Kerala High Court
Bathakka Kunhimariyam vs Bathakka Shameema on 4 October, 2012
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY, THE 4TH DAY OF OCTOBER 2012/12TH ASWINA 1934
SA.No. 771 of 1999 (A)
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AS.49/1996 of PRL.S.C.,THALASSERY
OS.40/1995 of MUNSIFFS COURT,KANNUR
APPELLANT/1ST RESPONDENT/PLAINTIFF:
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BATHAKKA KUNHIMARIYAM
AGED 73 YEARS, OCCUPATION NIL,
RESIDING AT PUZHATHI AMSOM,
KUNHIPALLY, KOTTALI, KANNUR DT. (DIED)
ADDL. A2 b. ABDUL SATHAR
S/O.BATHAKKA KUNHIARIYAM,AGED 54 YEARS,
RESIDING AT BATHAKKA, KOTTALI P.O, KANNUR DISTRICT
(ADDL.A2 IMPLEADED AS PER ORDER DT.21.3.2012 IN I.A 852/2012)
BY ADV. SRI.M.RAMESH CHANDER
RESPONDENTS/APPELLANTS AND 2ND RESPONDENT/DEFENDANTS:
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1. BATHAKKA SHAMEEMA, D/O. MUSTHAFA
AGED 23 YEARS, OCCUPATION NIL,
RESIDING AT PUZHATHI AMSOM, KUNHIPALLY, KOTTALI,
KANNUR DISTRICT.
2. BATHAKKA MUHASSINATH, W/O. MUSTHAFA,
AGED 43 YEARS, OCCUPATION NIL,
` RESIDING AT PUZHATHI AMSOM, KUNHIPALLY,
KOTTALI, KANNUR DISTRICT.
3. NOUFAL, S/O. ABDUL RAZAK
AGED27 YEARS, RESIDING AT PUZHATHI AMSOM,
KUNHIPALLY, KOTTALI, KANNUR DISTRICT.
R,R1-2 BY ADV. SRI.C.KHALID
R,R2 BY ADV. SRI.N.GOPINATHA PANICKER
R,R2 BY ADV. SRI.P.VISWAMBARAN
R,R2 BY ADV. SRI.R.O.MUHAMED SHEMEEM
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04-10-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K. VINOD CHANDRAN, J
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S.A No.771 of 1999
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Dated this the 4th day of October, 2012
J U D G M E N T
A daughter and her mother taking up cudgels against their own progenitor led to the filing of the suit before the lower court. The grandmother was the plaintiff. The first defendant was the plaintiff's granddaughter and the second defendant, her daughter. The 3rd defendant was the husband of the first defendant. The plaintiff, residing in the ancestral house adjacent to the residential building constructed by her daughter and son-in-law; was prevented from using a motorable way to the ancestral house, by the granddaughter and her husband. The plaintiff's daughter too joined in the obstruction. The plaintiff claimed easement of prescription. The suit was decreed and the judgment was reversed in first appeal. The plaintiff/grandmother is in Second Appeal before this Court. The plaintiff having died, her son has been impleaded. The respondents are the defendants before the court below.
2. The questions of law are re-framed as hereunder, with SA No.771/1999.
: 2 :consent of the counsels :
1.Whether the appellate court was correct in rejecting the claim for easement by prescription and holding that, if at all, the plaintiff can only have a claim of easement by necessity?
2.Was the appellate court correct in finding that the plaintiff having not sought for an easement through the property in which the ancestral house is situated, the plaintiff's claim has only to be rejected?
3.Whether the appellate court was correct in finding that there was an interruption to the right enjoyed by the plaintiff and that would dis-entitle the plaintiff from any relief as per Explanation II of Section 15 of the Indian Easements Act, 1882 (hereinafter referred to as 'the Act')?
4.Has the appellate court correctly appreciated the evidence and has it not relied upon irrelevant material as also failed to take note of relevant evidence in rejecting the claim of the plaintiff?
3. The plaintiff had 5 siblings and the property that SA No.771/1999.
: 3 :devolved upon them from their mother Bathaka Kunhipathu where partitioned by Ext.A1 deed of 13.2.1954. What was the subject of partition was the ancestral house and appurtenant land. The property was divided into six and each of the siblings took one share. The siblings separately obtained item numbers 1 to 6 in the Schedule to Ext.A1 in the order of their birth, i.e., the eldest getting item No.1, and so on and youngest getting item No.6. In sequence, the siblings were Ayissu, Kunhimariyam(plaintiff), Nafeesa, Abdulla, Kadeessa and Eassakutty. Towards the northern boundary, two properties numbered as 2 and 1 respectively lying on the west and east were obtained by Kunhimariyam(plaintiff) and Ayissu. On the southern boundary two items of properties No.3 and 4 lying respectively West and East went to Nafeesa and Abdulla. In the middle, the properties numbered as item Nos. 5 and 6 respectively on the West and East went to Kadeessa and Eassakutty. The ancestral house was situated in item No.5 and that was separately scheduled as item No.7. By Ext.A1 all the siblings retained their right on item No.7 i.e., the ancestral house.
