch the demeanour and deportment of the witnesses as well, while recording their evidence, after appreciating the materials tendered by both sides in the case and also the commission reports and plans collected through the advocate commission deputed, to conclude that the case set up by the plaintiff claiming right of prescriptive easement over B schedule was false, frivolous and vexatious, and on that basis, to non-suit him, was interfered with by the lower appellate court, which, after re-appreciation of the materials, having a different perception over the materials tendered, reached a conflicting and divergent finding from that of the trial court, to grant a decree in favour of the plaintiff as applied for in his suit. Perusing the judgment of the lower appellate court, it is seen, it has proceeded to consider the disputed questions involved in the case and also the challenge against the dismissal of the suit on a premise that the existence of B schedule way had been disputed by the contesting defendants, which was not their case. The anterior title deeds of the contesting defendants showing the description of a pathway and the measurements given in Ext.A10 survey plan tallying with R.S.A.NO.581/2007 19 the same, according to the lower appellate court, unerringly established that the pathway existed from 1945 onwards, when none of the parties disputed the existence of B schedule as a way. Whether it was a private way to the property of the contesting defendants situate on the south or the plaintiff has a claim of right