Kerala High Court
Lolamma vs Santha on 26 March, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
MONDAY, THE 26TH DAY OF MARCH 2012/6TH CHAITHRA 1934
RSA.No. 348 of 2005 ( )
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AS.113/1998 of I ADDL.DISTRICT COURT., TRIVANDRUM
OS.950/1993 of I ADDL.MUNSIFF COURT,TRIVANDRUM
APPELLANTS/RESPONDENTS 1 TO 4/DEFENDANTS 1 TO 4:
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1. LOLAMMA, W/O.GOPINATHAN NAIR,
RESIDING AT ANIL NIVAS, THIRUVALLAM, TRIVANDRUM.
2. GOPINATHAN NAIR, RESIDING AT
ANIL NIVAS, THIRUVALLOM, TRIVANDRUM
(DIED ON 7.9.1998).
3. SUNIL KUMAR, S/O.GOPINATHAN NAIR,
RESIDING AT ANIL NIVAS, THIRUVALLAM, TRIVANDRUM.
4. AJITH KUMAR, S/O.GOPINATHAN NAIR,
RESIDING AT ANIL NIVAS, THIRUVALLAM, TRIVANDRUM.
BY ADVS.SRI.R.S.KALKURA
SRI.M.S.KALESH
SRI.HARISH GOPINATH
SRI.V.VINAY MENON
SMT.KVP.JAYALEKSHMY
SRI.M.AJAY (IRUMPANAM)
RESPONDENT/APPELLANT/PLAINTIFF & 5TH RESPONDENT/5TH DEFENDANT:
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1. SANTHA, RESIDING AT SHEEJA COTTAGE,
VENKARA, THIRUVALLOM, THIRUVANANTHAPURAM.
2. SASIDHARAN NAIR,
S/O.CHELLAPPAN, RESIDING AT KEEZHE KALLARA, VEEDU
TP.NO.1/397, THIRUVALLAM, TRIVANDRUM.
BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR
BY ADV. SRI.SERGI JOSEPH THOMAS
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-03-2012,
ALONG WITH RSA. 349/2005, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
THOMAS P. JOSEPH, J.
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R.S.A.Nos.348 and 349 of 2005
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Dated this 26th day of March, 2012
JUDGMENT
These second appeals arise from the judgment and decree of learned Munsiff, Thiruvananthapuram in O.S.Nos.950 and 1018 of 1993 and A.S.Nos.113 and 160 of 1998 arising therefrom, disposed of by the learned District Judge, Thiruvananthapuram by a common judgment. Parties are referred as plaintiff and defendants as in O.S.No.1018 of 1993 in which evidence was recorded.
2. First defendant in O.S.No.1018 of 1993 filed O.S.No.950 of 1993 for a decree for prohibitory injunction. First defendant in O.S.No.950 of 1993 filed O.S.No.1018 of 1993 initially for a decree for prohibitory injunction against putting up a bunk in plaint A schedule mentioned therein, described as the half cent situated north and south of the disputed way. Plaint A schedule in O.S.No.1018 of 1993 is the property belonging to the plaintiff. Plaintiff in O.S.No.1018 of 1993 claimed that she acquired plaint A schedule therein as per Ext.A1, partition deed No.1541 of 1975. Plaint B schedule is situated on the east of plaint A schedule and according to the plaintiff, situated on either R.S.A.Nos.348 and 349 of 2005 -: 2 :- side of the way leading to plaint A schedule and the National Highway on the further east. Plaintiff alleged that herself and family are residing in the plaint schedule and using the said way for the last 30 years. First defendant in O.S.No.1018 of 1993 attempted to construct building on the northern portion of plaint B schedule way without getting permission from the local authority (second defendant in O.S.No.1018 of 1993). Hence the suit.
3. First defendant in O.S.No.1018 of 1993 (plaintiff in O.S.No.950 of 1993) filed written statement and counter claim. She contended that she purchased two cents on the east of the property of plaintiff (which remained after acquisition by the State Government) as per Ext.B2, assignment deed executed by Vasantha Kumari. Plaintiff constructed compound wall on the west of the said two cents trespassing into a portion of it. Plaintiff filed the suit after demolishing a portion of the compound wall to create a new pathway. In the circumstance first defendant filed O.S.No.950 of 1993. First defendant contended that there is no pathway through the two cents belonging to her as per Ext.B2 and prayed for a decree for prohibitory injunction in the counter claim. R.S.A.Nos.348 and 349 of 2005 -: 3 :-
4. Answering the counter claim, plaintiff filed replication where she contended that there is a pathway having width of 1< meters and length of 3 meters through B schedule in O.S.No.1018 of 1993 in existence for the last 35 years for ingress and egress from plaint A schedule and that they are using the said way for more than 35 years uninterruptedly and with hostile to the interest to the first defendant and her predecessors-in- interest. Hence defendant lost title by continuous and uninterrupted use of the said way by the plaintiff for more than 35 years and plaintiff acquired title over it by easement by prescription.
