Kerala High Court
Francis Alias Porinchunny vs Teemol on 12 December, 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
WEDNESDAY, THE 12TH DAY OF DECEMBER 2012/21ST AGRAHAYANA 1934
RSA.No. 697 of 2010 (G)
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[AGAINST THE JUDGMENT AND DECREE DTD. 28/08/2009 IN
AS.NO.193/2006 OF PRINCIPAL SUB COURT,IRINJALAKUDA AND FROM THE
JUDGMENT AND DECREE DTD 30/08/2006 IN OS.NO.80/2003 OF
MUNSIFF'S COURT, CHALAKUDY]
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APPELLANT/APPELLANT IN AS.193/06/PLAINTIFF IN O.S. 80/2003:
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1. FRANCIS ALIAS PORINCHUNNY,
S/O.PULLAN VAREED, AGED 75 YEARS, PERAMBRA VILLAGE,
POTTA DESOM, MUKUNDAPURAM TALUK. *(DIED).
*ADDL. A2 TO A9 IMPLEADED:
2. MRS. LILLY FRANCIS, AGED 76 YEARS,
WIFE OF LATE FRANCIS, PERAMBRA VILLAGE,
POTTA DESOM, MUKUNDAPURAM TALUK,
TRICHUR DISTRICT - 680 722.
3. BABU PULLAN, AGED 52 YEARS,
S/O. LATE FRANCIS, PERAMBRA VILLAGE,
POTTA DESOM, MUKUNDAPURAM TALUK,
TRICHUR DISTRICT - 680 722.
4. JOSHA PULLAN, AGED 50 YEARS,
S/O. LATE FRANCIS, PERAMBRA VILLAGE,
POTTA DESOM, MUKUNDAPURAM TALUK,
TRICHUR DISTRICT - 680 722.
5. SHIBU FRANCIES, AGED 48 YEARS, S/O. LATE FRANCIS,
PERAMBRA VILLAGE, POTTA DESOM, MUKUNDAPURAM TALUK,
TRICHUR DISTRICT - 680 722.
6. SABU PULLAN, AGED 46 YEARS, S/O. LATE FRANCIS.,
RESIDING AT ELAMKULAM VILLAGE, KANAYANNUR TALUK,
ERNAKULAM DISTRICT - 682 017.
R.S.A. NO.697/2010-G:
7. NIMI FRANCIS, AGED 44 YEARS,
D/O. LATE FRANCIS, PERAMBRA VILLAGE,
POTTA DESOM, MUKUNDAPURAM TALUK,
TRICHUR DISTRICT.
8. JOBY PULLAN, AGED 42 YEARS,
S/O. LATE FRANCIS, PERAMBRA VILLAGE,
POTTA DESOM, MUKUNDAPURAM TALUK,
TRICHUR DISTRICT - 680 722.
9. RINI FRANCIS ALIAS REV. SR. RINAT, AGED 37 YEARS,
D/O. LATE FRANCIS, MARIAM THRESIA CONVENT,
KUZHIKKATTUSSERI,
NEAR KUNDAI HOSPITAL, TRICHUR DISTRICT - 680 697.
*ADDL. A2 TO A9 IMPLEADED BEING THE LEGAL HEIRS OF
DECEASED A1 AS PER ORDER DTD. 05/11/12 IN I.A. 2747/12.
BY ADV. SRI.JIMMY JOHN VELLANIKARAN.
RESPONDENTS/RESPONDENTS IN AS.193/06/DEFENDANTS IN O.S. 80/03:
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1. TEEMOL, AGED ABOUT 27 YEARS,
D/O.PULLAN THOMAS, KIZHAKECHALAKUDY VILLAGE &, DESOM,
MUKUNDAPURAM TALUK.
2. DEVASSYKUTTY, AGED ABOUT 66 YEARS,
S/O.MENACHERRY KOCHANTHONY, PERAMBRA VILLAGE,
POTTA DESOM, MUKUNDAPURAM TALUK.
