Kerala High Court
Sargis vs P.K. Sivadasan
Bench: V.Ramkumar, K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.RAMKUMAR
&
THE HONOURABLE MR.JUSTICE K.HARILAL
WEDNESDAY, THE 21ST DAY OF MARCH 2012/1ST CHAITHRA 1934
Ex.FA.No. 2 of 2006
-------------------
OS.212/1992 of ADDL.SUB COURT,PARAVUR
APPELLANT(S)/APPELLANT/1ST RESPONDENT:
--------------------------------------
SARGIS, AGED 55 YEARS,
S/O. ITTIMANI, KOCHAKKAL HOUSE, PAROOTHARA MURI
PARAVUR VILLAGE, PARAVUR TALUK.
BY ADV. SRI.DINESH R.SHENOY
RESPONDENT(S):
--------------
1. P.K. SIVADASAN, AGED 57 YEARS,
S/O. KUMARAN, PUTHENPURACKAL HOUSE, MALIANKARA
MOOTHAKUNNAM VILLAGE, PARAVUR TALUK.
2. KOCHUNNI, AGED 80 YEARS, S/O. IKKORAN,
PUTHENPURACKAL HOUSE, MALIANKARA
MOOTHAKUNNAM VILLAGE, PARAVUR TALUK. (DIED)
Addl. R3: Gopalakrishnan, S/o. Kochunni,
Puthenpurackal House, Maliankara, Moothakunnam P.O,
Addl. R4: Sunanda Balakrishnan, W/o. Balakrishnan,
D/o. Kochunni, Cheru Arumayil, Thazhekkad P.O.
Kuzhikkattussery, Thrissur District.
Addl. R5: Sushama Vijayan, W/o.Vijayan, D/o.Kochunni,
Moolakkaprambil House, Near Chiramukku Temple Road,
Irinjalakkuda
-2-
Addl. R6: Shylaja, W/o.Soman,
D/o. Kochunni, Kudilingal House, Thathappilly P.O.
Mannam Via.
Addl. R7: Muralikrishnan, S/o.Kochunni,
Puthenpurackal House,
Maliyankara P.O.
Addl. R8: Sunil, S/o. Kochunni,
Puthenpurackal House, Maliankara P.O.
( R2 died. R3 to R8 are impleaded as Addll. R3 to R8 as per order dated
13-03-2012 in I.A. No. 1516 of 2006)
For R1 Advs. Sri. Abraham George Jacob & Sri. P.R. Veketesh
03-2012, ALONG WITH
THIS EXECUTION FIRST APPEAL HAVINGTHE
EXFA. 3/2006, BEENCOURT
FINALLYON
HEARD ON 13-
21-03-2012
DELIVERED THE FOLLOWING:
V. RAMKUMAR
&
K. HARILAL, JJ.
........................................................
Ex. F.A. No. 2 & 3 of 2006
.........................................................
Dated: 21-03-2012
JUDGMENT
The appellant (Sargis) in Ex. F.A. 2 of 2006 is the plaintiff/decree holder in the suit O.S. No. 212 of 1992 on the file of the Addl. Sub Court, North Paravur. The decree holder challenges the order dated 23-12-2005 passed by the Court below partly upholding I.A. 1154 of 2001 which was a claim petition filed by the first respondent (P.K.Sivadasan) . As per the impugned order the Court below allowed delivery of the decree-schedule property through its western boundary wall but disallowed delivery through the eastern boundary wall and the alleged pathway claimed through the eastern boundary property belonging to the claim petitioner (P.K.Sivadasan). The decree holder challenges the latter part of the aforesaid order . The appellant in Ex. F.A. 3 of 2006 is P.K.Sivadasan referred to above and he challenges that part of the aforesaid order which has partly disallowed his claim by directing delivery through the western boundary wall of the decree schedule property.
2. We heard Advocate Sri. Dinesh R. Shenoy, the learned counsel appearing for the decree holder and Advocate Sri. Abraham George Jacob appearing for P.K.Sivadasan, the first respondent in Ex. F.A. 2 of 2006 and Advocate Sri. V.Rajendran, Perumbavoor , the learned counsel Ex. F.A. No. 2 & 3 of 2006 -:2:- appearing for P.K.Sivadasan, the appellant in Ex. F.A. 3 of 2006.
