Kerala High Court
Maniyam Krishnan And Anr. vs Maniyam Nanukuttan on 6 November, 1985
Equivalent citations: AIR1986KER75, AIR 1986 KERALA 75, (1986) 2 CIV LJ 131, (1986) ILR(KER) 1 KER 526, ILR (1986) 1 KER 526, (1986) KER LT 203
JUDGMENT Varghese Kalliath, J.
1. This is an appeal by the defendants. The first defendant is the father of the 2nd defendant. Plaintiff is the brother of the first defendant. The suit was for declaration of an easement of right of way. The trial Court dismissed the suit. The appellate Court reversed the judgment of the trial Court and decreed the suit.
2. I shall deal with the facts briefly. Plaint A schedule property belongs to the plaintiff The property on the western side of plaint A schedule property belongs to the defendants. Plaintiff is claiming an easement of right of way over the property of the defendants. The right of way is claimed by "the plaintiff so as to reach the public road, viz. Medical College, Ulloor Road. The pathway claimed is admittedly in the property of the defendant It is a very short pathway insofar as the span of it takes only a very short distance in the defendants' property.
3. Plaintiff alleges that to reach the mam road, he has no other alternative way. It is also said that this is the only way to reach the family temple from his residence. Plaintiff has put forward his case that he has acquired an easement of right of way by prescription. He also tells the Court that he has a right of way as easement of necessity.
4. Defendants contended that the plaintiff was not using any portion of their property as a pathway and that the plaintiff has not acquired any right of way as an easement over any portion of defendants' property by prescription. They also contended that the. plaintiff has convenient alternative way to Medical College-Ullur Road. They denied, the claim of the plaintiff that he has a right of way as an easement of necessity.
5. The trial Court after considering the evidence adduced in the case held that the plaintiff failed to prove the acquisition of right of way by prescription and also that the plaintiff was not able to establish his claim of right of way on the basis of an easement of necessity. The defeated plaintiff filed an appeal before the District Court, Trwandrum. As stated, earlier, the appeal was allowed. The appellate Court reevaluated the evidence and found that the plaintiff has acquired an easement of right of way over defendant's property by prescription. The appellate Court also found that the plaintiff has got a right of way by easement of necessity over the property of the defendants. Now the defendants appeal.
6. The final fact-finding Court has now found that the plaintiff was using the disputed portion of defendants' property as a pathway for a period of more than 20 years and that the plaintiff has acquired a right of way over the said property by prescription. The appellate Court has considered the evidence in great depth and commented on the appreciation of die evidence made by the trial Court. In second appeal, I am not bound to reassess the evidence. The learned counsel for the appellants submitted that for appreciating the point of law he has raised, an examination of the evidence in the case is necessary. He says that there is no parameter other than the evidence in the case to value the point of law arising in the case. I have examined the evidence in the case. The witnesses have stated categorically that the plaintiff was using the disputed portion in defendants' land as a pathway. There are no serious inconsistencies in the deposition of the witnesses to disbelieve or to disregard the evidence of the witnesses. Of course, the learned counsel for the appellants submitted that the approach made by the appellate Court in re-assessing the . evidence is defective and superficial I cannot agree. To illustrate the way in which both the Courts have approached the evidence, I shall deal with the evidence of P.W. 3 Admittedly, P.W. 3 is a neighbour. He has said about the user of the disputed pathway by the plaintiff ever since he has commenced his residence in the A schedule property. The lower Court disbelieved this evidence on the basis that his case of plaintiffs residence in the A schedule property from 1940 onwards is not true and also on the ground that he has admitted that "he has come to depose on the request of the plaintiff' The appellate Court said "it is absolutely a flimsy ground to discard the testimony of a witness". The appellate Court further criticised the appreciation of evidence of this witness by the Munsiff thus :
"Another ground stated by the learned Munsiff, is that "He is a close friend of the plaintiff even though he was hesitant to admit, it". Except that this witness knows the plaintiff, he has not admitted that "He is a close friend of the plaintiff. Nothing has been elicited in his cross-examination to infer that he is in any way favourably inclined to support the plaintiff Being a close neighbour it is only natural that he knows the plaintiff But that is no ground to disbelieve his version especially when his evidence is in tune with the probabilities and circumstances indicated above."
