Kerala High Court
Sankaran Nair vs Balan Nair And Ors. on 8 July, 2003
Equivalent citations: AIR2004KER54, AIR 2004 KERALA 54
JUDGMENT A. Lekshmikutty, J.
1. The appellant is the defendant in O.S. No. 281 of 1984 on the file of the Court of the Munsiff, Ottapalam. The suit was filed by the respondent herein for a declaration that he has a right of way through plaint "C" schedule to enter into the plaint A & B schedules and for a consequential injunction. There is also a prayer for mandatory injunction to restore the "C" schedule pathway to its original condition after removing the fence put up at the entrance of the pathway.
2. The plaintiff/respondent contended that the plaint "A" schedule property belongs to him and that the plaint "B" schedule property is his kudiyiruppa. There is a pathway on the southern side of the plaint "A" schedule and on the eastern side of the plaint "B" schedule. The plaintiff and the members of his family used to go out of their house through the pathway on the eastern side of the "B" schedule and thereafter through the pathway on the southern side of the "A" schedule. The portion of the pathway on the southern side of the "A" schedule is shown as plaint "C" schedule item No. 2 and the pathway on the eastern side of the plaint "B" schedule is shown as plaint "C" schedule item No. 1. The plaintiff contended that himself and his family members have got a right of easement by prescription to use the "C"' schedule pathway in question. According to the plaintiff, the defendant/appellant closed the plaint "C" schedule item No. 2 by putting up a fence on the eastern and western sides of the pathway. The defendant's property is situated on the southern side of the pathway shown as "C" schedule item No. 2.
3. The appellant-defendant filed written statement contending that the suit is riot maintainable and that the plaintiff is not entitled to any reliefs in the suit. Portions of the property on the northern and western sides of his property were left out as pathway several years back. The portions of land so left as pathway vested in the Panchayat and it is a public pathway. When there was a proposal by the Ambalappara Panchayat for widening the pathway and to convert it into a road, the plaintiff did not co-operate and did not agree to leave out portions of land from his property. Therefore, the defendant surrendered portions of his property on the eastern and southern sides for the purpose of formation of a Panchayat road and 81/2 cents of land was surrendered to the Panchayat. There was a proposal by the defendant that in lieu of the land so surrendered to the Panchayat for formation of Panchayat Road, the defendant may be given back the land on the northern side of his property (which is plaint "C" schedule item No. 2) and this proposal was accepted by the Panchayat. Accordingly, the defendant surrendered 81/2 cents as stated above and as permitted by the Panchayat, the plaint "C" schedule item No. 2 was closed by the defendant in March 1982.
4. On the northern side of the plaint "A" schedule, the Vengassery-Kadambur Road is situated. Panchayat road is on the eastern side of the plaint "A" schedule and the defendant's property. On the southern side of the defendant's property also there is Panchayat Road. From the Panchayat Road, on the southern side, the plaintiff can enter into the plaint A schedule property through the plaint "C" schedule item No. 1 and there was two gates (G-1 and G-2 in Ext. C1) put by the plaintiff abutting the plaint "C" schedule item No. 1. Going through the plaint "C" schedule Item No. 1 pathway, the plaintiff can enter into the plaint "A" schedule property also through a gate marked as "G" by the Commissioner in Ext. C-1 plan. The plaintiff can have direct access to the Vengassery-Kadambur Main Road from the plaint "A" schedule item. Thus, it can be seen that Panchayat road lies on the eastern and southern sides of the defendant's property, and on the western side, there is a public pathway. It is against the custom and justice that there should be pathways on all the four sides of a person's property. Regarding the surrender of land by the defendant for the formation of the Panchayat road and regarding the surrender of plaint "C" schedule item No. 2 to the defendant, the Panchayat has taken Ext. T1(a) resolution. The Executive Officer of the Ambalapara Panchayat, Ambalapara Panchayat and its President are necessary parties to the suit and the suit is bad for non-joinder of necessary parties. The defendant disputed the easement right put forward by the plaintiff.
5. Before the trial Court, PWs. 1 and 2 were examined on the side of the plaintiff and defendant was examined a DW-1 and the President of the Ambalapara Panchayat was examined as DW-2, Exts. T1 and T1(a) were marked on the side of the defendant. The Commissioner's report and plan were marked as Exts. C1 and C2 respectively. The trial Court after elaborate consideration of the oral and documentary evidence held that the disputed pathway has vested in the Panchayat and that it is a public pathway. The trail Court also held that the plaintiff is not entitled to any easement right and that it is the duty of the plaintiff to implead the Panchayat authorities. Thus the trial Court dismissed the suit.
6. Against the judgment and decree, the plaintiff filed A.S. No. 76 of 1986 before the Sub Court, Ottappalam. The lower Appellate Court erroneously allowed the appeal holding that the plaintiff is entitled to get the relief since he is also entitled to use the public pathway. Against the said judgment and decree, this appeal is filed.
7. The substantial questions of law formulated in this appeal are :
(A) Is the plaintiff is entitled to claim on a prescriptive right of easement over the disputed pathway, when it is held that the disputed pathway is one vested in the Panchayat ?