THE BACKGROUND FACTS
3. The undisputed facts leading to the impugned order are as follows:-
20-01-1978 One Kumaran and his brother Kochunni entered into Ext.R2 registered partition deed as per which two items of immovable properties described in the A schedule thereto were allotted to Kumaran and one item of property described in the B schedule thereto was allotted to Kochunni. The said properties are situated in Moothakunnam Village which was formerly Vadakkekkara Village. Item 2 of the A schedule allotted to Kumaran is 6 cents of land comprised in Sy. No. 64/11. The said plot has been identified as Plot B in Ext. C3 (a) plan submitted by the Advocate Commissioner (Sri. Ajayakumar.G.) appointed by this Court in Ex.F.A. 2 of 2006 . The said plan was prepared with the assistance of the Taluk Surveyor, N. Paravur. The property together with the ancestral house and described as the B- schedule to Ext.R2 partition deed, was allotted to Kochunni the younger brother. This property admeasuring 41 cents is identified as plot "C" in the above plan.
(Note: Eventhough the decree holder had filed objections to Ext.C3 (a) plan and Ext.C3 report submitted by the Advocate Commissioner on the ground that no attempt has been made to identify and demarcate the respective properties with reference to the title deeds as ordered by this Court, we do not find any merit in the said objection since this Court had also directed identification with the assistance of the Taluk Surveyor and that has been done. The properties as per the title deeds and as possessed by the parties and showing the survey demarcations have been clearly shown in Ext.C3 (a) plan together with its index).
A true copy of Ext.C3 (a) plan and index showing the respective properties are given below for easy comprehension:-Ex. F.A. No. 2 & 3 of 2006 -:3:- Ex. F.A. No. 2 & 3 of 2006 -:4:- Ex. F.A. No. 2 & 3 of 2006 -:5:-
Item 2 of the A schedule (to Ext.R2 partition deed ) allotted to Kumaran is described as follows:-
" 64 .
. (25 ) 43 . (6 ) .
(This property is identified as plot B in the above plan). This Kumaran has two sons, Sivadasan and Prakasan.
Boundaries
East - (This is plot "G" )
South- (i.e. Kumaran)
- This is plot A
( ).
West - - (This is plot "C" i.e.
decree schedule property)
North - - (This is plot "C" i.e.
decree schedule property)
B schedule ( in Ext.R2 partition deed ) allotted to Kochunni is described as follows:-
64 . .(25 ) 6
2-
. (19 )
.
( 15 ) 20-
. (7
) .
(41 )
.
Ex. F.A. No. 2 & 3 of 2006 -:6:-
This is the decree schedule property i.e. plot "C"
having approximately the shape of a hammer.
This property contains the ancestral house.
Boundaries
East - "" 2-
(i.e. the plot to the north of "Plot G"
and plot B)
South - 1- (i.e. Kumaran)
(i.e. plot A)
West -
North-
11-11-1982 As per Ext A2 registered sale deed, Sivadasan,
S/o.Kumaran purchased 15 cents of land (identified as "Plot G") lying to the east of plots C and B from one Jan. Muhammed Hani Issa Sait Charitable Trust. 10-09-1990 Kochunni to whom the B schedule ( plot "C" in Ext.
C3 (a) plan) in Ext.R2 partition deed was allotted, executed Ext.R1 agreement dated 10-09-1990 agreeing to sell the said property to Sargis, the appellant in Ex.F.A. 2 of 2006.
06-04-1992 Sargis instituted O.S. 212 of 1992 before the Court below inter alia for specific performance of Ext.R1 agreement .
In the said suit Kochunni the defendant inter alia contended that there was no agreement for sale of the property and that it was really a loan transaction and the document was executed only for securing repayment of the amount advanced by the plaintiff to the defendant and that there was no intention to convey the property including the ancestral house to the plaintiff 25-04-1995 The trial court dismissed the suit upholding the contentions of Kochunni Ex. F.A. No. 2 & 3 of 2006 -:7:- 29-08-1995 Sargis filed A.S. No. 561 of 1995 before this Court challenging the dismissal of his suit for specific performance.