I think the approach made by the appellate. Court is perfectly sound and legal I accept the finding of fact recorded by the appellate Court in regard to the question of user of the pathway.
7. The learned counsel for the appellants submitted that even if the entire evidence of the plaintiff is believed, there is no evidence in regard to one of the vital elements to be proved for establishing an easement of right of way in so far as there is no evidence in the case that the user was as of right I think I have to examine this aspect of the case in a little detail.
8. Before examining this question, I shall consider the other part of the case, namely whether the plaintiff has established a claim of the user of that portion of defendants land as a pathway, as an easement of necessity. Of course, the learned Munsif refused to accept the case of easement of necessity. oP the ground that there is ample evidence if' HE case to show that through the Nadavarambu on the eastern side of the plaint A schedule property, the plaintiff can very well go to the Medical College-Ulloor Road through Madathurvilakam lane and Cherukarakonam lane. The appellate Court did not agree. It was pointed out by the appellate Court that the alternative way pointed out is through the judges of paddy fields on the east The appellate Court observed that such pathways along the ridges of paddy fields cannot be considered as a pathway as such over which one could acquire a right of easement. The appellate Court relied on the decision reported in AIR 1975 All 461, to support the abovesaid proposition. Finally, the appellate Court found that the existence of a pathway on the ridges of' the paddy fields cannot militate against the claim of easement of necessity. The appellate Court reversed the finding of the lower Court that the plaintiff is not entitled to an easement of necessity. I think the correct position in law in regard to easement of necessity has not been adverted to or considered by both the Courts.
9. I may now quote Section 13 of the Easements Act, 1882.
"13. Easements of necessity and quasi-easements. -
Where one person transfers or bequeaths immovable property to another, --
(a) If an easement in other immovable property of the transferor or. testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied,, be entitled to such easement;
(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative Of the testator shall be entitled to such easement; or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
Where a partition is made of the joint property of several persons. -
(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
The easements mentioned in this section, Clauses (a), (c) and (e) are called easements of necessity."
Easement of necessity arises on the severance of tenements. The rationale or the legal basis of this kind of easement can be traced to the creation of an implied grant Really, easement of necessity is an easement, which under particular circumstances the law creates by virtue of the doctrine of implied grant to meet the necessity of a particular case. As far as the Indian Law is concerned, the contours of this doctrine of implied grant to create an easement of necessity are well delineated in the section itself. It has to be remembered that it is an easement which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one without which that tenement cannot be used at all. Vide Aldridge v. Wright, (1929) 2 KB 117 CA and Union Lighterage Co. v. London Graving Dock Co., (1902) 2 Cb 557. It has to be remembered that an easement of necessity arises where normally both the dominant and servient tenements have been in common ownership so that the creation of an easement by implication of law may be said to be the outcome of the former jointness of the two tenements. The disposition which causes a cessation of the common ownership that gives rise to the creation of an easement, may be of either tenement, or a simultaneous disposition of both tenements.
10. Here the plaintiff has no case that both the servient and dominant tenements were in common ownership and that by a disposition there was cessation of that common ownership. In view of this fundamental fact, I think the plaintiff cannot sustain the claim of an easement of necessity. .1 feel the finding of the appellate Court that the plaintiff has an entitlement to an easement of necessity is not correct.
11. Now, I shall examine the question regarding the important element, which according to the defendants' counsel has not been established by the plaintiff for claiming an easement of right of way by prescription. He submits that there is no evidence in this case that the user by the plaintiff of the disputed portion of the property was as of right Section 15 of the Easements Act, deals with acquisition by prescription.
"Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement, shall be absolute."
