Kerala High Court
B.Shama Bhatta vs Basthian D'Souza on 23 October, 2007
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 933 of 1994()
1. B.SHAMA BHATTA
... Petitioner
Vs
1. BASTHIAN D'SOUZA
... Respondent
For Petitioner :SRI.K.G.GOURI SANKAR RAI
For Respondent :SRI.N.L.KRISHNAMOORTHY
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :23/10/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
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S.A. No. 933 OF 1994
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Dated this the 23rdday of October, 2007
J U D G M E N T
Plaintiff in O.S. 312/1985 before Munsiff court, Kasaragod, is the first appellant. Defendants are the respondents. On the death of the first appellant, additional appellants 2 to 5 his legal heirs, were impleaded. First appellant instituted the suit seeking a decree for mandatory injunction and for a direction to first respondent to restore the pathway "P" as marked in the eye sketch appended to the plaint and lying on the eastern side of the Nettigudde comprised in R.S No.579/5B of Paivalike Village, leading to his house in R.S. No.604/2A. On the eye sketch the pathway, which starts from the southern Paivalike-Ambikana Road and runs towards the north and reaches the plaint scheduled property in Survey No.579/5B and further runs towards the north and reaches the house of the appellant in R.S. No.604/2A was marked. It was contended that plaint scheduled property as well as the property of first appellant originally SA No.933/94 Page numbers belonged to his family which was divided as per the partition in 1897 and subsequently as per the partition in 1995 property where his residential house is situated, was allotted to first appellant. He also claimed that the pathway "P" marked in the eye sketch is having a width of about four feet and he and his predecessors have been using that pathway openly, peacefully and without interruption as of right and as an easement for the last more than 100 years and therefore he has prescribed a right of way by easement of prescription. It was contended that on 10.9.1985 first respondent caused obstruction to the pathway and he has no right to do so and the obstruction is to be removed by a mandatory injunction. Second defendant was impleaded only as the sharer of the property through which the remaining portion of the pathway "P" runs further to the south of the property of the first respondent. Subsequently, plaint was amended claiming a declaration of right of way by easement of prescription over pathway `P' as shown in the eye sketch produced along with the plaint. Third defendant/3rd respondent was later impleaded. First respondent resist the suit. According SA No.933/94 Page numbers to him no pathway as marked `P' in the eye sketch does exist and appellant has no right of way through the eastern boundary of his property in R.S. No.579/5B. It was also contended that the said property is not known as Naettigadde but Gulikolanji. It was contended that as there is no way through R.S. No.579/5B, which belongs to the first respondent, the appellant is not entitled to the decree sought for. It was also contended that appellant has two other pathways, one which passes through his areca garden in R.S. 604/3 and reaches Paivalike-Ambikana Road, which is a mamool road, and another leading from his house to Paivalike. The suit was filed suppressing existence of those pathways. It was further contended that when there are two other ways available to the appellant, he is not entitled to claim a way through the property of the first respondent. It was also contended paddy filed in R.S.579/5B was later converted into areca garden. But it was contended that the conversion started about 25 years back and was done at stages and not before the filing of the suit, as claimed. The learned Munsiff on the evidence of PWs 1 to 4, DW1, Exts. A1 to A3, B1 to B2 and SA No.933/94 Page numbers C1 to C4 granted a decree declaring right of way by easement of prescription over the pathway `P' as marked in Ext.C3 plan as well as in the eye sketch produced and directed first respondent to restore the pathway removing the obstruction caused by a mandatory injunction. Learned Munsiff on the evidence found that pathway `P' as marked in the eye sketch and in Ext.C3 plan exists and is being used by the appellant and his predecessor for more than 20 years, prior to the filing of the suit and it was being used as of right and as an easement openly, peacefully and without any interruption and therefore is entitled to a decree sought for declaration and mandatory injunction. First respondent challenged the decree and judgment before Sub court, Kasargod in A.S. 60/91. Learned Sub Judge on reappreciation of evidence, set aside the finding of the trial court on the existence of the pathway `P' in Ext.C3 plan and the eye sketch. It was found that Ext.C2 report submitted by the Commissioner establish that the pathway was not being used. Hence on that evidence it was found that much before the existence of the suit, the pathway was not in existence. It is on SA No.933/94 Page numbers that basis, question whether appellant established a right of easement by prescription was appreciated and considered. Learned Sub Judge found that appellant did not establish existence of the pathway and that the pathway is being used openly and peacefully for more than the requisite period, as provided under Section 15 of the Easement Act. Hence the decree granted by the trial court was set aside. The appeal was allowed and suit was dismissed. It is challenged in this appeal.
2. Appeal was admitted formulating the following substantial questions of law:
(i) Whether appellate court committed an error of law in finding that there is no pathway 'P', when first defendant categorically admitted existence of the way. (2) When existence of an ancient pathway from the house of plaintiff up to the property of defendants is proved to exist and when that pathway is continued through the property of the defendants, is it not proved that the said pathway is the one which is being used by the plaintiff from the date of its origin.