09-02-2000 A Division Bench of this Court as per Ext. R3 judgment reversed the decree passed by the trial Court and allowed the appeal decreeing the suit for specific performance.
10-07-2000 S.L.P. Civil No.8664/2000 filed by Kochunni against the judgment of this Court was dismissed .
-2000 I.A. 1595 of 2000 filed by the plaintiff/decree holder for executing the sale deed through Court and for possession of the decree schedule property . 21-08-2011 The Addl. Sub Judge ordered delivery of the decree schedule property.
12-10-2000 I.A. No. 3876/2000 was filed before the trial Court
by RW4 Prakasan the younger son of Kumaran
styling himself as the Secretary of Vishnumaya
Kshethra Samithi and claiming that 20 cents out of the 41 cents comprising the decree schedule property is occupied by a Vishnumaya Temple (Chathan) which was dedicated to the public more than 100 years back and that the Vishnumaya Temple was not liable to be dispossessed from the 20 cents out of the decree schedule property in implementation of the decree passed in O.S. 212/1992.
20-02-2001 I.A. No. 3876 of 2000 dismissed by the court below. 20-03-2001 The objectors including RW4 filed Ex.F.A. 13 of 2001 before this Court against the order passed in I.A. No.3876/2000.
11-6-2001 A Division Bench of this Court passed Ext.R6 judgment dismissing Ex. F.A. 13 of 2001.
Ex. F.A. No. 2 & 3 of 2006 -:8:-21-01-2002 Decree holder Sargis filed I.A. 315 of 2002 stating that the matter stands posted for delivering the decree schedule property to him. He alleged that the building in the decree schedule property is likely to be purposely kept locked with a view to obstruct the delivery and that the Amin who attempted to effect delivery has reported that the decree schedule property is surrounded on all the four sides by compound walls and has returned the delivery warrant stating that it is not possible to enter the decree schedule property. The decree holder, therefore, prayed that in case the building in the property is kept locked it may be ordered to break open the lock and also to demolish the compound wall in case that is necessary for effecting delivery.
03-04-2002 I.A. NO. 315 OF 2002 was allowed by the Court below.
2002 I.A No.1154 of 2002 filed by Sivadasan ( elder brother of Prakasan), another son of Kumaran objecting to the decree holder taking possession of the decree schedule property alleging that he was the owner of the properties situated on the eastern, southern and western boundaries of the decree schedule property and that the boundary walls of the decree schedule property on the east, south and west belonged to him and no delivery should be effected by demolishing the said boundary walls.
1-7-2005 The Court below overruled the said objection of Sivadasan and directed delivery to be effected after demolishing the eastern boundary wall of the decree schedule property. It was, however, held that the question whether the decree holder was entitled to have access to the decree scheduled property through the eastern side as contended by him was to be got established in a separate suit.
13-07-2005 Ex.F.A. 31 of 2005 filed before this Court by Sivadasan against the dismissal of I.A. 1153 of 2002 Ex. F.A. No. 2 & 3 of 2006 -:9:- 7-09-2005 The order passed by the court below on I.A. 1154 of 2002 was set aside by this Court which directed the court below to consider whether there was a right of way for the original defendant (Kochunni) to enter the plaint schedule property through the eastern side and if such a right of way was existing and was available to the plaintiff/decree holder, then the Court could direct demolition of the compound wall on the eastern side and further direct delivery of possession to be effected without delay.
22-10--2005 After the remand from this Court the decree holder filed an additional counter affidavit alleging that even prior to Ext.R1 agreement for sale the access to the decree schedule property from the eastern public road was through a twelve feet wide pathway through the property of Kumaran and Chennoor family, that the said pathway leading towards west and reaching the property of Kumaran was then branching towards north and south respectively to the residential property of Kochunni i.e. the decree schedule property and the southern property of Kumaran openly, peaceably, as of right and as an easement to the knowledge of the Chennoor family and even after the partition in the family of Kochunni in the year 1978 the said pathway was in existence till the year 2001 when it was attempted to be changed and blocked by Kochunni in collusion with Prakasan and Sivadasan with a view to defeat the decree holder.