A scrutiny of this section reveals that the following conditions should exist before an easement can become absolute by prescription. (1) There must be a pre-existing easement which must have been enjoyed by the dominant owner; (2) the enjoyment must have been peaceable; (3) the enjoyment must have been as an easement; (4) the enjoyment must have been as of right; (5) the right must have been enjoyed openly; (6) the enjoyment must have been for a period of 20 years and (7) the enjoyment for 20 years must have been without interruption.
12. This section is the statutory recognition of the principle of English common law relating to acquisition of easement by prescription with some modifications. Prescription as a source of right in English law is generally described as being applicable only in situations where the servient owner could' be regarded as having acquiesced in the user. The authoritative statement on this matter is made' by Fry, J. in his advice to House of Lords is Dalton v. Angus, (1881) 6 AC 740. The learned Judge observed :--
"In many cases......first, the doing of some act by one man upon the land of another; secondly, the absence of right to do that act in the person doing it; thirdly, the knowledge of the person affected by it that the act is done; fourthly, -the power of the person affected by the act to prevent such act either by act on his part or by action of the Courts; and lastly, the abstinence by him from any such interference for such a length of time as renders it reasonable for the Courts to say that he shall not afterwards interfere to stop the act being done."
In Krishna Narain Agarwal v. Carlton Hotel (P) Ltd., 1969 SCD 1105 the Supreme Court has laid down that to establish the claim under Section 15 of the Easements Act, continuous user of 20 years as of right to do the act complained of in assertion of a title, peaceably and openly must be made out The only point the learned counsel for the appellants wants to emphasise is that the user, even if for the required period is proved, it is not a user as of right The enjoyment of the act complained of as of right contemplated by Section 15 of the Indian Easements Act is the same requirement of user necprecarion of English Common Law. Gale says (Gale on Easements, 14th Edn. page 176) that the enjoyment roust not be permissive. What is permissive is precarious. What is precarious? "That which depends not on right, but on the will of another person". Vide Burrows v. Lang, (1901) 2 Ch 502 at 510. The learned counsel for the appellants submits that the user in this case should be presumed on the consent and permission of the defendants. He submits that the Indian condition in regard to user of other's land for convenient access to main roads is a common and prevalent practice and that such user is not a user as of right He submits that such use of neighbours' land never depends on right but on the consent and the good sense of the neighbour. The meaning of the word user as of right can be understood clearly from Halsbury's Laws of England 4th Edn. Vol 14 page 41, para 83. The user or enjoyment of an alleged right must be shown to have been "as of right", the user as of right, having been enjoyed nee vinec clam, nee precarious (neither as the result of force, secrecy, or evasion) nor as dependent upon the consent of the owner of the servient tenements. Consent or acquiescence on the part of the servient owner lies at the root of prescription, and a grant cannot be presumed from long use without his having had knowledge or at least the means of knowledge. He cannot be said to acquiesce in an act enforced by mere violence, or in an act which fear on his part hinders him from preventing, or in an act which he has no knowledge actual or constructive, or which he contests and endeavours to interrupt or which he sanctions only for temporary purposes, or in return for recurrent consideration." In substance, it means that the enjoyment should be without violence, without stealth and without permission. The importance is that the user must be peaceable, open and non-permissive. The learned counsel submits that in the circumstances of the case, the user should be considered not as of right but should be a user by permission.
13. The learned counsel refers us to the decision Narayana Shenoi v. Kunjan reported in ILR (1956) Trav Co 842 (843). Sankaran, J. as he then was, said :--
"From the mere fact that the plaintiffs tenants were taking a short cut through the defendant's unenclosed property, it cannot be presumed that they were doing so as a matter '. of right. They had access to the road through a lane and from a gap in the plaintiffs property. When such free access was available to these people, it is not at all likely that the owner of the eastern property would have thought that the short cut that these people were taking through his own property was anything in the nature of the exercise of any right by them. On the other hand, the natural inference is that he must have given his tacit permission to these people to have such short cut so long as his property was left as open land without any enclosure. In India it is customary for the owner of a piece of waste land not to raise any objection to the passage of strangers over such land and that a mere period of long user will not give rise to any presumption that such user was as a matter of right.
