Kerala High Court
Gouri Amma Krishnamma vs Seethalakshmi Amma And Ors. on 1 August, 2003
Equivalent citations: AIR2004KER75, AIR 2004 (NOC) 75 (KER), (2003) ILR(KER) 3 KER 468, (2003) 2 KER LT 798, (2003) 2 KER LJ 31, (2003) ILR 3 KER 468
JUDGMENT A. Lekshmikutty, J.
1. Plaintiff in O.S. No. 23 of 1993 on the file of the Munsiffs Court, Cherthala is the appellant herein. The plaintiff filed the suit for declaration and injunction. The plaint item No. 1 property absolutely belongs to the plaintiff as per the decree in O.S. No. 315/72 and sale deed No. 2383/89. The plaintiff and her predecessors were enjoying the said property for the last 50 years. There is a residential building in item No. 1 property wherein the plaintiff and his family are residing. Plaint schedule item No. 2 belongs to defendants 1 to 5. The said property lies on the east of item No. 1. A portion of item No. 2 was sold to the 5th defendant and as such he is in possession of the said portion. On the eastern side of item No. 2, there is a public road which starts from Cherthala Government Girls High School Junction. The plaintiff and his predecessors in interest have been using the pathway through item No. 2 which is shown as item No. 3 for ingress and egrees to item No. 1. The plaintiff and his predecessors in interest have been using the item No. 3 pathway peaceably openly and as of right as an easement without any obstruction for the last 50 years. The plaintiff has no other way except item No. 3 pathway for ingress and egress to item No. 1 property from the road. So, the plaintiff has got a right of prescriptive easement over the item No. 3. The defendants have no manner of right to obstruct the user of the item No. 3 pathway. But the defendants jointly tried to obstruct the pathway. If the defendants succeed in their attempt, it will cause irreparable injury to the plaintiff. Hence the suit is for declaration of prescription easement over the item No. 3 pathway and also for consequential injunction.
2. Defendants 1 to 4 filed written statement contending that the suit is not maintainable. They are residing at Perumbavoor. Item No. 2 property has no fencing. Hence the people in the vicinity of item No. 2 might have used item No. 2 for ingress and egress. But that is not as of right. The allegation that the plaintiff and his predecessors in interest have been using the item No. 3 pathway as of right, as an easement, peaceably, openly and without any obstruction for the last 50 years is denied. Item No. 2 property was sold to 5th defendant and as such, the 5th defendant is in possession of the said portion. Admit the existence of road on the eastern side of item No. 2. There is no pathway as item No. 3 as alleged in the plaint. There are pathways across item No. 2 other than item No. 3. But none of them is a pathway in respect of which easement right can be claimed. The plaintiff has alternative way for ingress and egress to the item No. 1 property. On the western side of item No. 1, there is a pathway through which the plaintiff can reach the eastern road. The above said road is in existence for a very long time. Even before construction of the road, there was a pathway. The plaintiff and his predecessors in interest have been using the above said pathway for ingress and egress to item No. 1. The plaintiff has not perfected any right of prescription easement over item No. 1. The plaintiff has constructed a compound wall on the eastern side of item No. 1 about 7 years back. Before that, there was no gate. The plaintiff has been maintaining a fence about 6 to 7 years back in the place where he has constructed the compound wall. There was no step on the eastern fence. Defendants 1 to 4 applied for sanction for the reconstruction of the building in item No. 3. Even before that, defendant has got a plan approved by the municipal authorities. The plaintiff influenced his level best for the non-approval of the plan submitted by defendants 1 to 4. But the plan was approved. The plaintiff is not entitled to get any relief as prayed for and the suit is liable to be dismissed.
