IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 RSA.No. 1052 of 2007 ------------------------ AS.34/2004 of SUB COURT,KATTAPPANA OS.177/2002 of MUNSIFF COURT, PEERUMEDU .................... APPELLANTS/APPELLANTS/PLAINTIFFS -------------------------------------------- 1. RAJU @ SUBRAMANIAN, AGED 44 YEARS, S/O. PALANIAPPAN, RESIDING AT PAMBANAR KARA, PEERMADE TALUK, IDUKKI DISTRICT. 2. RAJAM, AGED 42 YEARS, W/O. SUBRAMANIAN, RESIDING AT PAMBANAR KARA, PEERMADE TALUK, IDUKKI DISTRICT. BY ADV. SRI.C.S.AJITH PRAKASH SRI.RAJAKRISHNAN. K RESPONDENTS: RESPONDENT/DEFENDANT ------------------------------------------------ CHIDAMBARAM TEA ESTATE, REPRESENTED BY ITS MANAGING PARTNER M.MUTHAIAH, PAMBANAR KARA, PEERMADE VILLAGE, PEERMADE TALUK, IDUKKI DISTRICT. BY ADV. SRI.V.CHITAMBARESH (SR. ADVICATE) SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J. ------------------------------------------------ R.S.A. No 1052 of 2007 ------------------------------------------------ Dated this the 2nd July 2008 JUDGMENT The appellants in this Regular Second Appeal are the plaintiffs in O.S. No 177 of 2002 on the file of the Munsiff's Court, Peermade and they challenge in this appeal the concurrent verdicts passed by the courts below dismissing their suit for declaration and injunction. Declaration sought for was in relation to a road through the estate of the respondent-defendant claiming prescriptive right of easement thereto. 2. The plaintiffs allege that they are in possession and enjoyment of the plaint schedule property having an extent of 8 cents together with building therein bearing door number III/323 of Peermade Panchayat and comprised in survey number 93/01 of Peermade village they having purchased the same from Sri Krishnamani under sale deed No 1213/96 on 28.03.1996. The said Krishnamani purchased plaint A schedule property from one Fernandez. Plaint B schedule property is a motorable road having a width of 10 to 15 feet which commences from K.K. Road and proceeds to the northern region to a length of about 580 feet. The said road which proceeds through the RSA 1052/07 2 property of the defendants reaches upto the Kurisumala estate bungalow. About two years prior to the institution of the suit, defendant constructed a gate at the entrance of plaint B schedule property where it starts from the K.K. Road and a watcher house also was constructed to man the said gate. At the time of putting up the gate plaintiffs were told that the gate was put up to prevent entry of cattles and strangers to the property of the defendant. The plaintiffs and their predecessor-in-interest have been in enjoyment of plaint B schedule property for vehicular traffic for ingress and egress from plaint A schedule property openly as an easement and as of right without any interruption for the last fifty years and have thereby acquired an easement right by prescription over plaint B schedule property. The defendant has no right to obstruct or cause hindrance to the traffic of the plaintiffs' using vehicles or by other means through plaint B schedule property. Though the plaintiffs were told that the watchmen would open the gate at any time to facilitate vehicular traffic, on 09.11.2002 when the second plaintiff fell ill, the first plaintiff brought a taxi from Pambanar and thereupon the watchman refused to open the gate to enable the first plaintiff to take the car to carry the second plaintiff to the hospital. The plaintiffs are RSA 1052/07 3 constrained to file the suit as the defendant is causing obstruction from 09.11.2002 to the vehicular traffic through plaint B schedule road though they have easement right over the said road by prescription. The plaintiffs therefore prayed for declaration of their right of easement by prescription over plaint B schedule road and for consequential injunction restraining the defendant from causing any obstruction for such vehicular traffic through plaint B schedule property. 3. The defendant resisted the suit filing written statement raising, inter alia, the following contentions:- It is false to say that plaintiffs and their predecessor-in-interest were using plaint B schedule road for vehicular traffic. Neither the plaintiffs nor their predecessor-in-interest have used the said road as a motorable road and as such they have not acquired any right of way by way of easement by prescription over plaint B schedule road. The gate and the watcher shed were in existence at the entrance to plaint B schedule property from K.K. Road for the last several decades and it is only that two years back the defendant renovated the gate pillars and watcher shed. It is incorrect to say that the gate was opened at any time on demand of the plaintiffs to facilitate vehicular traffic. RSA 1052/07 4 Plaint B schedule road is a private road belonging to the defendant for traffic into the estate of the defendant. Even if the plaintiffs or anyone else has used plaint B schedule road it was only with the permission of the defendant and as the plaintiffs or their predecessors-in-interest have never been in open, continuous and uninterrupted use of plaint B schedule as of right for vehicular traffic or traffic by other means and they have not acquired any right of easement by prescription. On the above contentions defendant prayed for dismissal of the suit with its costs. 