Kerala High Court
Radhakrishna Pilla vs Chidambaran on 19 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
FRIDAY, THE 19TH DAY OF NOVEMBER 2021/28TH KARTHIKA, 1943
RSA NO.127 OF 2021
AGAINST THE JUDGMENT AND DECREE DTD.30.9.2020 IN
AS 65/2016 OF THE SUB COURT, CHERTHALA ARISING OUT OF THE
JUDGMENT AND DECREE DTD.29.2.2016 IN OS 307/2013 OF THE
PRINCIPAL MUNSIFF'S COURT, CHERTHALA
APPELLANTS/APPELLANTS/DEFENDANTS:
1 RADHAKRISHNA PILLA,
AGED 54 YEARS,
S/O.RAGHAVAN PILLA,
PUTHUVEETTIL, THEVARVATTOM MURI,
THYKKATTUSSERY VILLAGE, CHERTHALA,
ALAPPUZHA DISTRICT - 688 528.
2 MADHUSOODANAN PILLA,
AGED 49 YEARS,
S/O.RAGHAVAN PILLA, PUTHUVEETTIL,
THEVARVATTOM MURI, THYKKATTUSSERY VILLAGE,
CHERTHALA, ALAPPUZHA DISTRICT - 688 528.
BY ADVS.
SRI.J.OM PRAKASH
SRI.T.G.SUNIL (PRANAVAM)
SRI.ANTONY BENEDICT.C.X.
SRI.T.S.BHARATH KRISHNA
SRI.ADHEEP VIJAY
SRI.EMMANUAL SANJU
RESPONDENT/RESPONDENT/PLAINTIFF:
CHIDAMBARAN,
AGED 72 YEARS,
S/O.KRISHNAN,
PUTHUVEETTIL, THEVARVATTOM MURI,
MANAPPURAM.P.O., CHERTHALA,
ALAPPUZHA DISTRICT - 688 526.
BY ADVS.
SRI.B.PRAMOD
SMT.NAMITHA JYOTHISH
THIS REGULAR SECOND APPEAL HAVING COME UP FOR
ADMISSION ON 15.11.2021, THE COURT ON 19.11.2021
DELIVERED THE FOLLOWING:
R.S.A.No.127 of 2021
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JUDGMENT
This appeal is directed against the judgment and decree dated 30.09.2020 in A.S.No.65 of 2016 of the Sub Court, Cherthala (hereinafter referred to as 'the first appellate court') arising out of the judgment and decree dated 29.02.2016 in O.S.No.307 of 2013 on the file of the Principal Munsiff's Court, Cherthala (hereinafter referred to as 'the trial court').
2. The defendants are the appellants. The respondent, who is the plaintiff, filed the suit before the trial court seeking for a decree of permanent prohibitory injunction against the appellants/defendants restraining them from trespassing into the plaint schedule property or obstructing the peaceful enjoyment of the said property or constructing fence or compound wall on the boundaries of the property by the plaintiff. The trial court decreed the suit. The defendants preferred an appeal before the first R.S.A.No.127 of 2021 ..3..
appellate court. The first appellate court dismissed the appeal confirming the judgment and decree of the trial court. Hence this second appeal. The parties are hereinafter referred to as referred in the trial court unless otherwise stated.
3. The plaintiff is the owner of the plaint schedule property having an extent of 00.18 ares of land comprised in Sy.No.16/14A of Thaikkattussery Village in Cherthala Taluk by virtue of Ext.A1 sale deed No.2996/2012. According to the plaintiff, he had purchased the property for parking his autorickshaw. The plaintiff is residing on the south-western side of the plaint schedule property; whereas the defendants are residing on the south-eastern side of the plaint schedule property. It is pleaded specifically that the vendor of the plaint schedule property left 1 m. width pathway on the north-eastern side of the plaint schedule property for ingress and egress to the R.S.A.No.127 of 2021 ..4..
defendants' property. According to the plaintiff, when he stored materials for the construction of a compound wall, the defendants obstructed to construct the compound wall on the boundaries of the plaint schedule property.
4. The defendants filed written statement contending that the plaintiff's vendor K.M.Purushan had set apart a 1 m. width pathway on the northern and eastern side of the plaint schedule property. According to the defendants, they have been using the above 3 m. width pathway on east-south direction through the plaint schedule property. They claimed easement by prescription over the pathway.