3. The 5th defendant also filed written statement raising identical contention of defendants 1 to 4. The allegation that the plaintiff and her predecessors have been using item No. 3 as of right of easement, openly, peaceably and without any obstruction for the last 50 years is denied. The south eastern portion of the item No. 2 belongs to the 5th defendant. He purchased 10 cents of property as per document No. 3141/88 and the said property is in the absolute possession and enjoyment of the 5th defendant. After purchase, he has constructed fence on the eastern, northern and western side of the property by using stumps. The said fact is known to the plaintiff at the time of purchase of the said 10 cents. There was no pathway as alleged by the plaintiff. At present, there is no fence in the property of the defendants. When the property remained unfenced, the plaintiff or somebody might have walked through the defendants' property. That would not entitle to claim the right of easement by prescription over item No. 3. The plaintiff has constructed a compound wall and a gave about 7 years back. Before that there was a fence on the eastern side, wherein no gate was fixed. The suit is liable to be dismissed.
4. The trial Court on the basis of the pleadings raised three issues. The evidence consists of the oral testimony of P.Ws. 1 to 5 and Exts, A-1 to A-3 on the side of the plaintiff. On the side of the defendants P.Ws, 1 to 6 were examined and Exts. B-1 to B-3(a) were marked. The trial Court after appreciation of the evidence, dismissed the suit. Against the said judgment and decree, the plaintiff filed A.S. No, 119 of 1996 before the Sub-Court, Cherthala. The Sub-Court, Cherthala dismissed the appeal with costs confirming the judgment and decree of the trial Court against which this second appeal is filed by the plaintiff.
5. The substantial questions of law formulated in the second appeal are:
(i) Whether the Judgments and decrees of the Courts below are perverse?
(ii) Whether the plaintiff is entitled to get a decree for declaration of easement by prescription and injunction.
6. The points:-- It is the admitted case of the parties that plaint A schedule property belongs to the plaintiff and plaint B schedule belongs to the defendants. The property of the defendant is lying to the east of the property of the plaintiff. The 5th defendant is in possession of 10 cents of property on the south-eastern portion of item No. 2. The case of the plaintiff is that himself and his predecessors were using item No. 3 for the last more than 50 years peaceably openly and as of right as an easement and without any obstruction. It is the admitted case of the parties that a public road lies on the eastern side of item No. 2. The existence of the pathway is denied by the defendants. As per the defendants, on the western side, plaint schedule item No. 1, there is a pathway which is used by the plaintiff and her predecessors for access to the eastern public road. Originally, there was a fence in the property of the plaintiff and subsequently some 7 years back, she has constructed a compound wall and a gate. Defendants 1 to 4 are residing at Perumbbavoor, a place far way from the plaint schedule property. It was not bounded with fence. Taking advantage of the same, somebody might have walked through the property of the defendants. But no right of easement has been perfected by anybody. The defendants have obtained sanction for the construction of a building in their property.
7. To substantiate the contention of the respective parties, they have adduced oral and documentary evidence. In order to grant a decree of declaration of easement by prescription, the plaintiff must prove that there is a pathway in existence through the property, the pathway is being used by the plaintiff and her predecessors for the last more than 20 years continuously, uninterruptedly, openly and as of right as an easement without any destruction (disruption). The plaintiffs case is that herself and her predecessors were using item No. 3 for the last more than 50 years and thus she has perfected right of easement by prescription over item No. 3. Admittedly, the defendants' property lies on the eastern side of plaintiffs property. The contention of the defendants is that the plaintiff and her predecessors were using the pathway on the western side of their property for ingress and egress to the eastern road. DW-2 is an independent witness who was cited to prove that there was no pathway through the property of the defendants. It is admitted by PW-1 also that DW-2 was a tenant of the building. She was residing in the said building in item No. 2 from 1972 to 1981. She categorically deposed that there was no pathway through item No. 2 and the said property was fenced on all sides. According to her during the residence in item No. 2, there was no pathway through item No. 2. She further deposed that the plaintiff's access to the eastern road is the pathway which lies on the western side of item No. 1. Both the Courts below accepted her evidence. The said version of -DW-2 is admitted by the plaintiff also during cross-examination.