08-11-2005 Sivadas filed a reply affidavit objecting to the additional counter-affidavit filed by the decree holder. Sivadas inter alia contended that the claim of the decree holder that prior to the date of Ext.R1 agreement for sale the pathway was through the property of Chennoor family and Kumaran was baseless and incorrect, that on the eastern side of the decree schedule property there was no property of Chennor family or of Kumaran and that there was no pathway of 12 feet or any lesser width through the eastern property of Sivadas which earlier belonged to Ex. F.A. No. 2 & 3 of 2006 -:10:- Babu Sait. Sivadas also denied the alleged acquisition of any right of easement by open,or peaceful user through his property.
23-12-2005 The Court below passed the impugned order upholding the objection of Sivadasan with respect to the eastern and southern boundary wall but rejecting his contention with regard to the western boundary wall. It is the said order which is assailed in these appeals by Sargis the decree holder and Sivadasan the claim petitioner.
25-01-2006 As per the order passed in I.A. No. 224 of 2006 in Ex.F.A. No. 3 of 2006 this Court directed the Court below to effect delivery of the decree schedule property by demolishing the boundary wall, if necessary and then to reconstruct the broken wall. 01-02-2006 Delivery effected as ordered and the broken portion of the wall restored to its original condition. 3-08-2011 This Court in Ex.F.A. No. 2 of 2006 appointed an Advocate Commission for identifying the properties with survey assistance and directed the commissioner to demolish the eastern wall if necessary for the purpose of inspection and then to restore the demolished wall to its original condition at the expense of the decree holder.
21-10-2011 The Advocate Commission broke open the eastern wall at the southern end and after inspection restored the same to its original condition.
Decree holder's arguments in this appeal
3. Advocate Sri. Dinesh R. Shenoi, the learned counsel appearing for the decree holder made the following submissions before us in support of his appeal namely, Ex.F.A. 2 of 2006:-
Kochunni, the judgment debtor and his relatives were throughly displeased by the Judgment and decree passed by this Court reversing the verdict of the trial court. They unsuccessfully Ex. F.A. No. 2 & 3 of 2006 -:11:- attempted a Special Leave Petition before the Supreme Court against the decree for specific performance passed by this Court. Thereafter, all of them conspired together and it was a joint and separate attempt made by them to see that the decree holder does not enjoy the fruits of the decree. As per the subsequent judgment dated 7-09-2005 passed by this Court in Ex.F.A. No. 31 of 2005 the Court below was directed to consider whether there was a right of way for Kochunni the original defendant to enter the plaint schedule property through the eastern side from the Paravoor-Mallayankara main road. The contention of Sivadasan in Ex.F.A. No. 31 of 2005 was that without deciding the question as to whether the judgment debtor had any right of way to the decree schedule property, no delivery should be effected. The said contention was upheld by this Court. It is , therefore, idle for Kochunni and his elder brother Kumaran or their children to contend that they had no way to enter the plaint schedule property (decree schedule property) which was their own ancestral property with the ancestral house thereon. The decree schedule property ( plot "C" in Ext. C3 (a) plan) and the properties located at its boundaries all belonged to a single owner once and upon severance of tenaments, Kochunni had certainly an easement of necessity to reach the decree schedule property which was allotted to him under Ext.R2 partition deed 20-1-1978. plot "C" was the dominant tenament for the sharers who must have been passing through the eastern "Plot G" to reach the Paravoor-Mallyankara public road. Even though "Plot G" belonged to a charitable Muslim trust, it was agreed to be sold Ex. F.A. No. 2 & 3 of 2006 -:12:- to Kumaran as recited in Ext.A2 sale deed dated 11-11-1982 as per which Sivadasan purchased the said "Plot G" from the above Trust. By referring to Kumaran's property and Chennor's property through which the ancient pathway was passing, the decree holder in his additional counter affidavit was really mentioning about "Plot G" and its northern plot. "Plot G" was in the possession of Kumaran under the agreement for sale recited in Ext.A2 sale deed. Section 13 (a) of the Indian Easements Act, 1882, envisages that an easement can be had in respect of another property of the transferror. It is only under the transfer of Property Act that a partition is not treated as a transfer. But the word "transfer" under Section 13 (a) of the Easements Act should receive a wider interpretation so as to include even a partition . In any view of the matter, the evidence adduced by the decree holder has clearly established that there was a 13 feet wide way through "Plot G" to reach plot "C". Besides RW1 (the decree holder), RWs 5 to 8 have all testified about the old pathway straight from the Moothakunnam-Mallyankara public road to the west passing through "Plot G" now belonging to Sivadasan (and formerly belonging to the Charitable Trust) and reaching the south-eastern corner of plot "C". RWs 6 and 8 have deposed that the said pathway was in existence as far as their memory goes. They have not been cross-examined on the above aspect. When there is no cross-examination on a particular aspect , then it will be deemed to have been admitted.