4. On the above pleadings trial court raised necessary issues for trial and considering the evidence adduced at trial which consisted of oral evidence of P.Ws 1 to 3 and D.Ws 1 to 3 and documentary evidence, Exts. A1 to A12 as also C1 andC1(a) commission report and sketch, found that the plaintiffs are not entitled to any of the reliefs claimed and dismissed the suit with costs. Plaintiffs filed A.S. No 34 of 2004 assailing the said dismissal and by judgment dated 30.10.2006 the Sub Judge, Kattappana dismissed the said appeal concurring with the findings of the trial court against the appellants-plaintiffs and hence this Regular Second Appeal. RSA 1052/07 5 5. It is the case of the appellants that they have easement right by prescription over plaint B schedule road which runs through the estate of the defendant by open, continuous and uninterrupted user as of right. Exts A1 to A4 produced by the appellants are building tax receipts from 2000 onwards. Ext A5 is the certified copy of sale deed by which they obtained plaint A schedule property. Exts. A6 to A9 are receipts for payment of building tax by predecessor-in-interest of the plaintiffs, namely, Krishnamani for the building in plaint A schedule property. Ext A10 is a sketch of plaint B schedule road and Ext A11 is the medical certificate showing the admission of the second appellant in hospital on 09.11.2002. Ext A12 is the certificate issued by the Panchayat to the effect that the watcher shed constructed at the entrance into the estate by the side of K.K. road is not assigned any number. There is nothing in evidence to show that the watcher shed for a watcher at the entrance gate requires to be assigned with a door number. Over and above the documentary evidence appellants have examined P.Ws 1 to 3 of whom P.W.1 is the first appellant himself and the two taxi drivers are P.Ws 2 and 3. P.W.3 is the taxi driver who on the allegations in the plaint was obstructed and denied passage on 09.11.2002. The commission RSA 1052/07 6 report and sketch are Exts. C1 and C1(a). P.W.1 has given evidence almost in consonance with the allegations in the plaint. To establish his case that the watcher used to open the gate two taxi drivers P.Ws 2 and 3 were examined. P.W.2 is the taxi driver who used to take his car through B schedule road prior to the incident. According to him, respondent never obstructed taking of the vehicle trough plaint B schedule. P.W.3 has tendered evidence to the effect that he was obstructed on 09.11.2002 when the first appellant called his vehicle for taking his wife to the hospital. 6. As rightly stated by the first appellate court the question to be considered is as to whether there is sufficient evidence to prove right of easement by prescription as claimed by the appellants- plaintiffs. The respondent had examined the Managing Director of the Chidhambaram Estate as D.W.1 and the Field Officer and a Watcher as D.Ws 2 and 3. As rightly observed by the courts below, a perusal of the oral evidence as also the commissioner's report and sketch would show that plaint B schedule road is going through the Chidhambaram Estate and there exists a gate and a board at the entrance suggestive of the fact that the road is a private road and is not a thoroughfare and is kept under lock and key. The existence of RSA 1052/07 7 gate with lock and key and watcher at the entrance is not in dispute. According to the appellants, the watcher used to open the gate for their ingress and egress and there was no obstruction till 09.11.2002 and the appellants and their predecessors-in-interest were using the said road for their ingress and egress continuously, openly and uninterruptedly for more than fifty years. 7. The appellants have purchased the property under Ext A5 only in the year 1996. Prior to the said purchase they were employees of Chidhambaram Estate, namely the defendant estate and were residing in a line building inside the estate. The use of the road by the appellants as of right was obviously not there upto the date of Ext A5. Till then they were only in permissive use of plaint B schedule road as employees in the estate. The evidence of P.W.1 and D.Ws 1 to 3 would show that plaint B schedule road was constructed for going to the bungalow situated in Kurissumudi division of the defendant estate and according to D.Ws 1 and 2 there existed a gate at the entrance even prior to the year 2000. According to D.Ws 1 to 3 the watcher shed and gate were renovated and an iron gate was fixed two years back. The appellants have not adduced any evidence to show that their predecessors had even RSA 1052/07 8 used the plaint schedule road as their road for ingress and egress openly and uninterruptedly as of right so as to tag on the said user along with the user of the appellants-plaintiffs from 1996 onwards. Exts. A6 to A9 building tax extracts from 1983 to 1994 would at best go to show only that one Krishnamani the executant of Ext A5 was residing in the building in plaint A schedule during that period. That does not mean that Krishnamani was using plaint B schedule road for ingress and egress. Though P.W.1 admitted that his predecessor-in-interest Krishnamani is alive and available for examination he was not cited or examined as a witness and the predecessor of Krishnamani, Sri Fernandez was also not cited and examined. Consequently, therefore to establish the right of easement by prescription there is only the self-serving testimony of P.W.1. Exts. C-1 and C-1(a) commission report and sketch only support the contention of the respondent that plaint B schedule road is a private road and it can be used by others only on permission. As observed by the courts below even after fixing of gate and providing lock and engaging watcher so as to restrict the entry at least in 2000 the appellants had not objected to it for a period of two years and the suit was filed only in 2002. The courts below have RSA 1052/07 9 properly appreciated the evidence and have come to the irresistible conclusion that plaint B schedule road is a private road through the defendant's estate and the appellants have not succeeded in establishing right of way by prescription over the said road as claimed by them. There is absolutely no merit in this appeal and there is no question of law and much less any substantial question of law arising for consideration in this Regular Second Appeal. In the result, this Regular Second Appeal is dismissed in limini refusing admission. Sd/- K.P. BALACHANDRAN Judge 02/07/2008 en [true copy]