7A. As per Section 15 of the Indian Easement Act, the person who claims easement by prescription should prove that he was using the pathway peaceably, openly and uninterruptedly as of right as an easement for more than 20 years without any obstruction. PW-2 is the Municipal Councillor who has stated that there is a pathway in item No. 2 which is used by the plaintiff and her predecessors. But his evidence is belied by the evidence of DW-2 who was residing in item No. 2 as a tenant. It is argued by the learned counsel for the plaintiff that the existence of the gate on the south-eastern boundary is admitted by the defendants also. If there was no pathway as claimed by the plaintiff there would not have been a gate there. The plaintiff in her examination admitted that the compound wall has been constructed 2 or 3 years prior to the institution of the suit whereas the Commissioner has assessed the age of the gate as 10 years. From the admission of PW-1, it can be found that the gate was put up only 2 or 3 years back. It is his case that there was a fence before construction of the compound wall. PW-5 deposed that the age of the compound wall as 25 years. So, with regard to the construction of the gate, inconsistent versions were given by the witnesses. Ext. A-3 sale deed would show that there is a pathway on the western side of the item No. 1 which leads to the Municipal road. The said document is of the year 1963. So, it can be seen that even prior to 1963, Municipal road was in existence and there was a pathway on the western side of item No. 1 to reach the eastern road. During cross-examination, PW-1 admitted that there were fences on all the 4 sides of item No. 2 about 10 to 12 years back when the building was being occupied by the DW-2. PWs-2 to 4 also admitted that there were fence in all sides in item No. 2 while DW-2 was residing in the said property and it was destroyed after the surrender of the tenanted building by DW-2. So, the contention of the defendants that plaintiff might have used to walk through item No. 2 for convenience after the destruction of the fencings seems to be probable. If it be so, it would not confer any right of easement by prescription to plaintiff. The plaintiff has miserably failed to prove that she has perfected a prescriptive right of easement in item No. 3.
8. Now the 'plaintiff has filed I.A, No. 95 of 2003 for amending the plaint incorporating the prayer for easement of necessity. The said application is resisted by the defendants by filing the counter-affidavit. The suit is filed as early as in 1993 claiming easement by prescription. First of all, the plaintiff has no case that item Nos. 1 and 2 properties have been in the common ownership and there was severance tenements subsequent to that. Easement of necessity arises on the severance of tenements. Here, in the instant case 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. Further, it has come out in evidence that there is a pathway for the plaintiff through the western side of item No. 1 for ingress, and egress to the eastern road. According to the plaintiff and, the commissioner, item No. 3 is the convenient way to the, public road. But it is to be noted that alternative inconvenient pathway is not a ground for claiming easement of necessity. The existence of alternate pathway however inconvenient it be is sufficient to reject the claim of easement of necessity. The necessity must be absolute and not convenient mode of enjoyment. Further easement of necessity cannot be claimed in the absence of severance of tenements. The necessity should have come into existence on severance of tenements into two distinct tenements. Where there is no allegation of prior joint ownership and the evidence would show that the two tenements were owned by different persons there cannot be any question of easement of necessity. The Commissioner has specifically pointed out the existence of the pathway through the western side of item No. 1 and he came to the property through the said pathway. It has come out in evidence that the property in western side of item No. 1 belongs to plaintiffs sister Lakshmi Ammal and the said property and plaint item No. 1 were jointly owned by them and others and it was severed from item No. 1 in the partition deed. So, the plaintiff has right to use the said pathway as easement by necessity. Since the LA. was filed at a belated stage, it was dismissed. Further, there is clear evidence of alternate pathway for ingress and egress to item No. 1 and the eastern road. So, the question of easement of necessity would not arise in this case. The Courts below rightly appreciated the evidence and dismissed the suit. The questions formulated are answered accordingly.
The second appeal is dismissed.