Kerala High Court
Unknown vs By Advs.Dr.V.N.Sankarjee on 21 August, 2014
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR. JUSTICE A.M.BABU
TUESDAY, THE 12TH DAY OF JUNE 2018 / 22ND JYAISHTA, 1940
CRP(WAQF).No. 588 of 2014
AGAINST THE ORDER/JUDGMENT IN WOS 20/2010 of WAQF TRIBUNAL, ERNAKULAM DATED
21-08-2014
PETITIONER(S)/PETITIONER/PLAINTIFF
DIOCESE OF COCHIN
REPRESENTED BY ITS PROCURATOR, FR. JOY SASTHAMPURACKAL,
BISHOP'S HOUSE, FORT KOCHI, KOCHI-682001.
BY ADVS.DR.V.N.SANKARJEE
SRI.P.K.GEORGE
SMT.SMITHA GEORGE
SRI.T.KRISHNAN UNNI (SR.)
RESPONDENT(S)/RESPONDENTS/DEFENDANTS:
1. JAMA-AT MOSQUE (CHEMBITTAPALLI),KOCHANGADY
KOCHI-2, REPRESENTED BY ITS TRUSTEE/KAIKARAN,
P.A.MUHAMMED RAFEEK, AGED 43 YEARS, S/O. AHMED NAINA,
RESIDING AT CC 13/295B, AISHA MANZIL, KOCHANGADY, COCHIN-2
AND C.M.THAHA, KAIKARAN/TRUSTEE, JAMA-AT MOSQUE
(CHEMBITTAPALLI), KOCHANGADI, COCHIN-682002.
2. WAQF BOARD
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER, KALOOR-682017.
R1 BY ADV. ADV.ABDUL JABBAR(CAVEATOR)
R1 BY ADV. SRI.P.A.ABDUL JABBAR
R1 BY ADV. SRI.MUHAMMED SHAFFI
R(ADVOCATE COMMISSIONER) BY ADV. SRI.ANIL S.RAJ
R2 BY ADV. SRI.T.P.SAJID, SC, KERALA STATE WAQF BOARD
THIS CRP(WAQF) HAVING BEEN FINALLY HEARD ON 12.6.2018
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRP(WAQF) 588/2014
APPENDIX
PETITIONERS' ANNEXURES
I-CERTIFIED COPY OF THE DOCUMENT NO.126/1957 OF SRO, COCHIN
II-COPY OF THE RELEVANT PAGES OF THE LIST OF WAQFS PUBLISHED UNDER THE THE WAQF
ACT IN THE GAZETTE NOTIFICATION DATED 8.12.1964 VOL.IX, 1886(NO.48)
RESPONDENTS ANNEXURES
NIL
TRUE COPY
SKS P.A TO JUDGE
K.HARILAL & A.M.BABU, JJ.
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C.R.P.(Waqf) No.588 of 2014
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Dated : 12th June, 2018
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ORDER
Harilal, J The revision petitioner is the plaintiff in O.S.20/2010 of the Waqf Tribunal, Ernakulam. The aforesaid original suit was filed by the revision petitioner herein against the respondents seeking a decree determining the question whether plaint 'B' schedule property is a waqf property or not and also for passing a permanent prohibitory injunction restraining the 1st respondent herein from obstructing plaint 'C' schedule pathway in any manner.
2. The respondents herein filed written statement opposing the said prayer and both parties adduced evidence on the rival pleas. After trial, the Waqf tribunal passed the impugned judgment dismissing the original suit on a finding that the revision petitioner herein failed to prove an easement right of way by prescription over the 'C' schedule property. The legality and propriety of the aforesaid finding whereby the tribunal passed the impugned judgment are assailed in this revision.