5. During the trial of the case PWs.1 and 2 were examined and marked Exts.A1 to A4 on the side of the plaintiff. Exts.C1, C1(a), C2 and C2(a) were also marked. DWs.1 and 2 were examined on the side of the defendants.
R.S.A.No.127 of 2021
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6. Heard the learned counsel for the appellants.
7. In a suit for injunction the material question arise for consideration is as to whether the plaintiff has been in possession of the plaint schedule property on the date of suit and that the plaintiff has valid cause of action to institute the suit. To support the factum of possession PWs.1 and 2 were examined and marked Exts.A1 to A4. Exts.A1 to A4 would show that the plaintiff is the owner in possession of the property and he has been paying land tax to the Government by virtue of Ext.A3. The possession certificate issued by the competent authority would inter alia show that the plaintiff has been in possession of the property. The defendants are residing adjacent to the property and they are claiming right over the plaint schedule property by way of easement by prescription. The plea of easement by prescription is taken as a defence to prove that the defendants have right over the R.S.A.No.127 of 2021 ..6..
property of the plaintiff. Easement right is a precarious right claimed over the property of another person. In the case at hand, the defendants pleaded easement by prescription setting up an independent right of a way having a width of 3 m. on east-south direction through the plaint schedule property. It is the specific case of the defendants that they have been using the pathway in continuation of their predecessor-in-interest for the last 45 years, as of right, without any obstruction, peacefully, openly and as an easement. It is their case that even if the plaintiff had purchased the above property, the alleged purchase is subject to the right of easement of the defendants in the property.
8. In the plaint, the plaintiff admitted that the vendor of the plaint schedule property had set apart a pathway having a width of 1 m. on the northern and eastern side of the plaint schedule property for ingress R.S.A.No.127 of 2021 ..7..
and egress to the defendants' property. However, the defendants contended that they are currently using the pathway having 3 m. width through the plaint schedule property for the last 45 years.
9. An Advocate Commissioner was appointed. He visited the plaint schedule property on 30.5.2013. In Ext.C1, the commissioner noted a pathway through the plaint schedule property. However, the width is not stated. The pathway identified in Ext.C1 is not the pathway claimed by the defendants. According to the commissioner, the pathway starts from the public road which proceeds towards eastern direction and thereafter leads towards south. On going through Exts.C1 and C1(a), a pathway having a width of 3 m. on south-east direction through the entire plaint schedule property is not located by the commissioner. Subsequently, the plaintiff took out another commissioner with the help of a surveyor who R.S.A.No.127 of 2021 ..8..
prepared Exts.C2 and C2(a). The direction of the pathway identified by the commissioner and surveyor in Ext.C2(a) plan commences from the road and enters through the 1 m. width pathway set apart by the vendor of the plaint schedule property. Hence, the commissioner who prepared Ext.C2 plan also did not find any pathway as contended by the defendants in the written statement.
10. In this connection, it is pertinent to note that the entire width of the plaint schedule property is only 2.6 m. on the western side and 2.7 m. on the eastern side. The pathway claimed by the defendants is having a width of 3 m. through the plaint schedule property. In view of the above circumstances, both the trial court and the first appellate court concurrently held that the period of user, the nature of the pathway, the length and direction of the pathway are not in accordance with the contentions raised by the defendants.
R.S.A.No.127 of 2021
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11. The defendants are not claiming easement by grant over the disputed pathway. An easement over the lands of another, such as private way, must have a particular definite line, and, if the grant or reservation creating it does not specially fix its location, the location may be fixed by the parties. In the case on hand, the defendants have not claimed to fix location of the pathway.
12. The defendants claimed easement by prescription over the scheduled pathway. The trial court and the first appellate court concurrently entered a finding that conditions and stipulations under Section 15 of the Easement Act are lacking in this case. It is settled law that unless the period of 20 years has been completed, the right enjoyed by the claimant is an inchoate right which the court will protect. The commission report and the plan R.S.A.No.127 of 2021 ..10..
do not show the existence of the pathway as described by the defendants in their written statement. The pathway mentioned by the defendants as per the written statement is different from the one located by the commissioner. If the alignment is not definite, the appellants are not entitled to claim an inchoate right of easement as a defence.