5. Plaintiff amended the plaint in O.S.No.1018 of 1993 after first defendant raised the counter claim to incorporate a prayer for declaration of right of easement over the disputed way and schedule the disputed pathway as C schedule in the plaint.
6. In O.S.No.950 of 1993 also, parties have raised similar contentions as above stated.
7. Trial court found that so far as O.S.No.950 of 1993 is concerned, right claimed by the first defendant in O.S.No.1018 of 1993 (plaintiff in O.S.No.950 of 1993) is not properly established and hence she is not entitled to the decree for prohibitory R.S.A.Nos.348 and 349 of 2005 -: 4 :- injunction. O.S.No.950 of 1993 was dismissed. Turning to O.S.No.1018 of 1993, trial court held that plaintiff has no consistent case as to the claim of easement, not to say about lack of sufficient plea in the plaint regarding the requirements to sustain a claim of easement by prescription. Trial court found fault with the plaintiff for not examining the neighbouring dwellers to prove the alleged user of the disputed way. O.S.No.1018 of 1993 was dismissed. The counter claim in that suit was also dismissed.
8. Aggrieved, both sides preferred appeals. First defendant (plaintiff in O.S.No.950 of 1993) challenged the dismissal of O.S.No.950 of 1993 in A.S.No.113 of 1998 and plaintiff in O.S.No.1018 of 1993 took up the challenge against dismissal of that suit in A.S.No.160 of 1998. The dismissal of the counter claim was challenged in A.S.No.114 of 1998. First appellate court on a consideration of the evidence concurred with the trial court so far as findings in O.S.No.1018 of 1993 is concerned and dismissed A.S.No.160 of 1998. In A.S.No.113 of 1998, first appellate court reversed the finding of trial court as regards ABCDEFG plot in Ext.C3, plan, found that the said portion belongs to and is in the possession of the first defendant R.S.A.Nos.348 and 349 of 2005 -: 5 :- (in O.S.No.950 of 1993) and she was granted a declaration and prohibitory injunction concerning that property. Since A.S.No.113 of 1998 was allowed and O.S.No.950 of 1993 was allowed in part, dismissal of the counter claim in O.S.No.1018 of 1993 was not interfered with and hence A.S.No.114 of 1998 was dismissed. Common judgment and decree of learned District Judge in A.S.Nos.113 of 1998 and 160 of 1998 are under challenge in these appeals at the instance of plaintiff in O.S.No.1018 of 1993 and defendants in O.S.No.950 of 1993.
9. The following substantial questions of law are framed for a decision in these appeals:
R.S.A.Nos.348 of 2005
(i) Is the first appellate court justified in declaring title over the property of defendant ignoring the easement of passage?
(ii) Is the court below justified in declining the claim of easement of passage ignoring the claim of adverse possession and limitation?
(iii) Whether title can be declared by the court below in the absence of exclusive possession in a claim of adverse possession?
(iv) Whether admission of possession as well as easementary rights of passage can be ignored by the court below?
(v) Whether declaration and injunction can be R.S.A.Nos.348 and 349 of 2005 -: 6 :- granted by the first appellate court in the absence of exclusive possession ignoring the claim of adverse possession?
(vi) Whether first appellate court can declare title of the property without proving title, possession and identification of property?
(vii) Is the first appellate court justified in granting a mandatory injunction without proper identification of property and declaration without documents of title and change of description of boundary and survey number?
R.S.A.Nos.349 of 2005
(i) Is the first appellate court justified in declaring title over the property of defendant ignoring the easement of passage?
(ii) Is the court below justified in declining the claim of easement of passage ignoring the claim of adverse possession and limitation?
(iii) Whether title can be declared by the court below in the absence of exclusive possession in a claim of adverse possession?
(iv) Whether admission of possession as well as easementary rights of passage can be ignored by the court below?
(v) Whether declaration and injunction can be granted by the first appellate court in the absence of exclusive possession ignoring the claim of adverse possession?
R.S.A.Nos.348 and 349 of 2005 -: 7 :-
10. It is contended by the learned counsel for plaintiff in O.S.No.1018 of 1993 and defendants in O.S.No.950 of 1993 that the finding entered by the trial and first appellate courts as to the claim of easement made by the plaintiff in O.S.No.1018 of 1993 is not correct. It is contended by the learned counsel that relevant materials were not taken into account and that appreciation of evidence is perverse. So far as O.S.No.950 of 1993 is concerned, learned counsel would contend that the first appellate court was not correct in reversing judgment and decree of the trial court dismissing that suit. It is contended that title and possession of the first defendant (plaintiff in O.S.No.950 of 1993) is not established.