3. Brief facts of the case can be summarized as follows : 2
C.R.P.(Waqf).588 of 2014 According to the plaintiff, plaint 'A' schedule property having an extent of 24.10 cents belongs to them and they are conducting an institute of Printing Technology known as CIPT. It is functioning for more than 25 years and at present 22 employees are working in the printing press. Plaint 'B' schedule property, having an extent of 24 cents which is lying on the northern side of the plaint 'A' schedule property belongs to the defendants and it is not clear as to whether the 1st defendant is having ownership over the said property. The plaintiff and persons claiming under him have been using plaint 'B' schedule property for their ingress an egress towards the plaint 'A' schedule property openly, continuously and without interruption for more than 25 years and thus the plaintiff have obtained easement right of way by prescription over the plaint 'C' schedule pathway. The plaintiff has been using this pathway for vehicular traffic also. While so on 19.9.2010, the 1 st defendant came with a group of men and tried forcibly to close the 'C' schedule pathway asserting that the property belongs to them only and the plaintiff has no right to trespass into 'A' schedule property. The aforesaid 'C' schedule pathway is the only entrance for the heavy vehicles which brings raw materials for the printing purposes. When the plaintiff contacted them for conciliation, they said that the property is a waqf property and 3 C.R.P.(Waqf).588 of 2014 they cannot take a decision concerning the property. Now the defendants are trying to block plaint 'C' schedule pathway by constructing wall so as to cover within it the gated portion of the press also. The said act will lead ultimately to the shutting down of the press. If 'C' schedule pathway is obstructed or blocked, the plaintiff will be put to great hardship and irreparable injury. In the above circumstances, they filed the suit to pass a decree determining whether (a). plaint schedule property is a waqf property or not and (b). pass a permanent prohibitory injunction restraining the 1st defendant or anybody claiming under him, from obstructing 'C' schedule pathway in any manner whatsoever.
4. The 1st defendant filed written statement denying the easement right of way by prescription raised by the plaintiff. According to the 1st defendant, the plaint 'B' schedule property is a waqf property. The description of 'B' schedule property is not correct. The 'B' schedule property is a waqf property registered with 2nd defendant, the Kerala Waqf Board as registration No.3330 in the year 1961 and it is included in the list of waqf properties maintained by the said waqf board. The said property is owned, possessed and enjoyed by the defendant and no one has any manner of right in the said property. Neither the plaintiff nor persons claiming under him have any manner of right over plaint 4 C.R.P.(Waqf).588 of 2014 'B' schedule property. The averments of the plaintiffs that they have been using plaint 'C' schedule pathway for the egress and ingress to plaint 'A' schedule property openly, continuously and without interruption for more than 25 years is an utter falsehood and is denied. There is no 'C' schedule pathway as claimed by the plaintiff and it is only an imaginary way invented for the purpose of getting new way. The plaintiff has no right of way through the property of the defendants. The defendants never allowed the plaintiff to use the alleged 'C' schedule pathway for egress and ingress to plaint 'A' schedule property as there was no such way. No vehicles were plied through the 'C' schedule pathway. The plaintiff has cleverly put up a gate opening to the 1st defendant's property but had never used the said gate for egress and ingress. The plaintiff has put up the said gate with an oblique motive in a clandestine manner for claiming right of way through 'B' schedule property. The printing materials never brought to the press through the plaint 'C' schedule pathway nor was it used as an access to press by workers. Moreover, the entire property has a long gate at the southern side, opening to the main road. Similarly another pathway starting from the northern main road terminates on the north-east portion of the plaint 'A' schedule property and that pathway is being used for egress and ingress to 5 C.R.P.(Waqf).588 of 2014 plaint 'A' schedule property. With the above averments, the 1 st defendant has prayed for dismissal of the original suit.
5. The 2nd defendant waqf Board also filed a written statement contending that 'B' schedule property is a waqf property with registration No.3330 and a committee is administering the 'B' schedule property. There is no pathway through the property of the waqf. A plaintiff is having other source of egress and ingress to reach plaint 'A' schedule property. They also prayed for dismissal of the suit.
6. In the trial, the procurator of the plaintiff diocese was examined as PW1 and Exts A1 and A2 were marked. The Muthvally of the 1st defendant Juma-ath was examined as DW1 and Exts B1 and B2 were marked. Exts C1 and C2 commission reports were marked as court exhibits.
7. Heard the learned senior counsel appearing for the revision petitioner, the learned counsel appearing for the 1 st respondent and the learned standing counsel appearing for the 2nd respondent.