4. Subsequently, in the year 1962 by Ext.A2, Ayissu, SA No.771/1999.
: 4 :Nafeesa and Eassakutty holding respectively item Nos. 1,3, and 6 released their rights over item No.7 in favour of the plaintiff. In 1968, by Ext.A3, Kadeessa too released her rights in favour of item No.7. In 1970 after Kadeessa's death, her daughter, sold the rights over item No.5 to the plaintiff. Ext.A4 was executed in the year 1974 and that pertained to the release of rights over item No.7 by Abdulla, again in favour of the plaintiff. Hence from 1962, the plaintiff as co- owner along with other siblings and from 1974 as absolute owner in possession held item No.7 ancestral property, which was situated in item No.5 which also was in her sole ownership and possession from 1970 onwards. The plaintiff claimed that she had been peacefully residing therein and had been using the B schedule pathway running West to East for ingress and egress into item No.7, ancestral house, scheduled as A in the plaint. Her claim was that the ancestral house, schedule A, was facing east and for more than 60 years herself and her family members as also the predecessors-in-interest were using plaint B schedule for ingress and egress into the house. Plaint B schedule lying within item No.6, provided access to the road lying to the East of the properties SA No.771/1999.
: 5 :partitioned by Ext.A1. The plaintiff examined herself as PW1 and her mother's sister's son as PW2. DW1 was the first defendant, DW2 the second defendant and DW3 the son of the plaintiff's sister Ayissu. A Commissioner was appointed and she after inspection twice; filed Ext.C1 & C3 reports and C2 & C4 sketches.
5. The trial court framed issues with respect to the prescriptive easement claimed on plaint B schedule, the obstruction said to have been caused in B schedule pathway, and as to whether the laterite stone steps in plaint B schedule was constructed after the institution of the suit. It is to be noticed that the plaint was initially filed claiming declaration as to the right of way through plaint B schedule lying in item No.6 of Ext.A1 and consequential injunction against the defendants from obstructing the use of plaint B schedule pathway. Subsequent to the institution of the suit, the plaintiff sought to amend the plaint alleging construction of three rows of laterite steps in B schedule property, as noticed by the Commissioner and seeking a mandatory injunction for restoration of B schedule pathway.
6. The defendants contested the suit alleging that SA No.771/1999.
: 6 :neither they nor the plaintiff or their predecessors-in-interest ever used plaint B schedule for ingress and egress into the ancestral house. The defendant also claimed an alternate way on the northern boundary leading to a pathway thereon. At the time of institution of the suit there were two roads on the East and North of the properties in Ext.A1. On the north was the Kottali road and on the east was Athazhakunnu road. These roads do not find a place in the boundary shown in Ext.A1.
7. The trial court found that looking into the documents produced, it can be safely inferred that it was the road on the eastern boundary that came into existence first. Ext.B1 dated 1.3.1973 shows the road on the eastern side but the road on the northern side was not evident from the boundaries of any of the documents dated prior to 1979 and produced in the suit. Ext.B3 building permission dated 30.11.1974 granted to the father of the first defendant, reveals the road on the east. On the north as per Ext.B1 there exists only a 'lane-pathway'. In such circumstances, it was inferred that it was the road on the east that came into existence first. The alleged alternate way on the northern boundary was found to be obstructed within SA No.771/1999.
: 7 :by the presence of trees, cow dunk pit, a shed and a washing stone. Considering the evidence of DW2, the daughter of the plaintiff who had been brought up in the ancestral house and was living there with her mother as a child and even after her marriage, the court below found that the plaint B schedule was being used by the family of the plaintiff for ingress and egress into A schedule house. Even, DW3's evidence was found to support the said contention. DW1's evidence was totally eschewed on the ground that she who had been studying abroad and then, residing at Thiruvananthapuram would not have known about the user of the pathway. PW2, a close relative of the plaintiff, also would support the case of the plaintiff. On the finding that there was continuous, uninterrupted and open use of plaint B schedule as a matter of right for more than 20 years, the declaration for prescriptive easement of right of way along plaint B schedule pathway was granted. The issue of the obstruction caused, with reference to Explanation II of Section 15 was found against the defendants. The court below found that by construction of three rows of laterite steps after the institution of the suit, the defendants had obstructed the pathway. Such laterite steps SA No.771/1999.
: 8 :having not been in existence earlier, the mandatory injunction sought for was also granted. The injunction against obstruction of user of the pathway, by defendants 1 to 3, was also granted.