(B) When the plaintiff can have access to the main road as well as the pathway vested in the Panchayat through which he can have access to the Panchayat Road, can the plaintiff claim any natural right or any prescriptive right to use another pathway which is also vested in the Panchayat ?
(C) Whether the plaintiff is entitled to any prescriptive or natural right over the pathway when he claimed exclusive right or title over the disputed pathway ?
8. Admittedly, plaint A and B schedule properties belong to the plaintiff and C schedule is a pathway which lies on the southern side of A schedule and eastern side of B schedule property. The plaintiff is residing in a building in the plaint B schedule property. Defendant's property lies on the southern side of A schedule and eastern side of B schedule property. The dispute between the parties is in respect of "C" schedule items 1 and 2 pathway which lies on the southern side of A schedule and eastern side of B schedule. The contention of the defendant is that the plaintiff is not entitled to get any relief in respect of plaint C1 and C2 property. According to him C schedule pathway forms part of his property which was used by the plaintiff and others for their access to the eastern Panchayat road. The said property was vested with the Panchayat. The Panchayat wanted to widen the said pathway and asked the plaintiff to surrender portions of his property. But he did not surrender the same. At the time of evidence, DW-1 admitted that plaintiff was not in station at that time and he was working in the Military service. So, it is clear that there was no occasion for the plaintiff to surrender portion of his property. As per the defendant, he has surrendered portions of his property on the southern and eastern sides having an extent of 81/2 cents. The specific case of the plaintiff is that himself and his predecessors were using the "C" schedule pathway item Nos. 1 and 2 for more than 60 years and they have got right of easement by prescription over the said pathway. The suit is filed by the plaintiff when the defendant obstructed the pathway which the plaintiff and his predecessors were using for time immemorial. As per the defendant, the pathway in question is vested in the Ambalapara Panchayat and the Panchayat has every right to do whatever it likes. As per Ext. T1 resolution, the Panchayat decided to surrender the pathway at the request of the defendant as the defendant surrendered 81/2 cents of property on the southern and eastern side for widening the road.
9. But, there is nothing on record to show that the disputed pathway vested in the Panchayat and the Panchayat has got right over the same. On the other hand, the evidence on record shows that the "C" schedule item Nos. 1 and 2 were in existence and defendant and his predecessors were using the said pathway for more than 60 years. This is not denied by the defendant. So, the existence of "C" schedule is proved in this case. Admittedly, no notice was issued to the plaintiff in respect of Ext. T1 resolution passed by the Panchayat regarding the alleged surrender of the disputed pathway which was being used by the plaintiff and his predecessors for time Immemorial. Regarding the vesting of right of the Panchayat over "C" schedule pathway, there is no evidence, Further, there Is no evidence to show that at any point of time, the Panchayat took possession of the same as it was being maintained by the Panchayat. The case of the defendant is that he has left out portions of his property on the south and east having an extent of 81/2 cents to the Panchayat in exchange of "C" schedule property. The President of the Panchayat was examined as DW-2. As per his evidence, the Panchayat passed a resolution to surrender "C" schedule to the defendant as per Ext. T1. It would show that C schedule pathway was being used by the plaintiff and others. As per Ext. T1, the "C" schedule pathway has become useless and permission was granted to the defendant to close the said pathway as the defendant has surrendered 81/2 cents of land for the construction of road. Ext. T1 would further show that the Panchayat has decided to request for sanction from the Director of the Panchayat for surrender of the "C" schedule land. As per the defendant in pursuance of the permission granted by the Panchayat, he has put a fence. But nothing has been produced by the defendant to show the right of the Panchayat over "C" schedule item Nos. 1 and 2 and also the authority of the Panchayat to give permission to close C schedule pathway. Since it has come out in evidence that the plaintiff and others were using the pathway for their access to the Panchayat road, the mere fact that the defendant has surrendered another portion of his property for formation of the road will not disentitle the plaintiff, his right of prescriptive easement over "C" schedule. Apart from the interested testimony of DW-2 who was the neighbour and President of the Panchayat, there is no other reliable evidence to prove the surrender. In the absence of any such evidence, the contention of the defendant that on the basis of the permission given by the Panchayat, he closed the way is not unsustainable. On the other hand, the plaintiff has proved his right of easement by prescription over "C" schedule property. The existence of another pathway is not a ground to disallow the right of easement by prescription. The plaintiff has never claimed ownership over "C" schedule property. The plaintiff has succeeded in proving his case through evidence. As there is nothing on evidence to show that the Panchayat has got any right over the property, the Panchayat is not a necessary party. The suit itself was filed for declaration of right of easement by prescription and mandatory injunction. Right of easement by prescription can be claimed only through another's property. Hence, the questions of law formulated in this appeal are answered accordingly.
10. On an anxious consideration of the entire evidence, I find that the lower appellate Court has rightly appreciated the evidence and decreed the suit. Hence the judgment and decree of the lower appellate Court are confirmed and this appeal is dismissed.