Relying on these observations, the learned counsel submitted that since there is no clear proof regarding the user as of right, the plaintiffs claim for easement by prescription has to be rejected.
14. The learned counsel for the respondent, Shri Kesavan Nair, tells me that the circumstances revealed in the case cited, namely ILR (1956) Trav Co 842 and the circumstances revealed hi this case are totally different. The appellants now cannot turn round and say that the user was permissive when they have categorically stated in the written statement that they have never given permission to the respondent to use any portion of his property as a pathway. He invites me to note the following passages in the written statement :--
(Matter in Vernacular Omitted -- Ed) The learned counsel for the respondent, submits the' in view of this categorical statement in the written statement, it is now not open to the counsel for the respondent to urge that this Court should consider that even if there is user for the required number of years, it should be with permission.
15. The learned counsel for the appellants reiterates that the Courts are bound to take note of the habits of the people in considering whether a portion of land was used by the neighbour for an easy cross-cut to the main road. This aspect has been considered in an Id decision Khoda Buksh v. Shaik Tajuddin, (1903-04) 8 Cal WN 359. There the Calcutta High Court said :--
"Having regard to the habits of the people of this Country, I do not think that it would be right to draw the same inference from mere user that would be proper and legitimate in a case arising in England. The question is a question of fact, and the propriety of the rule that the presumption from user should be that it is as of right must depend upon the circumstances not only of each particular case but also of such particular country, regard being had to the habits of the people" of that country."
This case has been followed by the Patna High Court in Nasiruddin v. Deokali, AIR 1929 Patna 124. There the circumstances of relationship rebuted a presumption that the user of way by the scavenger was as of right. In Ramachandra v. Hari, AIR 1929 Bom 144 the Calcutta case was cited with approval. But in Rau Rama v. Tukaram Nana, AIR 1939 Bom 149, Beaumont C.J. and Justice Sen observed thus :--
"Where a party shows that for the statutory period he has openly exercised certain rights which are in themselves sufficient to establish an easement, prima facie he is entitled to the easement, and it is not necessary to show that during the whole of the prescriptive period he' was consciously asserting a right to an easement. Most laymen do not know exactly what their legal rights may be. They do certain acts without formulating, even mentally, a legal claim, and in my opinion a right to an easement by prescription cannot be defeated merely by showing that during the whole or part of the period of prescription the plaintiff was not consciously claiming an easement."
16. In Tukaram v. Sonba, AIR 1959 Bom 63 Gokhale, J. distinguished AIR 1939 Bom 149 and observed that the case is distinguishable on the facts and not of any material assistance to the appellants in the case considered by Gokhale, J.. He referred to the Calcutta Weekly Notes Case and approved the principles laid down in the Calcutta .Weekly Notes Case. Finally, the learned Judge said that it is for the Court to consider whether a presumption could reasonably be drawn looking to the circumstances of each case such as the nature and character of the servient land, the relation between the parties and the circumstances and the manner in which the user has taken place.
17. In England, the presumption of long user being as of right is readily drawn because the social conditions and the nature of the landed property there are such that landowners are particularly jealous of their exclusive right over the land. In India, such rigid and jealous views of the exclusiveness of the landed property do not prevail and very often an owner of a piece of waste land never raises any objection to the passage of strangers over such land. The English Law on this point can be understood clearly from Moody v. Steggles (1879) 12 Ch D 261. Fry, J. observed : --
"Where there has been a long enjoyment of property in a particular manner it is the habit, and in my view, the duty of the Court, so far as it lawfully can, to clothe the fact with right."
Similar view was taken by the Judicial Committee of the Privy Council in Bholanath Nundy v. Midnapore Zamindari Co. (1904) 31 Ind App 75. Though in (1903-04)-8 Cal WN 359 it was said that no presumption of a user as of right can be drawn on the facts, that the plaintiff has proved user for the required period for a number of years, Phear, J. in an earlier decision of the Calcutta High Court in Mahomed AH v. Joogul Ram Chunder (1870) 14 Suth WR 124 observed that where a claim to a right of way is supported by evidence of user only, the Court must satisfy itself whether or not the user was founded on actual right, the .guiding principle being dial open user of another's land for the purposes of a road or pathway, if continued without interruption for a long time and not attributable to permission or sufferance, induces the presumption that the user was as of right.