13. One of the chief characteristics of the enjoyment necessary to give rise to a right of easement by prescription, is that it should be "as of right" or more explicitly that it should be exercised adversely with a claim of right thereto. The defendants claimed easement by prescription over the disputed pathway. However, the pathway claimed by them is not shown by the yardstick of preponderance of probability. It is the duty of the defendants to plead and prove the existence of such a pathway to non-suit the plaintiff. As noticed earlier, the R.S.A.No.127 of 2021 ..11..
defendants failed to prove that they have some right over the plaint schedule property where the plaintiff alleges possession on the date of suit. The plaintiff purchased a narrow strip of land. The defendants claimed easement by prescription over the plaint schedule property without taking into consideration the width and length of the property owned by the plaintiff. The essential requirements for the easement by prescription are that it should be actual, open, peaceful, uninterrupted enjoyment of easement for 20 years or 30 years as the case may be.
14. It has been settled that to constitute and create an easement by prescription, that it should be actual, open, peaceful, uninterrupted enjoyment as an easement. The pathway claimed is not established in evidence. The way admitted by the plaintiff is not the way pleaded and proved by the defendants. The commission report and plan do not show a definite alignment of pathway to claim R.S.A.No.127 of 2021 ..12..
easement by prescription over the plaint schedule property.
15. Where there is neither essential ingredients raised nor evidence let to establish the right of easement, mere user of the way for over prescribed period is not enough. Where there was no specific pleading with regard to the defendants having acquired the right of easement of passage by way of prescription and that no point of ingress and egress of the alleged passage was identified, it is not possible for the court to hold that the defendants have acquired the right of easement of passage through the land in dispute.
16. In the case at hand, the learned counsel for the appellants contended that it is the duty of the plaintiff to prove the possession of the property on the date of suit before court particularly when the plaintiff seeks an equitable remedy of injunction. According to the learned R.S.A.No.127 of 2021 ..13..
counsel for the appellants, the plaintiff has to succeed on the strength of his claim for injunction based on possession on the date of suit and not based on the weakness of the defendants to prove their case. Therefore, the learned counsel for the appellants contended that the plaintiff suppressed a way over the plaint schedule property and obtained a decree for permanent prohibitory injunction against the defendants. On going through the commission report and plan, it is clear that the plaint schedule property is identified and in respect of a property identified by the commissioner, the trial court granted a decree for permanent prohibitory injunction which was later confirmed by the first appellate court.
17. The trial court and the first appellate court meticulously analysed the entire evidence in detail and entered a finding that in Ext.C2 report, no pathway is R.S.A.No.127 of 2021 ..14..
located by the commissioner as contended by the defendants in the written statement and the pathway stated in Ext.C2(a) is only a beaten track.
18. The next question is as to whether the defendants have any other pathway for ingress and egress to their property. It is evident from the records that the defendants have road access through the eastern and southern side of their property. Ext.C2(a) plan is evident in this regard. The plaintiff further admitted that the vendor of the plaint schedule property left 1 m. width pathway on the northern and eastern boundary of the plaint schedule property for ingress and egress to the defendants and this pathway did not form part of the plaint schedule property. It is clear from the plaint that the plaintiff has no objection in using the aforesaid pathway as it is not part of the plaint schedule property. However, the defendants are not admitting the alleged R.S.A.No.127 of 2021 ..15..
pathway; whereas they are claiming a different pathway which has not been proved in evidence. The trial court considered Ext.C2(a) plan and passed a decree based on the alignment shown therein. In fact, the possession of the plaintiff over the plaint schedule property on the date of suit must be proved in evidence. Hence both the trial court and the first appellate court granted a decree for permanent prohibitory injunction in favour of the plaintiff.
19. Existence of a substantial question of law is an essential condition for invoking the jurisdiction of the High Court under Section 100 of the C.P.C. Going by the finding of the final court of fact confirming the judgment and decree of the trial court, this Court is of the view that the findings are not perverse. The trial court and the first appellate court analysed the question of possession based on the oral evidence of the parties, documents of title and the commission report and plan appended thereto. It is R.S.A.No.127 of 2021 ..16..
difficult to hold that the two courts below decided the question of possession ignoring or acting contrary to legal principles. The contention that the two courts below have wrongly cast the burden of proof on the defendants is also without any basis. The defendants are claiming easement by prescription over a pathway having 3 m. in respect of a narrow strip of land purchased by the plaintiff. Equitable principles lean in favour of the plaintiff. No substantial question of law arises in this case. Hence the appeal is liable to be dismissed.
In the result, the appeal is dismissed in limine. There will be no order as to costs. Pending applications, if any, stand closed.
Sd/-
N.ANIL KUMAR, JUDGE skj