An omnibus suggestion to that witness that he is speaking falsehood will not suffice. (Vide Velu Pillai Padakalingam v.
Ex. F.A. No. 2 & 3 of 2006 -:13:-Paramanandam Yesudasan- 1953 KLT 587). Strict rules of pleading should not be insisted upon in the matter of an easement of right of way (See para 26 of Sree Swayam Prakash Ashramam and Another v. G. Anandavally Amma and Others - 2010 (1) KHC 232 SC). The Indian Easements Act, 1882 is not exhaustive. Easements can be had on lost grant which is outside and in addition to Sec. 15 of the said Act. (Vide page 271 of the 12th Edition of Kattiyar on Easements). It is true that for bringing home a plea of prescriptive easement, the user must be as of right. But, if the defendant has not taken the plea of permissive user, then he cannot thereafter be permitted to raise such a plea. (Vide Ramesh Cahndra Panda and Others v. Lambodar Panda and Others - AIR 1960 Orissa 95; Gayadhar Nayak and Others v. Bhagaban Rout and Others - AIR 1963 Orissa 155 and Jagabandhu Sahu and Others v. Bipin Jena and Others - AIR 1971 Orissa 219).
JUDICIAL RESOLUTION
4. We are afraid that we are unable to accept the above submissions made on behalf of the decree holder. It is true that the decree for specific performance was passed by this Court in appeal and the Apex Court was not inclined to entertain the Special Leave Petition filed by the judgment debtor against the decree passed by this Court. It is also true that the trial Court which had originally dismissed the suit, had upheld the contention of Kochunni, the judgment debtor that the transaction was really a Ex. F.A. No. 2 & 3 of 2006 -:14:- loan transaction and the agreement was executed as a security for the said loan transaction. But the said contention did not find favour with this Court. It cannot, however, be forgotten that Ext.R1 agreement dated 10-09-1990 contains a schedule in which the 19 cents of property agreed to be sold thereunder is described very elaborately. But neither the schedule nor the body of the document makes mention of any access or right of way to the scheduled property. There is no dispute that the descriptions of the plaint schedule and the decree schedule also do not make mention of any such access or way to the property detailed therein. It is admitted before us that delivery of possession of the property which the decree holder sought before the Court below was also the same property which does not provide for any way for ingress and egress to the same. What is to be delivered over to the decree holder as per the decree is only the aforesaid 19 cents of property and it does not include any access or way leading to the said property. It cannot be assumed that the decree holder who is an Advocate by profession was not entering into the transaction with open eyes. The grievance of the decree -holder when he filed I.A.No. 315 of 2002 was that the Amin who attempted to effect delivery had reported that the decree schedule property was surrounded on all the four sides by boundary walls and therefore it was not possible to enter the decree schedule property for effecting delivery of the property to the decree-holder. The court below on 1-7-2005 when it overruled the objection of Sivadasan in I.A. No. 1154 of 2002 and directed demolition of the eastern boundary wall, it was only for the purpose of effecting delivery of the 19 cents of decree Ex. F.A. No. 2 & 3 of 2006 -:15:- schedule property which the decree-holder was entitled to be put in possession. As for his claim that he was entitled to have access to the property through the eastern side, the trial court had relegated him to a separate suit. That was why, when this Court on 7-09-2005 disposed of Ex.F.A. No. 31 of 2005, the Court directed the Court below to consider whether there was a right of way for the original defendant to enter the decree schedule property through the eastern side and in that case only the Court below could direct demolition of the eastern compound wall and then direct delivery of possession of the property to the decree holder. The operative portion of the judgment dated 7-09-2005 of this Court reads as follows:-
"Therefore, we set aside the order passed by the court below and direct the court below to consider the question whether there was a right of way for the original defendant to enter the plaint schedule property through the eastern side. If the right of way was existing and is available to the present plaintiff/decree holder then the court below will direct demolition of the compound wall on the eastern side and further direct the delivery of possession to be effected without delay".