18. In Kunjammal v. Rathnam Pillai AIR 1922 Mad 5 the Madras High Court stated their view of the law in the following words : --
"We do not think that the cases cited by the appellant's vakil establish that no presumption should be raised from user and that in this country enjoyment of a right of way should be presumed to be by licence till the contrary is proved. All that they decided is that there are conditions and circumstances to be taken note of in this country before the Court can come to the conclusion that exercise of a right of way can be held to have been as of right. What the circumstances are which militate against the user being exercised as of right, must like any other fact, be pleaded and it is for the Court to consider whether having regard to the existence of all or some conditions and the considerations referred to by Banerjee, J. a reasonable presumption can be drawn as to the exercise being as of right. The presumption of right from long user is not in this country a presumption de juris et de jure. It only starts a party with a presumption in his favour which can be rebutted by proof of facts which are inconsistent with it or which in the absence of evidence of the defendant, would entitle plaintiff to a decree."
19. In AIR 1917 Mad 386, it was held that where a user is proved, the presumption is that it is as of right, until the contrary is shown. Reversing the decision reported in Lambodar v. Ramesh Chandra, AIR 1958 Orissa 248 in Ramesh Chandra v. Lambodar, AIR 1960 Orissa 95 it was held that where the plaintiff was using the pathway openly and peaceably to the knowledge of the defendant without interruption for over 20 years, the presumption would be that he had been using the same as of right, particularly when the defendant never pleaded that the user was permissive or by sufferance. In Ratanchand v. Kasim Khaleeli, AIR 1964 Mad 209 it was held that long continued user gives rise to a presumption, which, however is rebuttable by proof to the contrary, that it must have been as of right and not with the leave and licence of another. The same view was taken in K. Pulaniappa Moopan v. Angammal (1967) 1 Mad U 177 that when user is established the presumption is that it is as of right until the contrary is proved.
20. In an unreported decision, in S. A. No. 805 of 1975, Chandrasekhara Menon, J. observed :--
"The question is preeminently one of fact and while there are no infallible tests which could be applied to find out whether a user was as of right or not, it would not be improper for any Court to draw an inference from long user as such that it was rather as of right than not."
The learned Judge further observed : --
"However, when we look into the facts of each case, it could be seen that the statements of law made by the various High Courts are reconciliable, A user which is long, open and peaceable would be presumed to be as of right. But it is open to the servient owner to rebut this presumption by alleging and proving circumstances that point to permission or by alleging some other facts."
The valuation of evidence in a case is the measurement or determination of the probative force of evidence. In judicial proceedings, the accurate measurement of the evidential value of facts is a condition of the discovery of truth. Normally, however, this task is left to common sense and personal discretion. But in administration of justice, there are rules and maxims which are recognised as proper for the guidance of individual judgment. In this regard, it has to be remembered that by conclusive proof is meant a fact possessing probative force of such strength as not to admit of effective contradiction. A conclusive presumption is the acceptance or recognition of a fact by the law as conclusive proof. But a presumptive or conditional proof is a fact which amounts to proof only so long as there exists no other fact amounting to disproof. After all it is a provisional proof, 'valid until overthrown by contrary proof.
21. If the defendants have pleaded and highlighted the circumstances and facts pointing to consent or permission, the Courts would carefully consider those facts in order to make definite whether or not the user was as of right. In this case as I stated earlier, the defendants have categorically stated that no consent was given. There is absolutely no scope for considering the question whether the plaintiffs user of the disputed portion of the property as a pathway is with permission or not since the defendants have categorically stated that they have not given any consent at all at any time.
22. The appellate Court has recorded a finding that the plaintiff has acquired an easement of right of way by prescription. I feel that the finding is correct. There is no merit in this appeal. It is dismissed. In the circumstances, I make no order as to costs.