11. Learned counsel for the first defendant in O.S.No.1018 of 1993 (plaintiff in O.S.No.950 of 1993) would contend that plaintiff in O.S.No.1018 of 1993 (defendant in O.S.No.950 of 1993) has no consistent case as to the (alleged) existence of pathway and its user, not to say that there is lack of plea in the plaint in O.S.No.1018 of 1993 regarding the claim of easement by prescription. According to the learned counsel, plaintiff in O.S.No.1018 of 1993 while seeking for a declaration of easement by prescription even went to the extent of denying R.S.A.Nos.348 and 349 of 2005 -: 8 :- the title of first defendant (plaintiff in O.S.No.950 of 1993) as revealed by the grounds urged in the memorandum of second appeal and the substantial questions of law framed. Learned counsel places reliance on the decision in Badariya Madrassa Committee Vs. Antony Robert (2006(2) KLT 636) to alert this Court as to the necessity for proper and specific pleadings when a claim of easement by prescription is raised being a precarious right claimed over the property of another.
12. The decision relied on by the learned counsel and other authorities on the point inform me that easement by prescription being a precarious right and a restriction on the proprietary right of the owner of property, that right has to be specifically pleaded and proved. In O.S.No.1018 of 1993 averments in the plaint do not at all give rise to a claim of easement by prescription. May be, initially the relief prayed for in O.S.No.1018 of 1993 was only for a decree for prohibitory injunction to restrain the first defendant (plaintiff in O.S.No.950 of 1993) putting up bunks on either side of the disputed way (which is referred to in plaint A schedule also). Then also, it was necessary to plead and prove the right claimed over the disputed way. Though the plaint was later amended, relevant and R.S.A.Nos.348 and 349 of 2005 -: 9 :- necessary pleas are not incorporated except a prayer for declaration of easement by prescription and incorporating the disputed way as plaint C schedule. Hence, trial and first appellate courts are justified in finding that there is no sufficient plea so far as plaint averments in O.S.No.1018 of 1993 is concerned so as to base a claim for easement by prescription.
13. Learned counsel for plaintiff in O.S.No.1018 of 1993 (defendants in O.S.No.950 of 1993) has invited my attention to the replication filed in answer to the counter claim. In the replication in O.S.No.1018 of 1993, plaintiff stated in paragraph 3 that there is a pathway of about 1< meter width and 3 meter length in existence for the last more than 35 years for ingress and egress of the plaintiff and her family members to the main road on the eastern side through the property of defendant continuously, uninterruptedly and hostile to the interest of defendant and her predecessors-in-interest, defendant lost title by the continuous and uninterrupted user by the plaintiff for the last more than 35 years and that plaintiff acquired title over it by easement by prescription. I am inclined to think that the above also does not satisfy the requirement of Sec.15 of the Easements Act (for short, "the Act").
R.S.A.Nos.348 and 349 of 2005 -: 10 :-
14. So far as evidence is concerned, Ext.C1 is the first report prepared by CW1, the Advocate Commissioner. He stated that there is an old compound wall in between the properties of first defendant and plaintiff (in O.S.No.1018 of 1993) but he has not assessed the oldness of the compound wall. He found a gate towards west of the disputed way (on the compound wall of plaintiff) but, unfortunately the oldness of that gate is also not assessed. Defendant has a case that an old gate was recently installed after demolishing that part of the wall to show the existence of a way. CW1 says that on the side of the disputed way (referred to as B schedule in O.S.No.1018 of 1993) he found a wall which is 2-3 days old. The pillars of the gate has the same oldness of the wall but, it is not clear from the evidence of CW1 as to what he was referring to, whether pillars of the gate had the oldness of the wall on the side of the disputed way (oldness of which was 2-3 days) or oldness of the wall in between the property of the first defendant and plaintiff in O.S.No.1018 of 1993.
15. CW2 is another Advocate Commissioner who prepared Ext.C3, report and plan. There also, Commissioner has not assessed oldness of the wall though, he claimed in evidence that R.S.A.Nos.348 and 349 of 2005 -: 11 :- the wall may be about 20 years old. A further fact revealed from the evidence of CW2 is that the wall on the west of property of first defendant in O.S.No.1018 of 1993 (plaintiff in O.S.No.950 of 1993) was found white washed recently. It is therefore not clear, what exactly was the oldness of the wall in between the property of the parties. CW2 stated that wall at the triangular portion (appears to be ABG in Ext.C3, plan) was constructed recently as portion of the wall had collapsed (as told by the plaintiff and attestors of the mahazar).