That was why, even after the remand by this Court, when the court below as per the impugned order dated 23-12-2005 did not permit demolition of the eastern compound wall, this Court on 25- 1-2006 ordered delivery of the decree schedule property by demolishing the boundary wall, if necessary and directed Ex. F.A. No. 2 & 3 of 2006 -:16:- reconstruction of the demolished portion after effecting delivery. Accordingly, on 1-2-2006 the Court below effected delivery after providing access to the Amin to enter the property by demolishing a portion of the eastern boundary wall then restoring the demolished portion of the wall to its original condition. Thus, as on 1-2-2006 the decree stands executed fully and nothing further remains to be done. In that view of the matter, the question as to whether there was a right of way for Kochunni, the original defendant/judgment debtor to enter the plaint schedule property through its eastern side, does not now survive for consideration.
5. Even assuming that the above question regarding the right of way survives for consideration notwithstanding the fact that the decree schedule property has been delivered over to the decree holder on 1-2-2006, we are afraid that the decree holder has miserably failed to prove the right of way set up by him.
6. We will first consider the contention regarding easement of necessity now urged before us. In the first place, there was no such plea regarding easement of necessity taken even in the additional counter affidavit dated 22-10-2005 filed by the decree holder after the remand by this Court in Ex.F.A. 31/2005. Secondly, the learned counsel for the appellant is factually not correct in submitting that all these properties belonged to one owner and there has been severence of tenaments giving rise to an easement of necessity under Section 13 of the Indian Easements Act, 1882. While the decree schedule Ex. F.A. No. 2 & 3 of 2006 -:17:- property which is plot "C" and its southern properties namely, plots "B" and "A" could be said to have belonged to the family of Kochunni & Kumaran, the eastern plot namely plot "G" through which the right of way is claimed admittedly belonged to a Muslim Charitable Trust by name Haji Issa Trust . It was from the said Trust that Sivadasan purchased plot "G" under A2 sale deed dated 11-11-1982. Hence, the sale of plot "G" by the Trust to Sivadasan cannot bring about a severance of tenament under the same owner so as to give rise to an easement of necessity to Kochunni the defendant/judgment debtor or to the decree holder. Ext.A2 sale deed does not contain even a whisper regarding the existence of any way through plot "G" to the decree schedule property i.e. plot "C".
7. What now survives for consideration is the claim of the decree holder by way of easement by prescription through plot "G". RW1 (Sargis) is none other than the decree holder himself who claims to have agreed to purchase the decree schedule property as per Ext.R1 agreement for sale dated 10-09-1990. In Para 4 of his proof affidavit RW1 would say that the pathway to the decree schedule property was situated to the south of the temple property. The temple property is situated to the north of "Plot G" and further to its north lying comprised in Survey 64/25. At para 12 of his proof affidavit RW1 would say that the decree schedule property was lying contiguous to the property allotted to Kumaran under Ext.R2 partition deed and the pathway which was in existence for more than 40 years was proceeding eastwards from the above Ex. F.A. No. 2 & 3 of 2006 -:18:- properties through the property of Chennoor to reach the public road on the east and that was the pathway which was used by Kochunni the Judgment debtor and his family members and predecessors. There is no dispute that Chennoor's property is the property lying to the north of "Plot G" and is at present owned by the Kannayangatt Bhagavathi Temple . If the pathway over which a prescriptive easement is claimed was passing through the property of Chennoor which is more probabilised by the existence of a gate towards the northern portion of the eastern boundary wall of plot "C", the said pathway cannot be passing through any portion of "Plot G" belonging to Sivadasan. RW2 (M.S. Bhasi) was the Advocate Commissioner who proved Exts. R7 and R7(a) plan and report filed by him in a suit instituted as O.S. 347/2001 by Prakasan and Others. RW3 (C.K. Santhosh) was the Court Amin who had accompanied the decree holder for effecting delivery in the year 2000 and who was allegedly obstructed by Sivadasan. He also deposed that from the public road they proceeded westwards through a vacant plot to reach a gate near the Kannenngatt Temple and he cannot deny the suggestion that the said vacant plot belongs to the aforesaid temple. The evidence of this witness also goes to show that the pathway was situated in the vacant plot lying to the north of "Plot G" and there was a gate towards the north of the eastern boundary wall of the decree schedule property ( plot "C") for entering into the property. RW4 (Prakasan) is