(3) Whether first appellate court committed an error of law in the consideration of the pleadings, evidence and finding that the appellant did not establish a right of easement by prescription which was upheld by the trial court on the evidence.
SA No.933/94 Page numbers
3. Learned counsel appearing for appellant and first respondent were heard.
4. Learned counsel appearing for the appellant argued that what was contended by first respondent in his written statement was not that the pathway `P' marked in the eye sketch exist only up to his house and does not proceed towards further north up to the house of the appellant and instead the very existence of the pathway was denied. It was pointed out that when first respondent was examined as DW1, he was questioned with regard to the existence of the pathway `P' marked by the Commissioner in Ext.C3 plan and he admitted existence of the pathway and also that the pathway has been in existence for more than 30 years. It was also pointed out that the existence of the pathway up to the northern boundary of the property in R.S. 579/5B belonging to first respondent was not disputed and the pathway which starts from the southern public road and reaches up to the south eastern corner of the property of the first respondent has admitted and the dispute is only with regard to the portion which starts from the south western portion SA No.933/94 Page numbers of the property of the first respondent and connects the pathway, which is in existence from the northern boundary of the appellant and runs up to the northern boundary of the first respondent's property. It is therefore argued that when first respondent himself admitted that pathway `P' as marked in Ext.C3 plan exist, the first appellate court has committed an error in finding that the pathway does not exist. Learned counsel also pointed out that the Commissioner inspected the property and submitted Ext.C1 report on 20.9.1985 and Ext.C2 report and Ext.C3 plan were submitted after the inspection on 29.11.1987 and first appellate court omitted to take note of the fact that appellant has first pleaded in the plaint itself that the pathway was obstructed by respondents and a decree for mandatory injunction for restoration of the pathway was sought for. It was argued that when the portion of the pathway, which runs through the property of first respondent was obstructed, it could not be used for more than two years after the institution of the suit and in Ext.C2 report it was found that the pathway was not in use but on the fact and evidence it cannot be taken that a pathway was SA No.933/94 Page numbers not in use even before the institution of the suit. It was argued that findings of first appellate court, based on the findings in Ext.C2, is erroneous especially in the light of the admission of DW1. It was further argued that first appellate court negatived right of easement by prescription for the reason that no pathway was in existence without appreciating the evidence properly and when evidence establish that the said pathway has been in existence for atleast more than 30 years prior to the institution of the suit, finding of first appellate court is erroneous and the finding of the trial court is to be restored.
5. Learned counsel appearing for the first respondent argued that being a suit for declaration of right of easement by prescription, burden is on the appellant to plead and prove all the ingredients provided under Section 15 of Easement Act.
Reliance is placed on the decision of the Apex court in Justiniano Antao v. Bernadette B. Pereira [AIR 2005 SC 236]. It was argued that when appellant did not plead in the plaint when he or his predecessors started to use the disputed pathway, there is no proper pleading and an evasive pleading SA No.933/94 Page numbers that the pathway is being used for more than 100 yeas is not sufficient. Learned counsel also argued that Exts.A1 and A2 title deeds did not establish that the disputed is in existence or that appellant has a right to use that way and on the evidence findings of first appellate court is perfectly correct. It was also argued that appellant who claims a right of easement by prescription was not examined and only his son was examined as PW1 and his evidence is not sufficient to prove the right of way. Learned counsel also argued that Ext.C2 report shows that in the course of the pathway, claimed by appellant, there exist a jack tree aged 30 years and there are also coconut trees and in such circumstances, no pathway could exist as claimed by the appellant and appreciating this court may not reappreciate the evidence to substitute that finding. It was therefore argued that on the failure of appellant to establish the necessary ingredients, he is not entitled to the right of easement by prescription, especially when Ext.C2 report establish that a pathway `P1' which runs towards the east and reaches the public road and pathway `P3' which runs towards the north are SA No.933/94 Page numbers available to the appellant and when there is an alternative way available to the appellant, he is not entitled to claim a right of way through the property of first respondent.
6. When the trial court found that pathway `P' ,as marked by the Commissioner in Ext.C3 plan and by the plaintiff in the eye sketch produced along with the plaint, does exist first, appellate court found otherwise. It is seen that trial court on the evidence of DW1 as well as the report of the Commissioner and evidence of PWs 1 to 3 found the existence of the way. But first appellate court interfered with that finding based on Ext.C2 report. First appellate court found that Ext.C2 report shows that there existed a jack tree and coconut tree in the course of the pathway claimed by the appellant and there were wild growth in the course of the pathway. It is on that finding it was held that the pathway was not being used prior to the institution of the suit. As rightly pointed out by learned counsel appearing for appellant, the first appellate court unfortunately omitted to take note of the time lag between the first inspection made for submitting Ext.C1 report and the second inspection, on the basis SA No.933/94 Page numbers of which Ext.C2 report was filed. The very allegation of the plaint was that the first respondent caused obstruction to the pathway in 10.9.1985. It was contended by the appellant that since first respondent had caused an obstruction, a decree of mandatory injunction for removal of the obstruction is warranted. If that pathway claimed by the appellant was not being used after the institution of the suit in September 1985 and when the Commissioner inspected the property two years thereafter on 29.11.1987, Commissioner could find wild growth in the course of the pathway. Hence for that reason, it is not possible to hold that no such pathway exists as found by the trial court. That exactly is what has happened in this case. After the institution of the suit, the Commissioner inspected the property and submitted Ext.C2 report on 29.11.1987 for more than two years the disputed way could not be used by the appellant. Because of the obstruction caused, even though trial court found that appellant did not take any steps to get the obstruction removed, if there is an existing way, which was being used and it was obstructed, he would have taken steps to remove the SA No.933/94 Page numbers obstruction. Unfortunately, first appellate court omitted to take note of the fact that this suit was filed for the very purpose of removing the obstruction. Therefore, because of the wild growth found in the course of the pathway when Commissioner inspected the property two years after the institution of the suit, it is not possible to hold that no such pathway exist. So also when Ext.C2 report and the evidence establish that existence of the jack tree in the pathway as such will not cause obstruction to use it as a way. Hence on these grounds the findings of the trial court should not have been reversed by the first appellate court.