3. BEENA, AGED ABOUT 39 YEARS,
W/O.MANJOORAN JOY, PERAMBRA VILLAGE, POTTA DESOM,
MUKUNDAPURAM TALUK.
4. ANTO, AGED ABOUT 39 YEARS,
S/O.MENACHERRY DEVASSYKUTTY, PERAMBRA VILLAGE,
POTTA DESOM, MUKUNDAPURAM TALUK.
R1 & R3 BY ADVS. SRI.P.N.RAMAKRISHNAN NAIR,
SRI.P.VISWANATHAN.
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 12-12-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Prv.
THOMAS P. JOSEPH, J.
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R.S.A. No. 697 of 2010
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Dated this the 12th day of December, 2012
JUDGMENT
The following are the substantial questions of law framed for a decision in this second appeal drawn from the judgment and decree of the Munsiff's Court, Chalakudy in O.S. No. 80 of 2003, confirmed by the Sub Court, Irinjalakuda in A.S. No. 193 of 2006:
1) In case where the plaintiff prays for easement by prescription over a pathway having five feet width and the court comes to the conclusion that the width is only one feet, is not the plaintiff entitled to get that one foot width pathway as an easement by prescription ? Can the court dismiss the suit merely because plaintiff has asked for five feet width way instead of one foot width way ? Is not the court bound to give relief so as to meet the ends of justice ?
2) Is it not legal to find that the use of a pathway is as of right and as an easement if the party has no other pathway for ingress and egress to his land and R.S.A. No. 697 of 2010 -: 2 :- the use is for more than 20 years without interruption and peacefully ?
3) Can the court non-suit the plaintiff on mere technicalities when facts and circumstances are strong enough to conclude the plaintiff's case of prescriptive easement over the defendant's property at least for one foot in width ?
4) In a case where defendants allege that the plaintiff has no way through their land but has a way through the land of another neighbour, is it legal to hold that the plaintiff is using that another's property unless that person is heard/examined ?
2. The appellant/plaintiff claimed title and possession of the plaint A schedule as per Will No. 6/1954. Property of the respondents is situate on the west of the plaint A schedule. It is alleged that the plaint A schedule and the property of the respondents were originally paddy fields reclaimed about 30 years before institution of the suit. Plaint B schedule is described as a way having width of 5 feet, originating from the Asramam road on the west, passing through the property of the respondents and reaching the plaint A schedule. It is claimed R.S.A. No. 697 of 2010 -: 3 :- that the plaint B schedule is the only access to the plaint A schedule. The appellant has also a contention that plaint A schedule and the property of the respondents originally belonged to one Chummar at one point of time (however, what was projected in the plaint is a claim of easement by prescription). The appellant wanted declaration of that right and prohibitory and mandatory injunction.
3. The respondents 1 to 3 denied that there is any such way as described in the plaint B schedule. The first respondent/first defendant got the property as per a gift and release deeds. There was no access to that property. Hence the first respondent purchased 3.081 cents and later entered into an agreement with the 3rd respondent for sale of the property. Property of one Jose is situated on the south of the plaint A schedule. That property reaches upto the panchayat road. Access to the plaint A schedule is through the property of the said Jose. Merely for the reason that some persons used to walk through the property of the respondent at a time when it was lying open no right of easement could be acquired.
4. The trial court found from the evidence of PW.1 and R.S.A. No. 697 of 2010 -: 4 :- Ext.C1, report of the Advocate Commissioner that the disputed plaint B schedule has a width of one foot. However, the claim of easement by prescription was negatived and consequently the suit was dismissed. That finding was confirmed by the first appellate court. Hence the second appeal.
5. The learned counsel for the appellant has contended that in view of Exts.B4 and X1 produced on the side of the respondents, the appellant is not pursuing his claim of easement by prescription over the plaint B schedule. It is however contended that though not stated specifically, the averments in the plaint disclose a claim of easement by necessity since in paragraph 2 of the plaint it is averred that the plaint A schedule and the property of the respondents originally belonged to the common ancestor, Chummar at one point of time and that except the plaint B schedule, there is no other means of access to the plaint A schedule. The learned counsel submits that the said plea was sufficient to alert the courts below about the claim of easement by necessity raised by the appellant and that claim ought to have been considered.
