P.T.Johny vs Khadi And Village Industries ...
2021 Latest Caselaw 12940 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
            THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
     TUESDAY, THE 15TH DAY OF JUNE 2021 / 25TH JYAISHTA, 1943
                       RSA NO.651 OF 2020


     AS 35/2019 OF DISTRICT COURT, ALAPPUZHA, DTD.06.07.2020


 O.S.No.790/2015 ON THE FILE OF THE ADDITIONAL MUNSIFF'S COURT,
                    ALAPPUZHA DTD.26.2.2019
APPELLANT/APPELLANT/PLAINTIFF:

          P.T.JOHNY,
          AGED 54 YEARS,
          S/O.P.P.THOMAS, PALLIPARAMBIL VEEDU,
          PUNNAPRA.P.O, ALAPPUZHA.

          BY ADVS.
          SRI.S.SANAL KUMAR
          SMT.BHAVANA VELAYUDHAN


RESPONDENTS/RESPONDENTS/DEFENDANTS:

    1     KHADI AND VILLAGE INDUSTRIES BOARD,
          REPRESENTED BY ITS SECRETARY,
          OFFICE OF KHADI AND VILLAGE INDUSTRIES BOARD,
          VANCHIYOOR , THIRUVANANTHAPURAM 695 001.

    2     THE PROJECT OFFICER,
          KHADI AND VILLAGE INDUSTRIES BOARD, DISTRICT KHADI
          BOARD OFFICE, NEAR MUNICIPAL STADIUM,
          ALAPPUZHA 688 001.

            BY ADV SRI.N.RAJAGOPALAN NAIR, SC,
          KERALA KHADI AND VILLAGE INDUSTRIES BOARD


THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
31.3.2021, THE COURT ON 15.06.2021 DELIVERED THE FOLLOWING:
 R.S.A.No.651 of 2020

                              2




                        JUDGMENT

The plaintiff in O.S.No.790 of 2015 on the file of the

Additional Munsiff's Court, Alappuzha is the appellant. The

defendants are the respondents. The appellant instituted

the suit seeking a decree of permanent prohibitory

injunction restraining the defendants from constructing

compound wall on the Northern boundary of plaint

schedule item No.2 property, blocking the passage and

vehicular traffic of the plaintiff through the plaint schedule

item No.3 property, or obstructing the same in any

manner. According to the plaintiff, the plaintiff is the owner

in possession of plaint item No.1 property pursuant to the

settlement deed No.948/2010 of Alappuzha Sub

Registrar's Office. The plaint schedule item No.2 property

is admittedly the property owned and possessed by the R.S.A.No.651 of 2020

defendants 1 and 2. The 1st defendant is the Khadi and

Village Industries Board and the 2nd defendant is its Project

Officer respectively. The plaint item No.3 is described as a

way available through the plaint schedule item No.2

property having a width of 3.5 metres and length of 40

metres starting from the gate situated in front of the

residential building of the plaintiff on the Northern

boundary wall of plaint item No.1 property. The plaintiff

asserted that the plaint schedule item No.3 pathway is the

only way available to the plaintiff to reach Punnapra

Market Junction-Beach Road and the plaintiff has perfected

right of easement by prescription over the same.

Apprehending obstruction of the way, the plaintiff has filed

the suit.

2. The defendants 1 and 2 entered appearance and

filed written statement admitting title and possession of R.S.A.No.651 of 2020

the plaintiff over plaint schedule item No.1 property.

However, the plaint schedule item No.3 pathway described

in the plaint through plaint item No.2 property is denied.

They have contended that they had constructed a road

through plaint item No.2 property for transporting raw

materials and finished goods from the Khadi Unit in the

plaint schedule item No.2 property. They have further

contended that the plaintiff has an alternative pathway for

ingress and egress and this suit is experimental in nature.

3. During the trial, PWs.1 and 2 were examined on

plaintiff's side and marked Exts.A1 to A4. Ext.B1 was

marked on the side of the defendant. Ext.C1 series were

marked as Court Exhibits.

4. The learned Munsiff, on the evidence of PW1,

PW2, Exts.A1 to A4 and Ext.C1, rejected the case of the

appellant that plaint item No.3 schedule property does not R.S.A.No.651 of 2020

come within the purview of easement right as

contemplated under Section 15 of the Easements Act and

the plaintiff has failed to prove the right claimed by him.

The suit was therefore dismissed. The appellant challenged

the decree and judgment before the District Court,

Alappuzha in A.S.No.35/2019. The learned District Judge

on re-appreciation of the evidence confirmed the findings

of the learned Munsiff and dismissed the appeal. It is

challenged in this R.S.A.

5. Heard Sri.S.Sanal Kumar, the learned counsel for

the appellant and Sri.N.Rajagopalan Nair, the learned

Standing Counsel for the respondents.

6. The learned counsel for the appellant submitted

that the existence of plaint schedule item No.3 pathway

has been established as per Ext.B1 deed supported by the

oral evidence of PWs.1 and 2. It is contended that the R.S.A.No.651 of 2020

plaint schedule item No.3 pathway is the only pathway to

the house of the plaintiff in the plaint schedule item No.1

property. It is further argued that even if no right of

easement by prescription is proved, the existence of a

pathway and its user as a matter of right for a long period

is sufficient to invoke the principle of doctrine of lost grant

in this case. Relying on Secretary of State for India in

Council v. Maharaja of Bobbili [Laws (PVC) 1919 7 154

Privy Council], Raja Braja Sundar Deb & another v.