8. The first appellate court reversed the said judgment. What weighed with the first appellate court was that A schedule was an ancestral house situated in item No.5 of Ext.A1. In Ext.A1 the ancestral house and the property in which it was situated was treated differently and scheduled separately as item No.7 and 5 respectively. Hence, courtyard of the ancestral house would be comprised in item No.5 and any access to the house is necessarily to be made through item No. 5. When an easementary right was sought for through B schedule, situated in item No. 6, the plaintiff did not seek for any right of way over item No.5 leading to the ancestral house. It was also found that after partition all the sharers could enter into the house through their respective holdings and hence there was no question of using B schedule pathway through item No.6. It was also found that from item No.5 there was an exit to the pathway on the northern side, which pathway was in existence at least from the year 1982. SA No.771/1999.
: 9 :The appellate court having found that there is no prescriptive right of easement which can be validly claimed by the plaintiff, went on to hold that the plaintiff if at all entitled; could only claim easement by necessity. That too was rejected on the finding that there is an alternate way and obviously there was no pleading to that effect. The court below also found that in the year 1982 the defendants had constructed a gate on the eastern end of plaint B schedule property and hence there is an obstruction caused which would lead to an interruption of the right to way claimed by the plaintiff; coming squarely within the mischief of Explanation II of Section 15 of the Act.
9. This Court sitting in the jurisdiction conferred under Section 100 of the Code of Civil Procedure is not expected to enter upon a rowing enquiry or endeavour a re-appreciation of the evidence. The learned counsel for the plaintiff, Smt. Shiji P.M, would contend that the evidence adduced would eminently demonstrate that the plaintiff and her predecessor- in-interest as also her siblings were using B schedule pathway to gain access to the ancestral house. The fact that the plaintiff gave the ancestral house and item No.5 property on which the house is situated, to her son created the enmity SA No.771/1999.
: 10 :which caused the defendants to obstruct B schedule pathway. The learned counsel for the defendants Sri Phijo Pradeesh Philip, per contra would point out that the reports of the Commissioner would reveal an alternate way through the northern boundary leading to a pucca road thereon. He would also contend that the first appellate court was perfectly correct in holding that the plaintiffs never had a prayer for easementary right over item No.5. The claim for such right over plaint B schedule pathway for access to the ancestral house cannot exist nor can be sustained, without a similar claim on item no.5 property. The respondents counsel would seek for a dismissal of the second appeal on the further ground of interruption caused to the right of way, if at all there was any entitlement; by the construction of the gate, from 1981.
10. Topography of the property partitioned in Ext.A1 and the lie of the different items is very important in the consideration of the above matter. Item No.5 in which the ancestral house, item No.7 is situated is land locked. It has on its northern boundary, Item No. 2 and on the southern boundary item No.3. Item No.6 is the eastern boundary and on SA No.771/1999.
: 11 :the west, admittedly, there are properties of 3rd parties. On the north eastern corner of item No. 6 is item No. 1 and on the south eastern corner is item No.4. From the west admittedly there is absolutely no way since it belongs to third parties. Ingress and egress, hence, is possible only from the north, south or east. Item No.7 ancestral house faces the east and is situated in item No.5 as noticed earlier. Though all the siblings retained their right over item No.7 ancestral house, by Ext.A1 partition deed the subsequent release deeds (Exts.A2 to A4) ensured the absolute ownership of the plaintiff. Item No.5 too in which item No.7 is situated was purchased by the plaintiff in the year 1970. Item No.2 was set apart to the share of the plaintiff herself as per Ext.A1. The finding of the first appellate court that each of the sharers could access the ancestral house through their respective properties is factually incorrect. The property on the northern, southern and eastern boundary of item No.5, i.e, item Nos.2 , 3 and 6 could only offer access to item No.7 residential house.
11. Ext.A2 is the release deed executed by Eassakutty, the owner of item No.6 in the year 1962. Going by the SA No.771/1999.
: 12 :evidence of DW2 herself in the year 1968, the taxi car owned by her husband used to come to the courtyard of the ancestral house over item no. 6 through the pathway, B schedule. Coupled with the fact of the existence of the road only on the eastern boundary, it is evident that plaint B schedule pathway lying west to east was used as ingress and egress into item No.5 as also to item No.7, ancestral house.
12. It can be safely inferred that even prior to the partition the ingress and egress into the property reaching the residential house was through plaint B schedule. Such a presumption is also permitted under Section 114 of the Evidence Act. After partition, all the sharers having equal rights over the house as co-owners were using the said pathway. The house faces east and the road was also to the east. Eassakutty, owner of item No.6 to the east, released his right in item No.6 in the year 1962. The evidence of DW2 itself would indicate that even after release of his right over item No.7 item No.6 has been used for ingress and egress into the ancestral house continuously, without stealth, without force and without express grant.
