IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 SA.No. 255 of 2003() -------------------- AS.310/1999 of DISTRICT COURT, THRISSUR OS.1166/1994 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT(S): RESPONDENT NO.1 - PLAINTIFF ----------------------------------------- MARY, W/O.LATE PULIKKOTTIL ANTHONY, ARIKANNIYUR DESOM, KANDANASSERY VILLAGE, THALAPPILLY TALUK. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN RESPONDENT(S): APPELLANTS & RESPONDENT NO.2 - DEFENDANTS 1 TO 3 -------------------------------------------------------- 1. KUMARAN, S/O.KANNAMPILLY RAVUNNY, ARIKANIYOOR DESOM, KANDANASSERY VILLAGE, TALAPPILLY TALUK. 2. CHANDRAN, S/O. DO. IN DO. DO. 3. VASU, S/O.KANNAMPILLY RAVUNNY, ARIKANIYOOR DESOM, KANDANASSERY VILLAGE, TALAPPILLY TALUK. ADV. SRI.JIJO PAUL FOR R1 TO R3 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.255 of 2003 -------------------------------------- Dated this the 2nd day of December, 2009. JUDGMENT This Second Appeal arises from judgment and decree of learned District Judge, Thrissur in A.s.No.310 of 1999 reversing judgment and decree granted by learned Additional Sub Judge-I, Thrissur in favour of the appellant. Appellant sued respondents for decree for prohibitory injunction based on a plea of easement by prescription over the disputed pathway, plaint B schedule. It is not disputed that plaint A schedule belonged to the mother-in-law of appellant as per Ext.A1, assignment deed No.1807 of 1110 ME. Appellant claimed that after the death of the mother-in-law that property devolved on her husband and on death of the husband, on herself and children. There is a Panchayat road towards east of plaint A schedule and from that Panchayat road plaint B schedule, described as a lane originated and reached upto plaint A schedule. It is her case that herself and predecessors are using plaint B schedule and acquired right of easement by prescription. They used to take vehicles through plaint B schedule. She alleged that respondents who own properties towards south of plaint B schedule attempted to annex it to their property by fixing stumps on the northern side of plaint B schedule and putting granite stones in it. That necessitated filing the suit claiming reliefs as above stated. Respondents contended that plaint B schedule formed part of their property and that it originally was a 'thondu'. During the time they constructed a well in that SA No.255/2003 2 property, mud collected from the well was deposited in the thondu. They denied claim of appellant that she obtained right of easement by prescription and stated that appellant has an alternative way which herself and predecessors has been and is using for access to plaint A schedule. Appellant gave evidence as PW1 and examined two witnesses, PWs 2 and 3. Respondent No.1 gave evidence as DW1. He examined DW2 in support of his case. Trial court accepted the version of appellant and granted decree in her favour. First appellate court reversed the same and dismissed the suit holding that plea of easement by prescription is not proved . Hence the Second Appeal urging the following by way of substantial questions of law: i. Has not the lower appellate court made an essentially erroneous approach to the whole case by presuming it to be conceded, that the plaint B schedule pathway lies in the property of the respondents? ii. Whether on the facts and in the circumstances of the case the lower appellate court has committed an error of law in ignoring the vital admission of DW1 disclaiming ownership of the plaint B schedule property? iii. Is not the court bound to draw an adverse inference against the respondents for the non-production of their document of title? SA No.255/2003 3 iv. Has not the lower appellate court committed an error of law in allowing the respondents to alter the boundaries and obstruct the user of the only pathway to the plaint A schedule property? v. In the absence of even formal objections, is the lower appellate court correct in law in ignoring the report and plan of the advocate commissioner on the existence, use and age of the plaint B schedule pathway? vi. Is the finding of the lower appellate court that there is no sufficient pleading in the plaint for establishment of a right of way sustainable in law? vii. Whether the judgment and decree of the lower appellate court are sustainable in law? It is contended by learned counsel for appellant that the mere fact, even if it is so that an alternative way existed is no ground to defeat a claim of easement by prescription which according to the counsel has been proved by evidence and circumstances emerging the case. It is also the contention of the learned counsel that even if it is assumed that plaint B schedule did not belong to the respondents they have no right to interfere with plaint B schedule and the first appellate court should have granted relief of injunction to maintain the present condition of plaint B schedule. Learned counsel for respondents in response contended that the plea of easement by prescription would not stand since it is SA No.255/2003 4 nowhere admitted by the appellant either in the plaint or in her evidence that plaint B schedule belonged to respondents. It is contended by learned counsel that evidence let in by the appellant is insufficient to prove user of plaint B schedule as an easement by prescription for the prescribed period. 