Moni Behara and others [AIR (38) 1951 SC 247], Braja

Kishore Jagdev v. Lingraj Samantaray & Others

[(2000) 6 SCC 540] and Varghese v. Jose Mathew

[2014 (3) KLT 1065], the learned counsel for the appellant

contended that although the plaintiff failed to prove

prescriptive right of easement in the land belonging to the

defendants, he is legally entitled to claim such right by R.S.A.No.651 of 2020

long user on the basis of a presumed grant provided there

is no prejudice to the defendants in the case.

7. The learned counsel for the defendants pointed

out that the definite plea was one of easement by

prescription under Section 15 of the Easements Act though

the necessary ingredients to attract the provisions are

absent in the case. Hence, the learned counsel for the

defendants submitted that the plaintiff cannot set up a

different case at the second appellate stage to defeat the

contentions of the defendants.

8. In paragraph 5 of the plaint, the plaintiff

asserted as follows:-

"The plaintiff and his family, in continuation with his predecessors in interest are using the plaint schedule item No.3 road as a pathway as well as for plying vehicles to reach the northern road, openly, uninterrupted by anybody "as of right for more than 50 years, as a prescriptive right. The R.S.A.No.651 of 2020

plaintiff has no other way except the plaint scheduled item No.3 property to reach the Punnpra market junction Beach road on the north. The plaintiff and his family members are using the plaint schedule item No.3 property for vehicular traffic for a long period without any interruption from any body."

9. It is clear from the pleadings that the plaintiff

claimed easement by prescription over the plaint schedule

item No.3 pathway. However, in paragraph 6 of the plaint

it is averred that the plaint schedule item No.3 pathway

was constructed by the predecessor of the plaintiff with

the consent and concurrence of the prior owners of the

property solely for the usage of the plaintiff and his

predecessors. When the plaintiff, who was examined as

PW1 before the trial court, stated that he has been using

plaint schedule item No.3 pathway with the permission of

the prior owner. It is a fact that the plaint schedule item R.S.A.No.651 of 2020

No.3 pathway has been identified by the Commissioner in

Ext.C1 report. However, the defendants 1 and 2 denied the

claim of easement right over plaint schedule item No.3

pathway. Admittedly, the defendant is the owner in

possession of plaint schedule item No.2 property. It is clear

that the pleadings in the case are not specific or precise.

The plea is not sufficient to highlight the particular

easement claimed by the plaintiff. It is a fact that having

failed to prove the necessary ingredients to attract Section

15 of the Easements Act, the plaintiff has set up a

different case at the second appellate stage. There is no

evidence adduced by the plaintiff to prove that the plaint

schedule item No.3 pathway was formed by the

contribution of land by both parties.

10. With regard to the right of easement by

prescription, both the courts below have concurrently R.S.A.No.651 of 2020

found against the plaintiff. Ordinarily, the court can find a

case and decide the case only on the basis of the pleadings

of the parties. In a case where the claim is for an

easement right, it is all the more necessary that the

pleadings should be specific and precise. It is settled law

that the easement right is a precarious right claimed over

the property of another.

11. An easement right is not one of the ordinary

rights of ownership. Hence, the plaintiff is obliged to plead

the nature of his title thereto so as to clearly show the

origin of the right, whether it arises by statutory

prescription, or express or implied grant, or the old

common law method of a lost grant. If the right of

easement is a precarious right claimed over the property

of another, it is highly essential that the pleadings should

be precise. On a careful reading of the plaint in this case, R.S.A.No.651 of 2020

it is clear that the plaintiff failed to specifically plead the

easement claimed by him. The issue of lost grant pleaded

first time in second appeal was not raised before the trial

court. In fact, no pleading was advanced for the said

purpose. The trial court and the first appellate court

concurrently entered a finding that the plaintiff failed to

prove the following ingredients to attract a claim of

easement by prescription:-

            i)     a pre-existing easement having

            been enjoyed by the dominant owner;

            ii)    peaceably;

            iii)   as an easement;

            iv)    as of right;

            v)     openly;

            vi)    for 20 years; and

            vii) without interruption
 R.S.A.No.651 of 2020

12. So far as doctrine of lost grant is concerned, the

plaintiff failed to set up such a plea before the trial court.

On the basis of the evidence adduced, the courts below

negatived the contentions of the plaintiff.

13. In a second appeal, the jurisdiction of the High

Court being confined to substantial question of law, a

finding of fact that the plaintiff failed to establish the plea

of easement by prescription is not open to challenge in

second appeal, even if the appreciation of evidence is

palpably erroneous and the finding of fact incorrect. An

entirely new point raised for the first time before the High

Court is not a question involved in the case unless it goes

to the root of the matter. In fact, as stated earlier, the

doctrine of lost grant has not been pleaded in this case. It

is not the case of the appellant that the decision rendered

by the two courts below on any material question violated R.S.A.No.651 of 2020

any settled question of law or was vitiated by perversity. It

is the case of the appellant that the principle of lost grant

has not been considered by the two courts below. The first

appellate court examined the evidence on record at length

and arrived at a reasoned conclusion that the plaintiff has

not proved the ingredients contemplated under Section 15

of the Easements Act and the alleged permissive use of a

plaint item No.3 pathway does not create easement by

prescription. The finding is based on cogent and binding

documents of title including Ext.B1 and Ext.C1 documents.

In the case on hand no question of law is involved. To be a

question of law involved in the case, there must be first, a

foundation for it laid in the pleadings and the question

should emerge from the sustainable findings of fact. No

such question of law is involved in the case. Hence this

R.S.A. cannot be entertained.

R.S.A.No.651 of 2020

For the reasons discussed above, this R.S.A. is

dismissed in limine. There will be no order as to costs.

Sd/-

N.ANIL KUMAR, JUDGE skj