none other than the younger brother of Sivadasan . His testimony even in the chief examination was that access from the decree schedule property to the public road on the east was Ex. F.A. No. 2 & 3 of 2006 -:19:- through the northern property belonging to the Kannenangatt Bhagavathy Temple and that and that there was no gate towards east of the property described as A schedule in Ext.R2 partition deed. Inspite of the above testimony given by this witness no permission was sought under Sec. 154 of the Evidence Act to put questions which might be put in cross-examination by the opposite party. In other words, this witness was not declared hostile by the decree holder and hence, the testimony of this witness which was against the contentions of the decree holder, cannot be disowned by the decree holder. R.W.5 (George) is a businessman who allegedly had transactions with Kochunni. He would say that the old pathway was on the south and Kochunni and his family members were using the said way for ingress and egress. He does not mention the exact track of the said way and deposed that when the old fence was replaced by compound wall, the way was obstructed and the present way is through the property of Chennoor and there is a gate there on the eastern boundary of " plot "C"". He admitted that he had been to Kochunni's house only once. Eventhough he claimed to know the place from 1992 onwards he confessed that he had not been to the property after 1992. He stays at Edavanakkad which is far away from the decree-schedule property. He also admitted that he does not know the owner of the property on the west of the main road and also does not know whether the said property belongs to the temple people. RW6 (Mohandas) is a person who claims to have been going frequently to the Kannengatt Temple for drumming. According to him he was born and brought up in that Ex. F.A. No. 2 & 3 of 2006 -:20:- area. Going by his chief - examination by way of proof affidavit, access to Kochunni's house from the public road was through a way passing through an open land and the said way was touching Kochunni's property at the south-eastern corner to the north of a pond, that the said way was having a width of 10-12 feet and it was in existence ever since his memory and that about 4 or 5 years ago a compound wall was constructed blocking the said way. This witness was examined on 4-11-2005. During his cross- examination he admitted that he is residing at Kottuvalli, which is a far away place. He further admitted that it was not necessary for him while attending the temple to go to the houses of Kochunni or Kumaran and that he has not been to those houses. He also confessed that he does not know the boundaries of Kochunni's property and whether the eastern boundary wall of Kochunni's property belongs to the temple. This witness also did not mention about any well defined track. RW7 (Mani) is a coconut climber who had accompanied the Amin and the decree holder on two occasions for effecting delivery. As per his proof affidavit they went in a trekker jeep and entered the decree schedule property through an opening in the old fence at the south eastern corner along a pathway which was about 10 feet wide. One year thereafter, he again accompanied the Amin to the decree schedule property and at that time there was a compound wall along the eastern boundary . In cross-examination this witness would say that the pathway was at the northern end. RW7 also did not mention about any well defined track and during his cross examination he shifted the way to the northern end. RW8 (Balan) is a broker and signatory Ex. F.A. No. 2 & 3 of 2006 -:21:- to Ext.R1 agreement. Except deposing that there was a way through the eastern plot of Kochunni's property reaching the south-eastern corner of Kochunni's property this witness also did not mention about any well-defined track of way passing through "Plot G". In cross-examination he admitted that he was residing at Palakkad for the past 8 years . According to him the pathway having a width of 13 feet was passing through the property of Chennoor family (which is the plot situated to the north of "Plot G" ) and the property of Kumaran (which is plot B) . If this was the old pathway , then the same could not reach the south-eastern corner of plot "C" which is the decree-schedule property. An attempt was made to make it appear that Kumaran's property mentioned by the decree-holder and some of the witnesses is not plot A or plot B but it was "Plot G". To butress the above attempt it was argued that Ext.A2 sale deed of "Plot G" in favour of Sivadasan makes mention of Kumaran having paid some advance to the Hani Issa Charitable Trust. But it is admitted that "Plot G" continued to be in the possession of the Trust and Sivadasan was given possession of "Plot G" by the Trust only on 11-11-1982 when Sivadasan purchased "Plot G" from the Trust people as per Ext.A2 sale deed. Hence, the attempt to refer to "Plot G" as the property of Kumaran is only a desperate attempt to wriggle out of the fatal admission made.