R.S.A. No. 697 of 2010 -: 5 :-
6. The learned counsel in the circumstances requested that in case this court is not inclined to uphold the plea of easement by necessity in this second appeal, the appellant may be given an opportunity to raise necessary plea in the plaint by amendment if necessary and adduce further evidence in support of the claim of easement by necessity.
7. The learned counsel for the respondents contended that a claim of easement by prescription and necessity cannot co-exist since it is mutually contradictory and destructive. According to the learned counsel, easement by necessity arises at the time of severance while easement by way of prescription is to be acquired by the user of the disputed way for the statutory period in the manner stated in Sec.15 of the Easements Act (for short "the Act"). It is pointed out by the learned counsel that though it may be open to the appellant to raise inconsistent pleas at least before the trial commenced it was necessary for him to confine his claim to either of the pleas and that having not been done by the appellant, he may not be permitted to seek relief based on the plea of easement by necessity.
8. Going by Exts.B4 and X1, it would appear that R.S.A. No. 697 of 2010 -: 6 :- respondents reclaimed their property only on 20.04.1985 or thereafter but the suit was instituted in the year 2003, meaning thereby that after reclaiming the property the appellant and his predecessor-in-interest had not used the disputed plaint B schedule for the statutory period to confer right of easement by prescription under Sec.15 of the Act. Obviously understanding the difficult the appellant has now withdrawn the plea of easement by prescription. No doubt, a plea of easement by necessity and prescription are mutually destructive. But it is not not as if inconsistent or even contradictory pleas could not be raised in the pleadings the appellant was required to confine his plea to one of such inconsistent pleas before the trial commenced. Unfortunately that has not happened in this case.
9. It is not as if there is no reference at all to the claim of easement by necessity in the plaint in that the appellant has pleaded that he has no other means of access to the plaint A schedule and that the plaint A schedule and the property of the respondents at one point of time belonged to a common ancestor.
10. Having regard to the facts and circumstances of the R.S.A. No. 697 of 2010 -: 7 :- case I am inclined to think that the appellant should be given an opportunity to amend the plaint if so advised and raise a claim of easement by necessity, but without making any observation as to whether the appellant is entitled to sustain a claim of easement by necessity even without an amendment. I make it clear that in case the plaint is amended, it will be open to the respondents to answer the amended plaint in the appropriate manner. In the above circumstances, it is not necessary to answer the substantial questions framed above.
Resultantly, the second appeal is allowed by way of remand as under:
1) Judgment and decree of the Munsiff's Court, Chalakudy in O.S. No. 80 of 2003 as confirmed by the Sub Court, Irinjalakuda in A.S. No. 73 of 2006 are set aside.
2) The submission made by the learned counsel for the appellant that the plea of easement by prescription is given up is accepted and recorded.
3) O.S. No. 80 of 2003 remitted to the Munsiff's Court, Chalakudy to enable the appellant to raise a plea of easement by necessity (as he now claims) and adduce further evidence in support of that claim alone. R.S.A. No. 697 of 2010 -: 8 :-
4) Needless to say that in case the plaint is amended, the respondents will get opportunity to file additional written statement in answer to the amended plaint.
5) Parties if required, shall given opportunity to adduce further evidence.
6) The trial court is directed to decide the question of easement by necessity if it arises from the pleadings and reach appropriate decision untrammelled by the observation if any, contained in this judgment.
7) Parties are directed to appear in the trial court on 15.01.2013.
Registry shall send the trial court records to the trial court forthwith.
Sd/-
THOMAS P.JOSEPH,
JUDGE
smv //True copy//
P.A. To Judge
R.S.A. No. 697 of 2010 -: 9 :-