Kerala High Court
Sasi vs Aravindakshan Nair on 9 March, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
FRIDAY, THE 9TH DAY OF MARCH 2012/19TH PHALGUNA 1933
RSA.No. 345 of 2012 ()
----------------------
AS.149/2008 of ADDL.DISTRICT COURT,ALAPPUZHA.
OS.518/2003 of ADDL.MUNSIFF COURT, ALAPPUZHA
APPELLANT(S)/APPELLANTS/PLAINTIFFS:
-----------------------
1. SASI,
S/O.MADHAVAN,DEVASWOM KALATHIL,THEKKEKARA MURI,
CHAMPAKULAM VILLAGE,KUTTANAD TALUK, ALAPPUZHA DISTRICT.
2. SHAJI,
S/O.MADHAVAN,DEVASWOM KALATHIL,THEKKEKARA MURI,
CHAMPAKULAM VILLAGE,KUTTANAD TALUK,
ALAPPUZHA DISTRICT.
3. BEENA,
W/O.KRISHNAMOORTHY,DEVASWOM KALATHIL,THEKKEKARA MURI,
CHAMPAKULAM VILLAGE,KUTTANAD TALUK, ALAPPUZHA DISTRICT.
4. SHYAM KUMAR,.
S/O.KRISHNAMOORTHY,DEVASWOM KALATHIL,THEKKEKARA MURI,
CHAMPAKULAM VILLAGE,KUTTANAD TALUK, ALAPPUZHA DISTRICT.
5. NIMMY,
D/O.KRISHNAMOORTHY,DEVASWOM KALATHIL,THEKKEKARA MURI,
CHAMPAKULAM VILLAGE,KUTTANAD TALUK,ALAPPUZHA DISTRICT.
BY ADVS.SRI.P.KESAVAN NAIR
SRI.K.G.CLEETUS
RESPONDENT(S)/RESPONDENT/DEFENDANT:
------------------------
ARAVINDAKSHAN NAIR,
S/O.SREEDHARAN PILLAI,MOTTITHARA(SARASWATHY NIVAS)
THEKKEKARA MURI,CHAMPAKULAM VILLAGE,KUTTANAD TALUK,
DISTRICT ALAPPUZHA .P.O,CHAMPAKULAM,PIN-688505.
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
09-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P. JOSEPH, J.
--------------------------------------
R.S.A. No.345 of 2012
--------------------------------------
Dated this the 9th day of March, 2012.
JUDGMENT
Plaintiffs in O.S.No.518 of 2003 of the court of learned Munsiff, Alappuzha are aggrieved by concurrent verdict against them negativing their claim of easement by way of prescription over item No.4, the disputed pathway.
2. According to the appellants/plaintiffs, item Nos.1 to 3 belonging to them lie together as a compact plot and access to item Nos.1 to 3 from the AC road on the south is through item No.4 having a width of five feet and length of 45 metres and running along eastern portion of property of the respondent/defendant. It is the further case of appellants that they were using item No.4 for the last 95 years, there is no other means of access to item Nos. 1 to 3 and that they have acquired a right of easement by prescription.
3. Respondent contended that the property belonging to him, his sister and wife were all paddy fields and were re-claimed sometime during 1995-
98. Before that, respondent and others were using country boats to reach their house. Appellants are using the way along property of 1st appellant which abuts AC road, going along the valu chira on the north of property of respondent. Respondent also stated that the said way is described in the earlier documents of title of the appellants and that purposely those title deeds are not produced. He denied existence of the disputed way.
RSA No.345/2012 2
4. Appellants examined PWs 1 to 4 and proved Exts.A1 and A2. Ext.A1 is the partition deed dated 01.03.1999 between the appellants. They did not produce their prior documents of title (which according to the respondent would indicate that they have other access to the property). Respondent examined DWs 1 to 3 and proved Exts.B1 to B4. Exts.C1 to C2(b) are the reports and sketches prepared by the Advocate Commissioners (PWs 3 and 4).
5. From the evidence, trial court concluded that claim of easement by way of prescription is not established. Trial court was of the view that evidence of PWs 1 and 2 cannot be relied upon. Trial court observed that though item Nos. 1 to 3 are seen partitioned between the appellants as per Ext.A1, boundary description would show that the said properties are lying as a single plot. Trial court also found that from the report of the Advocate Commissioners that 1st appellant has property on the immediate north of the AC road, abutting the said road and touching item Nos.1 to 3 through which appellants could gain access to their respective properties. Trial court held that though according to the appellants disputed way was in their use for access from the AC road on the south for 95 years, the said road was formed only in the year, 1964. A further finding that the trial court has made is that though, it is not necessary while a plea of easement by way of prescription is set up that the dominant owner should implead all the servient owners, here is a case where, going by the evidence of respondent, adjoining the 13 cents he owns, his wife and sister also own certain items of land and all of them have constructed fence on the eastern side (otherwise negativing the claim of appellants for right of RSA No.345/2012 3 access). But in spite of that, wife and sister of the respondent are not impleaded in the suit. Consequently the suit was dismissed. The first appellate court has confirmed the finding entered by the trial court.
6. Learned counsel has contended that even if other access is available that will not defeat the claim of easement by prescription. It is contended that evidence of PWs 1 and 2 have been brushed aside by the trial court for no valid reason. According to the learned counsel, one of the Advocate Commissioners has reported the oldness of the disputed way as 45 years while the other Commissioner stated that without assistance of a soil expert he is unable to speak about oldness. Learned counsel submits that assessment of oldness made by the Advocate Commissioner as 45 years can be accepted.
7. Courts below on the evidence found against the claim of easement by way of prescription. Though appellants contended that they are using the disputed way for 95 years, it came out in evidence that even the AC road came into existence only in the year, 1964. Version of appellants that they were using the disputed way for 95 years is disproved. So far as the user for the statutory period is concerned, true that PWs 1 and 2 stated so. Trial and first appellate courts were not inclined to accept the evidence of PWs 1 and 2. It has also come out in the evidence of PWs 1 and 2 and Ext.B3 that there are fencing on all sides of the property of defendant, his sister and wife and when they wanted to replace it by installing concrete poles appellants instituted the suit. RSA No.345/2012 4
8. A further fact which I must notice is that though the appellants did not mention (which they ought to have done in fairness), the 2nd Commissioner has reported that abutting the AC road, 1st appellant owns property and that leads upto item Nos.1 to 3. In this connection I must bear in mind that contention of respondent that along the valu chira abutting the property of 1st appellant on the immediate north of the AC road, there is access to the appellants. No doubt, existence of the alternate way will not defeat the claim of easement by prescription. In this connection I must also notice the contention of the respondent that the original documents of title of appellants would show that their access was through the property of 1st appellant abutting the AC road and that document has been suppressed. It is relevant to note that appellants produced only Ext.A1, partition deed of the year, 1999 and not the prior documents of title. In these circumstances I do not find justification in reconsidering the findings of courts below. Nor am I impressed that there is any substantial question of law involved requiring admission of the Second Appeal.
Second Appeal is dismissed.
All pending interlocutory applications will stand dismissed.
THOMAS P.JOSEPH, Judge.
cks