8. The original suit is one for a declaration as to whether the plaint 'B' schedule property is a waqf property or not and also for passing a prohibitory injunction restraining the 1 st defendant or persons under him from obstructing 'C' schedule pathway in 6 C.R.P.(Waqf).588 of 2014 any manner. The 'C' schedule pathway is one passing through 'B' schedule property which lies on the northern side of plaint 'A' schedule property and according to the plaintiff, they are not sure as to whether the plaint 'B' schedule property belongs to waqf property. In other words, the plaintiff is unaware of the title and possession of plaint 'B' schedule property. It is the case of the plaintiff that the plaintiff and the persons claiming under him have been using plaint 'C' schedule pathway for the egress and ingress to plaint 'A' schedule property openly, continuously and without interruption for more than 25 years and thus, the plaintiff has acquired an easement right to way by prescription over plaint 'C' schedule pathway.
9. Going by the impugned judgment, it is seen that the suit has been dismissed on a finding that the plaintiff has failed to prove their claim that the plaintiff and their men are using the pathway openly, uninterruptedly as of right and as an easement for more than 20 years. Therefore the point to be considered is whether the tribunal is justified in rejecting the claim for an easement right by way of prescription on a finding that the plaintiff has failed to prove the statutory requirements as provided under Section 15 of the Easement Act.
10. Easement is a precarious right over another man's 7 C.R.P.(Waqf).588 of 2014 property. It is incumbent upon the dominant owner to prove that he has been enjoying the pathway openly, uninterruptedly, as of right as an easement for more than 20 years and 20 years shall be taken to be a period ending within two years next before the institution of the suit. Merely on the reason that the dominant owner has enjoyed the pathway openly, uninterruptedly as of right and as an easement, he will not get an easement of right of by way of prescription, unless he proves that he has been using the pathway for 20 years and that 20 years was a period ending within two years next before the institution of the suit.
11. Therefore, the burden is heavy on the plaintiff to prove the claim in accordance with the statutory requirements as contemplated under Sec.15 of the Easement Act and as illustrated above. In the instant case, in order to prove the right of easement, the procurator of the plaintiff diocese was examined as PW1 and two documents were marked as Exts A1 and A2. We have meticulously gone through the oral testimony of PW1 and prima facie we find that his evidence is not satisfactory to prove his claim for an easement right of way by prescription. Obviously, he is an incompetent witness to swear about the alleged right of enjoyment over the way for the last 20 years. When he was cross-examined he himself admitted that he took the charge of 8 C.R.P.(Waqf).588 of 2014 procurator on 31.1.2010 and he does not know about anything happened in connection with the alleged right of way before 2010 and further he deposed that the person who is well aware of the matters happened before 2010 are available in the diocese. It is well discernible from the answer to several questions touching the title and lie of A schedule and B schedule property that he is not familiar with A to C schedule properties. It is surprising to note that he is not aware of the structures which are constructed in A schedule property. He did not see that the title documents of A and B schedule properties. Further he has put forward a case that C schedule pathway is a pathway which was being used by his predecessors and his predecessors have got right of way through C schedule property as per title documents. It is pertinent to note that no such case was pleaded in the plaint. But, at the same time he admitted that A schedule property forms a part of large extent of property, which stands in the plaintiff's ownership and possession and that large extent of property, which lies within single compound wall, is having two other road access on the northern and southern side. It is very interesting to note that he does not know the person who allegedly obstructed the enjoyment of the way on 19.9.2010. The original suit was filed in 2010 only. It is needless to say, a person who is unaware of the 9 C.R.P.(Waqf).588 of 2014 state of affairs in A and B schedule property before 2010 is incompetent to swear about the user of the way through C schedule property for the last 20 years ending next before the institution of the original suit. In short, no reliance can be placed on the evidence of PW1 to prove easement right of way by prescription and the tribunal is fully justified in discarding the evidence of PW1. Besides the oral evidence of PW1, the only available evidence is Exts A1 and A2. Ext A1 is a title deed of A schedule property and A2 is the prior deed of Ext A1. The title deeds show the ownership of 'A' schedule property only. Thus, there is no other evidence to prove an easement right of way by prescription through 'B' schedule property.