8. The oral evidence adduced by the decree holder does not prove the existence of any well defined pathway ,much less, any user over the same for more than the statutory period, Ex. F.A. No. 2 & 3 of 2006 -:22:- uninterruptedly and as of right. A claim of prescriptive easement is a precarious right claimed by the owner of the dominant heritage over somebody else's property called the servient heritage. Hence courts are generally slow in upholding such a right unless there is clear pleadings and clinching evidence. (See Ibrahimkutty v. Abdul Rahmankunju - 1992 (2) KLT 775). After a careful reappraisal of the oral and documentary evidence in the case, we are fully convinced that the decree holder has failed to prove the requirements of an easement by prescription as laid down by this Court in Maniyan Krishnan v. Nanukuttan - AIR 1986 Kerala 75 = 1986 KLT 203. As rightly observed by the court below the decree holder has not succeeded in establishing by credible evidence that there existed a well defined pathway through "Plot G" which belonged to the charitable Trust of Haji Issa Sait or that there was user over the said pathway for having ingress and egress to the decree schedule property ( plot "C" ) for more than the statutory period of 20 years. The court below was, therefore, fully justified in holding that there was no access available to Kochunni, the judgment debtor through the eastern side so as to enure to the benefit of the decree holder. The impugned order passed by the court below to that extent does not call for any interference and is accordingly confirmed. Ext.F.A. 2 of 2006 will consequently stand dismissed .
9. But the court below was not justified in holding that the decree holder has a way through the western side of the decree schedule property . Ext.C3 report of the Advocate Commissioner Ex. F.A. No. 2 & 3 of 2006 -:23:- shows that further to the west of the decree schedule property there is the house of Sunil (8th respondent in Ex.F.A. 3 of 2006). The said Sunil is the son of Kochunni. The above finding regarding the alleged way through the western boundary as recorded by the court below was really beyond the scope of the remand order passed by this Court. In Ex.F.A. 31 of 2005 the Court below was directed to consider whether there was a right of way for the original defendant Kochunni to enter the decree- schedule property through the eastern side. It is true that Sivadasan claimed that he is the owner of the properties including the boundary walls on the eastern and southern and western side of the decree schedule property. But then, since the remand order by this Court directed consideration of the existence of a right of way only through the eastern boundary, it was not open to the Court below to hold that the decree holder can have an access through the western boundary. No doubt, the western boundary of the decree schedule property both in Ext. R1 agreement for sale as well as in the decree is the river . In other words, the decree schedule property extends up to the river on the west . But the Commissioner had noted in paragraph A4 of Ext.C3 report dated 21-11-2011 that in between the river and the decree schedule property there is the property of Sunil (R8) who has also put up a house thereon. Even assuming that the remand order of this Court permitted the court below to examine whether there was any access for the decree holder through the western boundary , there was intrinsic evidence to show that there was no such access through the western boundary. Hence, Ex.F.A. 3 of 2006 filed by Ex. F.A. No. 2 & 3 of 2006 -:24:- Sivadasan the claim petitioner alleging that the court below misdirected itself in recording a finding regarding the western boundary is only to be allowed and we do so. That part of the impugned order which has allowed delivery of the decree- schedule property through the western boundary wall is hereby set aside. Since , pending these appeals the decree schedule property has already been delivered over, the question as to whether the original judgment debtor was having any right of way to the decree schedule property through the eastern property (plot "G") belonging to Sivadasan, is really beyond the scope of the present suit.
OUR CONCLUSION In the light of the foregoing discussion, Ex.F.A. 2 of 2006 filed by the decree holder is dismissed and Ex.F.A. 3/2006 filed by the claim petitioner/Sivadasan is allowed as above. In the circumstances of the case, the parties are directed to bear their respective costs.
Dated this the 21st day of March, 2012.
V. RAMKUMAR, JUDGE.
K.HARILAL, JUDGE