7. It is pertinent to note that even when the son of appellant was examined as PW1, there was no case for him that there is no pathway from the house of the appellant which runs towards south and touches the northern boundary of the property of first respondent. When the course of that pathway as it existed was shown by the Commissioner in Ext.C3 plan, what was deposed by PW1 was that the pathway does exist but runs through the eastern areca garden of the appellant. But there is no evidence of such a way. Therefore that admission of SA No.933/94 Page numbers PW1 also strengthens the case of appellant that there existed a pathway from his house which runs towards south through the property of first respondent.
8. Added to this, when DW1 was specifically questioned on the existence of the pathway. As stated earlier, what was contended in the written statement was not that there existed a pathway up to the southern boundary of his property and the way then deviates to his house and there is no extension of that pathway further towards north up to the house of the appellant. On the other hand, the very existence of a pathway as marked by the appellant in the eye sketch from the southern road was denied. As seen from the eye sketch appended to the plaint the pathway marked in the eye sketch was starting from the southern public road and runs through the R.S. 579/5B belonging to first respondent and reaches the residential house of the appellant in R.S. 607/2A. If the case of first respondent that the pathway which starts from the southern property reaches only up to the southern portion of his property and it thereafter deviates to his house towards the west that case SA No.933/94 Page numbers would have been pleaded. When DW1 was shown Ext.C3 plan and he was questioned with regard to the existence of the pathway `P' as marked by the Commissioner in Ext.C3, DW1 admitted that the said pathway exists. As rightly argued by the learned counsel for the appellant in the light of this admission of DW1, first appellate court was not at all justified in finding that no pathway, as marked 'P' by the Commissioner in Ext.C3 plan, exists. The pathway so admitted is the one marked in Ext.C3 is the disputed pathway. If that be so, finding of the trial court on the basis of evidence that the pathway `P' as marked by the Commissioner in Ext.C3 is perfectly correct and that of first appellate court is not sustainable.
9. Then the question is whether appellant established the ingredients of a right of easement by prescription. All the ingredients as provided under Section 15 of Easement Act were pleaded. The argument of learned counsel for first respondent is that the plaint does not contain the allegation about the date from which the pathway was being used. The argument is based on the decision of the Apex court in Justiniano's case SA No.933/94 Page numbers (supra). The relevant portion of the judgment reads thus:
"But in order to establish a right by way of prescription one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. There should be categorical pleadings that since what date to which date one is using the access for the last 20 years. In order to establish the right of prescription to the detriment of the other party, one has to aver specific pleadings and categorical evidence".
10. It is to be borne in mind that a judgment cannot be read as a statute. What is declared by the Apex court is only that the necessary pleadings as provided under Section 15 of Easement Act should be pleaded. It cannot be said that even though the plaintiff has pleaded all the necessary ingredients, including the fact that he and his predecessor have been using the pathway for more than 100 years, appellant is to be non suited for the sole reason that he did not plead the date on which, the right to use the pathway commenced. That is not what is contemplated by the said decision. Therefore based on the said decision, it cannot be said that appellant did not plead the necessary ingredients to claim a right of way by easement of prescription.
SA No.933/94 Page numbers
11. Then the question is whether evidence establish the ingredients. First appellate court reversed the finding of the trial court mainly for the reason that the pathway does not exist. It is already found that the said finding is not correct. If that be so, the corollary finding will not stand. Appreciation of evidence show that trial court rightly found that appellant and his predecessor have been using the disputed pathway as of right and as an easement openly, peacefully and without interruption for more than 30 years and thereby prescribed a right of way by easement of prescription. The trial court rightly granted a decree for declaration and mandatory injunction. The judgment of the first appellate court is therefore set aside.
Appeal is allowed. The decree and judgment passed by the Sub Court, Kasargod in A.S. 60/1991 are set aside. The decree and judgment of Munsiff court, Kasargod in O.S. 312/1985 are restored. Parties to bear their respective costs.
M.SASIDHARAN NAMBIAR, JUDGE
vps
SA No.933/94 Page numbers