Kerala High Court
Mrs.Vimala Amma vs Koomundakkal Maruthiyat ... on 16 October, 2007
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 767 of 2007()
1. MRS.VIMALA AMMA, D/O.KALYANI AMMA,
... Petitioner
Vs
1. KOOMUNDAKKAL MARUTHIYAT PRABHAVATHIAMMA
... Respondent
2. KOOMUNDAKKAL MARUTHIYAT RADHA AMMA,
3. AZHAKIL KUNHAMMAD, S/O.ABDULLA,
4. DO.BROTHER SIDDIQUE, S/O.ABDULLA,
5. MR.ABDURAHIMAN, S/O.KUNHAMMAD,
For Petitioner :SRI.C.VALSALAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :16/10/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
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R.S.A.No. 767 OF 2007
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DATED THIS THE 16th DAY OF OCTOBER, 2007
JUDGMENT
Plaintiff in O.S.138 of 2000 on the file of Munsiff- Magistrate Court, Perambra is the appellant. Defendants are respondents. Appellant instituted the suit seeking a decree for a declaration that appellant has every right to use plaint D schedule property as a pathway to plaint A schedule property and alternatively that she has a right to use plaint A schedule property as an easement of necessity as well as quasi-easement and a consequential injunction restraining respondents 3 to 5 from interfering with the peaceful enjoyment of plaint D schedule way or from changing its nature. Plaint A, B, C and D schedule properties admittedly originally belonged to the mother of appellant and respondents 1 and 2. Under Ext.A2 gift deed, mother gifted plaint A schedule property to appellant, plaint B schedule property to first respondent and C schedule property to second respondent. According to appellant, plaint D schedule property is a way leading to plaint A schedule property from the western road and it was kept common under Ext.A2 gift deed and the property gifted to respondents 1 and 2 are excluding the RSA 767/2007 2 D schedule way. It was contended that respondents 1 and 2 subsequently assigned their right over plaint D schedule property in favour of respondents 3 to 5 and they also did not derive any right or title to plaint D schedule property and appellant has a right to use plaint D schedule way to reach plaint A schedule property and respondents are not entitled to obstruct the same. Appellant claimed title to plaint D schedule property contending that it was kept common under Ext.A2 gift deed. She also alternatively claimed a right of easement by necessity. By subsequent amendment a right of way by quasi-easement was also claimed.
2. Respondents filed separate written statements. First respondent contended that no pathway was in existence as D schedule property and as per sale deed dated 31.8.1998, she assigned her right over plaint B schedule property in favour of respondents 3 and 4 and appellant has no right over D schedule property and he is not entitled to the decree for declaration or injunction sought for. Respondents 2 and 5 filed a joint written statement contending that the way to the house in the plaint A schedule property was from the road which is situated on the western side and also from the pathway on the northern side and RSA 767/2007 3 there was no way to plaint A schedule property from the east as claimed. It was contended that second respondent assigned her right over plaint C schedule property in favour of 5th respondent as per sale deed 1190 of 2000 and the pathway on the southern side of C schedule property was assigned and it was separately demarcated as a way. Property on the northern side of the pathway belongs to respondents and appellant has no right over the same. It was contended that appellant has no right over plaint D schedule property and is not entitled to the decree sought for.
3. Respondents 3 and 4 filed a separate written statement contending that there was no pathway as D schedule shown in the plaint at the time of assignment in favour of respondents 3 and 4 or thereafter. There was no dispute regarding existence of a way. It was contended that appellant has access available to plaint A schedule property is from the pathway on the northern side and the road on the western side and hence is not entitled to the decree sought for.
4. Learned Munsiff, on the evidence of PW1, DW1, Exts.A1 to A13 and Exts.C1 to C6, rejected the case of appellant that plaint D schedule property was kept common under Ext.A2 RSA 767/2007 4 gift deed. Learned Munsiff also found that the entire property which lies to the east of plaint A schedule property was gifted in favour of respondents 1 and 2 and no pathway was kept as common as claimed by appellant. It was further found that appellant is not entitled to a right of way through plaint D schedule property either as easement by prescription or necessity or quasi-easement. The suit was therefore dismissed. Appellant challenged the decree and judgment before Additional District Court, Vadakara in A.S.64 of 2004. Before the first appellate court, appellant filed an application under Order VI Rule 17 to amend the plaint incorporating the specific plea of right of way by quasi-easement. It was allowed by first appellate court. Learned Additional District Judge, on reappreciation of evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal.