13. PW1 deposed according to the plaint averments. SA No.771/1999.
: 13 :PW2, her mother's sister's son, a close relative about 88 years of age deposed that to his knowledge, the ancestral house was approached through plaint B schedule. DW1 as was noticed by the trial court could not have deposed as to the exact user considering her young age. However, it is pertinent that DW1 also contended in her chief examination that the property in which her father had built a house and which was then owned and possessed by her; in which plaint B Schedule exists, reached up to the step of the ancestral house. This dispels the finding of the first appellate court that there was some extent of land between the ancestral house and the defendants property,through which the plaintiff had not claimed any right.
14. In this context it is also to be noticed that the plaintiff had purchased item No. 5. This was not disputed by the defendants. The appellants counsel points out that besides A1 to A4, the plaint shows the production of another document of 3.4.1970 which is the conveyance obtained by the plaintiff of item No.5 from one Ummallima; the daughter of Kadeessa. But the same is not marked in evidence. On an examination of the records, the document, is seen to have been produced, but SA No.771/1999.
: 14 :not marked. The learned counsel urges that this Court under Order 41 Rule 27 is entitled to receive on evidence any document if found necessary and in the interest of justice. However, this Court finds that this course is not expedient, since even going by Ext.A4, of the year 1974 by which Abdulla released his rights over the ancestral house, to the plaintiff, the boundaries shown are "the properties in your possession". The properties around the ancestral house is item No.5. The plaintiff need not have claimed any right of way over her own property. It is also the evidence of DW1 that there was no obstruction in using the plaint B schedule property to access her house and also the ancestral house through the gate constructed on the eastern side.
15. DW2's evidence also acquires much significance since she is the person who was born and brought up in the ancestral house. She had been living there from her childhood and even after her marriage. In crossexamination, she would categorically state that, earlier, there was only a lane on the northern boundary of the ancestral property and there was a road only on the eastern boundary. It was also brought out in crossexamination that in the year 1968, after SA No.771/1999.
: 15 :her marriage, her husband's vehicle used to be parked in the courtyard of the ancestral house, gaining access through plaint B schedule. DW3 also, in cross-examination, would state that vehicular access was provided to plaint A schedule house through plaint B schedule. It was this overwhelming evidence led on behalf of the plaintiff and also the defendants; establishing the right of way to the ancestral house, that was ignored by the first appellate court.
16. The learned counsel for the appellant would rely on Sankaran v. Balan Nair(2003(3)KLT 77 case No.105) to contend that existence of another pathway is not a ground to disallow the right of easement by prescription. Maniyan Krishnan v. Nanukuttan(1986 KLT 203) is put forward to show as to when an easement of prescription arises and what exactly are the requirements, or essential ingredients to sustain such a claim. The learned counsel would also rely on Suhara & Another v. Robert 7 Others(2012(1)KLJ 351) to contend that when, as in this case, it is shown that the disputed way was being used without permission for more than the statutory period, it is possible to draw inference of the user as of right.
SA No.771/1999.
: 16 :
17. Looking at the evidence it could be seen that the plaintiff and her predecessors in interest were using the plaint B schedule property to gain access into the ancestral house from time immemorial. Such user continued even after partition. Plaint B schedule after partition was within item No.6 which was set apart for one of the siblings; Eassakutty. Eassakutty released his right over A schedule ancestral house in 1962. It is evident from DW2 that in 1968 the plaint B schedule was used for ingress and egress into the ancestral house. Hence, at least from 1962, the user of plaint B schedule as a way to approach the ancestral house was not by force, nor stealth, nor licence(nec vi , nec clam nec precario); peaceful, open and as of right. The user was also continuous from 1962 and there was no obstruction to which the plaintiff submitted to or acquiesced. Easskutty is the predecessor in interest of the defendants. The plaintiff and the defendants have conflicting claims about the construction of the gate. In any event, the construction of the gate cannot be seen as an obstruction. It is the specific case of DW1 that plaint B schedule offers access to her house as also the plaintiffs house through the gate built on the eastern end of plaint B schedule. SA No.771/1999.
: 17 :
18. The construction of three rows of laterite stones on plaint B schedule obstructing vehicular traffic to the courtyard of plaint A schedule is after the filing of the suit as has been noticed by the Commissioner. There is no question of plaintiff claiming any right of way over item No.5 as the same belongs to her. On the strength of the discussions above this court is of the opinion that the lower appellate court was not justified in the facts of the above case in interfering with the well reasoned findings of the trial court. The questions of law framed as above are answered in favour of the appellant and against the defendant. The second appeal is allowed reversing the judgment of the first appellate court and restoring the judgment of the trial court.
Costs ordered throughout.
Sd/-
(K. VINOD CHANDRAN, JUDGE)
jma //true copy//
P.A to Judge