12. The learned counsel for the appellant invited our attention to Exts A1 and A2 title deeds, which are the present and prior title deeds of A schedule property. It is submitted that in the schedule of Exts A1 and A2, the northern boundary is shown as pathway also. Ext A2 is the prior deed of 1977. Therefore, it can be safely concluded that the pathway was in existence on the northern side of plaint A schedule property from 1977 onwards, according to the learned counsel. We have closely examined the boundary schedule of Exts A1 and A2 . As rightly pointed out by the learned counsel for the revision petitioner, in the aforesaid 10 C.R.P.(Waqf).588 of 2014 schedule the northern boundary of A schedule property is shown as a 'way' and property comprised in Sy No.504. It is true that in schedule of both documents same description is shown as northern boundary and it includes a way. Coming to the instant case, as per the description, plaint C schedule, the pathway is one starting from the mid point of eastern boundary of B schedule property and slanting to the mid point of southern boundary of B schedule property. Therefore on a comparison of the description of the way shown as boundary in the property schedule of Exts A1 and A2 with description of the pathway shown as C schedule in the plaint, no inference can be drawn to the extent that the way mentioned as boundary in the schedule of Exts A1 and A2 document is the way described in C schedule of the plaint . That apart, admittedly, there is another pathway, which starts from the northern main road terminates on the north-eastern portion of plaint schedule property and that pathway is also being used for the egress and ingress to plaint schedule property. In view of the presence of this way at the northern side, it can never be held that the pathway shown as northern boundary in Exts A1 and A2 is the 'C' schedule pathway. Thus no purpose was served by the production of Exts A1 and A2 documents.
13. In the instant case, no independent witness was 11 C.R.P.(Waqf).588 of 2014 examined to prove the user of the way for the last 20 years as alleged by the plaintiff and the absence of an attempt to adduce independent oral evidence to prove an open and continuous enjoyment of a pathway for the last 20 years is fatal to the plaintiff's case. We have gone through Exts C1, C1(a) and C2 commission reports. Though Ext C1 is a report prepared by an advocate commissioner on the date of institution of the plaint itself and both parties were present at the time of inspection of the property. We have meticulously gone through the description of the pathway. The commissioner has not stated the approximate oldness of the pathway. But he has stated that the gate on the terminal point of C schedule pathway is an old one. Even if the entire statements in the commission report are taken as true and correct, no inference can be drawn from the said commission report alone to the effect that C schedule pathway is one which was being enjoyed openly, uninterruptedly as an easement for the last 20 years next before the date of visit of the commission.
14. More importantly, it has come out in evidence that subsequently after the purchase of plaint A schedule property, the plaintiff has purchased the properties which lie on the eastern and southern side of the plaint A schedule property. Now plaint A 12 C.R.P.(Waqf).588 of 2014 schedule property is not lying separately and A schedule property is also lying along with southern and eastern properties within a single compound wall. Further, it has also come out in evidence that another public road lies adjacent to the southern side of the large extent of property to which plaint A schedule property also forms a part. Another tiled road starting from the northern public road terminates on the north-eastern corner of the property to which plaint A schedule property also forms a part. When PW1 was examined, he admitted that there can be an access through other properties owned by the plaintiff to the plaint A schedule property. In view of the aforesaid evidence, which shows the probability of two other alternative access to plaint A schedule property, the burden was heavy on the plaintiff to prove that though there has been another two access, to the 'A' schedule property they have been using the C schedule pathway only as an easement for the last 20 years without any interruption. But as rightly observed by the tribunal, the plaintiff miserably failed to adduce at least minimum standard of evidence to prove the open and continuous enjoyment of the pathway, notwithstanding the length of period. In the above view, the tribunal is justified in finding that the plaintiff has failed to prove the easement right of way through 'C' schedule pathway as claimed by him in 13 C.R.P.(Waqf).588 of 2014 accordance with the statutory requirements. There is no illegality or impropriety in any of the findings, whereby the Tribunal dismissed the original suit.
15. The Civil Revision Petition (Waqf) is dismissed accordingly.
sd/-
K.HARILAL Judge sd/-
A.M.BABU Judge Mrcs/sks/13.6.2018