5. Learned counsel appearing for appellant was heard. The argument of learned counsel is that as per the measurements of schedule B and C in Ext.A2 gift deed, D schedule property was left as common and therefore courts below should have found that plaint D schedule property was not gifted either to first respondent as B schedule or to second respondent as C schedule RSA 767/2007 5 and plaint D schedule property is the way to the family house in plaint A schedule property. It was argued that even if no right of easement by necessity will arise in view of the alternate way available on the north and west of plaint A schedule property, in view of the amendment of plaint whereunder a right of way by quasi-easement is claimed, courts below should have found that appellant has a quasi-easement right of way over plaint D schedule property. It was argued that the plea of quasi- easement was not there when trial court dismissed the suit and first appellate court rejected the case for the reason that appellant has claimed title to the property and is therefore not entitled to claim a quasi-easement right and when evidence establish that the house in the plaint A schedule property was more than 100 years old and the way to that house was towards the east plaint D schedule property should be the way and courts below should have found that plaint D schedule property was used as a way to plaint A schedule property even before Ext.A2 gift deed and therefore it is an apparent way which was continuously used and necessary for the enjoyment of plaint A schedule property and therefore appellant has a quasi-easement right and hence the decree and judgment passed by courts below RSA 767/2007 6 are to be set aside. It was also argued that neither trial court nor first appellate court entered a specific finding with regard to the title claimed by appellant to plaint D schedule property and in such circumstances, findings of courts below are unsustainable.
6. Ext.A2(copy of which was made available by appellant) establish that one common property belonging to the mother was gifted as three plots to three daughters. A schedule property was gifted to appellant, B schedule property to first respondent and C schedule property to second respondent. B and C schedule properties are lying north and south and A schedule property is to the west of B and C schedule properties. Though it was argued that plaint B and C schedule properties gifted to respondents 1 and 2, will not take in plaint D schedule way and it was kept common, a reading of Ext.A2 disprove the said submission. The northern boundary of plaint B schedule property which is the southern plot shows that the northern boundary is the plaint C schedule property. So also the southern boundary of C schedule property is plaint B schedule property. If in fact plaint D schedule property was kept as common for the usage of the donees, it would have been specifically mentioned in Ext.A2. Apart from non-mentioning of such a common way or RSA 767/2007 7 plot, Ext.A2 shows that the property gifted to second respondent is the property upto the northern boundary of plaint B schedule property which was gifted to first respondent. It does not show any property in between the boundaries of plaint B and C schedule properties. Learned Munsiff has specifically adverted to this aspect in paragraph 10 of the judgment and found that case of appellant that plaint D schedule property was kept common is not correct. Therefore the argument that there is no specific finding by courts below is not correct. When Ext.A2 does not show that any portion of the property was kept common and the boundaries of plot B and C schedule properties show that no property was kept common in between the said plots, finding of courts below that plaint D schedule property was not kept common is perfectly correct. If that be so, the claim of title to plaint D schedule property, as it was kept common under Ext.A2 gift deed cannot be accepted.
7. Then the only question is whether appellant has established any right of way through plaint D schedule property. As rightly found by courts below, the original pleading does not specifically show which right was claimed in the plaint except that alternatively a right of easement by necessity was claimed. RSA 767/2007 8 It is not disputed that to the north of the plaint A schedule property there is a way. So also to the west of plaint A schedule property there is a road. In such circumstances, the claim for right of way by easement of necessity was rightly rejected by courts below. The right of easement by prescription was not claimed and cannot be claimed as till the date of Ext.A1 gift deed of 1988, plaint D schedule property was part of the common property and after the splitting of the property under Ext.A2, appellant cannot claim a right of easement by prescription in a suit instituted in the year 2000.
8. The other right of way which could be claimed is a right of quasi-easement. Though there was no specific plea in the plaint, a right of quasi-easement was raised before learned Munsiff. Learned Munsiff elaborately considered that claim in paragraph 10 of the judgment. Relying on the text of Kathiar in law of easement and license, learned Munsiff found that in order to substantiate the right of quasi-easement, the way claimed should be apparent, continuous and necessary for the enjoyment of the tenament for which it is claimed and in the same stage in which it was enjoyed before severance from the tenament, on which their liability is thrown. Learned Munsiff on the evidence RSA 767/2007 9 found that if there was such an apparent way which was enjoyed and was necessary for the enjoyment at the time of splitting of the tenament, it would have been mentioned in Ext.A2. On the evidence it was found that there was no such apparent way available to plaint A schedule property through plaint D schedule property at the time of Ext.A1 and therefore the right of quasi- easement claimed by appellant is also not sustainable, when such a way was not necessary for the enjoyment of plaint A schedule property as a way is available on the north and west. Before the first appellate court appellant got amended the plaint raising a specific plea of quasi-easement, even though learned Munsiff considered that question elaborately. First appellate court also rejected the claim raised basing on quasi-easement. The argument of learned counsel is that first appellate court rejected the case solely on the basis that such a right cannot be claimed without recognising the right of respondents 1 and 2 the assignees of plaint D schedule property; As appellant claimed title to plaint D schedule property on the basis that it was kept common, the right cannot be claimed. It cannot be said that the finding of first appellate court that when appellant contended that she is the owner of plaint D schedule property, a right of RSA 767/2007 10 easement cannot be claimed over D schedule proeprty is not correct. Even otherwise on the evidence appellant did not establish that at the time of Ext.A3, plaint D schedule property was continuously used as an apparent way and that way was necessary for the enjoyment of plaint D schedule property which was absolutely necessary to establish a right of quasi-easement of way. In such circumstances, finding of courts below that appellant is not entitled to a right of way by quasi-easement is also correct. As no substantial question of law is involved in the appeal, it is dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGE lgk/-