16. Evidence regarding alleged user of the disputed way is given by PW1, brother of plaintiff in O.S.No.1018 of 1993 (first defendant in O.S.No.950 of 1993). True that he stated that plaintiff and the family were using the disputed way for long. According to PW1, the wall in between the properties of plaintiff and first defendant is about 30 years old, plaintiff and family are residing in the plaint A schedule in O.S.No.1018 of 1993 since the last 30 years and they are using the disputed way since the last 30 years. But, it is relevant to note that in the affidavit in support of the application for amendment of plaint in O.S.No.1018 of 1993, in paragraph 6, alleged user of the disputed way is stated as for 25 years. Again in the replication in R.S.A.Nos.348 and 349 of 2005 -: 12 :- O.S.No.1018 of 1993 the period of user stated is 35 years. Thus evidence of PW1, averments in the plaint in O.S.No.1018 of 1993, affidavit in support of the application for amendment and the replication are not consistent as to the length of user. In this connection, it is relevant to note the statement of CW2 that the oldness of the compound wall in between the properties of the parties, according to him is about 20 years and CW1 states the oldness of the wall on the side of the disputed pathway as 2-3 days old.
17. Regarding the nature of right that plaintiff claims also, there appears to be no clear idea for the plaintiff. I referred to the pleadings in the plaint and replication and stated that when the pleadings in the plaint in O.S.No.1018 of 1993 is not at all sufficient, averments in the replication, it would appear, are to the effect that plaintiff in O.S.No.1018 of 1993 got right by adverse possession.
18. It is relevant to note that in the memorandum of second appeal it is contended that first defendant O.S.No.1018 of 1993 (plaintiff in O.S.No.950 of 1993) has not acquired title over the property since her predecessor-in-interest (Vasantha Kumari who executed Ext.B2 in favour of the first defendant) had no title R.S.A.Nos.348 and 349 of 2005 -: 13 :- over the property. It is stated that on enquiry, plaintiff learned that Vasantha Kumari, predecessor-in-interest of the first defendant had only 10 cents of property in her possession and that the property which she got as per partition deed No.633 of 1971 was acquired by the State Government for widening the National Highway. The plea raised is that after such acquisition Vasantha Kumari had no title or possession over any property to be conveyed to the first defendant as per Ext.B2. It is also interesting to note that one of the substantial questions of law framed for a decision is whether courts below were justified in declining the claim of easement ignoring the claim of the plaintiff in O.S.No.1018 of 1993 regarding adverse possession and limitation. Plaintiff in O.S.No.1018 of 1993 (first defendant in O.S.No.950 of 1993) could not have set up a plea of easement by prescription and at the same time that the defendant in O.S.No.1018 of 1993 (plaintiff in O.S.No.950 of 1993) had no title over the property. Nor could she set up easement by prescription and title by adverse possession together and proceeded with such inconsistent pleas. I am inclined to think that plaintiff in O.S.No.1018 of 1993 has no clear idea of what right she is making over the disputed way.
R.S.A.Nos.348 and 349 of 2005 -: 14 :-
19. Courts below also noticed that so far as alleged user of the disputed way is concerned, what is available is only the evidence of PW1 and none of the neighbours are examined to speak about that. Though existence or otherwise of an alternative pathway is irrelevant in a case of easement by prescription, it is in evidence that there is a lane on the northern side of plaint B schedule in O.S.No.1018 of 1993. That lane goes towards further west along the northern side of plaint A schedule in O.S.No.1018 of 1993. The northern boundary description of plaint A schedule in O.S.No.1018 of 1993 bears testimony for that. That apart, the Advocate Commissioner also hasd noticed a lane on the north of property of first defendant and in continuation of that, on the north of property of plaintiff. No doubt, plaintiff has a case that it is a water channel and hence not usable. In Ext.C3, Advocate Commissioner mentioned that there is a lane (with thodu) on the northern side and in Ext.C3, at page 7, Advocate Commissioner stated that there is only one way to the plaint A schedule (ie. plaint C schedule in O.S.No.1018 of 1993). But, PW1 examined on the side of plaintiff did not dispute that there is a lane on the northern side of the suit property. R.S.A.Nos.348 and 349 of 2005 -: 15 :-
20. So far as decree granted in favour of the first defendant (in O.S.No.950 of 1993) is concerned, it is based on Ext.C3, plan prepared by the Taluk Surveyor. The Taluk Surveyor after measurement of the property with reference to Ext.B2 has found that the property, less the property acquired by the State Government available to the first defendant (plaintiff in O.S.No.950 of 1993) is ABCDEFG plot. It is regarding that plot that first appellate court has granted declaration and prohibitory injunction in favour of the first defendant (plaintiff in O.S.No.950 of 1993).
21. The decision of the first appellate court is based on the pleadings, lack of evidence, and the law on the point. It needs no interference.
22. The substantial questions of law framed are answered as above.
The second appeals fail and are dismissed. No costs.
Sd/-
(THOMAS P. JOSEPH, JUDGE) Sbna/-
/True Copy/ P.A to Judge