2. Ext.C1(a) is the sketch prepared by the advocate commissioner. He has shown in Ext.C1(a) that plaint B schedule originated from the Panchayat road on the east and reached plaint A schedule on the west. That way has width of ten feet on either ends. Commissioner has shown a lane originating from the middle of plaint A schedule, going towards south and then turning towards east and west. The portion towards west reaches paddy field on the further west while the portion towards east reaches the Panchayat road. Though it is stated by appellant in the plaint that disputed way is referred to in the document of title relied on by her (Ext.A1), it is not disputed that the reference in Ext.A1 is not to the disputed way (plaint B schedule). Ext.A1 takes in three items of which plaint A schedule is item No.2. Eastern boundary of item No.2 in Ext.A1(plaint A schedule) is described as 'lane' (which is the alternative way shown by the commissioner in Ext.C1(a) as situated on the east of plaint A schedule) and parambu. Thus, it is clear from Ext.A1 and C1(a) that the lane towards south along the eastern side of plaint A schedule was in existence even on the date of Ext.A1. SA No.255/2003 5 3. So far as the alleged user of plaint B schedule is concerned, appellant gave evidence as PW1 and examined PWs 2 and 3. PW2 stated that he resides 4-5 houses away from plaint A schedule, himself not able to say about the distance at which he is residing. PW3 stated that he resides a few parambas away from the suit property and he had been there for unloading goods. Evidence of PWs 2 and 3 gives the impression that they are not neighbours to plaint A schedule. First appellate court observed that if the appellant and predecessors were using plaint B schedule from the time of Ext.A1 normally witnesses from their neighbourhood would have been examined. 4. According to the appellant herself and predecessors were not, and is not using the alternative way shown by the advocate commissioner since that way is neither cartable nor usable. She has also stated that through the said way there is water flow during rainy season. Commissioner reported that on the eastern extremity that way joins the Panchayat road its level is equal with the Panchayat road. But on other parts of that lane commissioner found some pits or portion of lane at higher level. 5. Yet another important aspect to be noted is that while claiming right of easement by prescription dominant owner must admit title of the servient onwer over the disputed way. Relevant decision on the point has been cited by the first appellate court. Neither in the plaint nor in the evidence of appellant as SA No.255/2003 6 PW1 she has admitted that plaint B schedule belonged to the respondents. On the other hand it would appear from the pleadings and evidence of appellant as PW1 that entitlement of respondents is only upto the southern side of plaint B schedule. Thus there is lack of pleadings so far as the ownership of plaint B schedule with the respondents. 6. In Ext.A1 there is reference to a lane forming the eastern boundary of item No.2, plaint A schedule. If actually plaint B schedule was in existence then, naturally reference would have been to that lane as the eastern boundary of plaint A schedule. Moreover, it is seen that the lane on the east of plaint A schedule running north-south reaches upto the middle of plaint A schedule and does not go further towards north which indicated that the said way was intended to provide access to the plaint A schedule alone. As against that the case pleaded by the appellant is that disputed B schedule is referred to in Ext.B1 which has been found to be not correct though the contention need not be said to be 'false' as pointed out by the first appellate court. 7. First appellate court has considered evidence on record and come to the conclusion that plea regarding right of easement by way of prescription is not established. I stated that appellant has not admitted ownership of plaint B schedule with the respondents. In fact the main thrust of the contention in the Second Appeal is that plaint B schedule does not belong to the respondents. If that be so appellant is not entitled to a finding that she has prescribed a right of SA No.255/2003 7 easement under Section 15 of the Easements Act as against the respondent. True, mere existence of an alternative way, even if it has been in use by the appellant is not sufficient to defeat the claim of easement by way of prescription. First appellate court observed that the alternative way was in existence for the exclusive use of the appellant as seen from its nature, extent and lie. It is then argued by learned counsel for appellant that at any rate, even if it is assumed that respondents are not admitted to be owners of plaint B schedule still the appellant is entitled to get a decree of injunction to maintain the present condition of plaint B schedule. Respondent No.1 in his evidence as DW1 stated that plaint B schedule belongs to the respondents. Appellant did not produce contra evidence. Nor did she say to whom else plaint B schedule belonged. She has no case that plaint B schedule is a public road. She has also not proved what exactly is her right over plaint B schedule. Hence the contention that appellant is entitled to the relief of injunction to maintain the status quo cannot be accepted. 8. First appellate court has referred to the evidence and come to the conclusion that plea of easement by prescription is not established by the appellant. That is a finding of fact based on evidence. So far as the finding of the appellate court is not perverse or shown to be not supported by evidence SA No.255/2003 8 this Court in Second Appeal cannot interfere with the finding of fact since no substantial question of law is involved in that regard. In the light of the above discussion I answer the substantial question of law raised in the above lines. Resultantly, the Second Appeal fail and it is dismissed. C.M.P.No.1019 of 2003 and I.A.No.104 of 2003 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.255/2003 9 Thomas P.Joseph, J. S.A.No.255 of 2003 JUDGMENT 2nd December, 2009.