Omana vs Reji Kurian
2022 Latest Caselaw 4098 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
             THE HONOURABLE MR.JUSTICE K. BABU
  THURSDAY, THE 7TH DAY OF APRIL 2022 / 17TH CHAITHRA, 1944
                     RSA NO. 73 OF 2015
    AGAINST THE JUDGMENT IN A.S.NO.15/2009 OF SUB COURT,
                         OTTAPPALAM
    O.S.No.143/2006 OF MUNSIFF MAGISTRATE COURT,PATTAMBI
APPELLANTS/APPELLANTS/DEFENDANTS:

    1    OMANA, AGED 66 YEARS, W/O.LATE ARIMPUR CHACKO,
         KARIKKAD VILLAGE, PERIMPILAVU DESOM,
         TALAPPILLY THALAK.
    2    A.C.DAVID, S/O.OMANA, ARIMPUR, KARIKKAD VILLAGE,
         PERIMPILAVU DESOM, TALAPPILLY THALAK.
         BY SMT.OMANA (PARTY IN PERSON)
            A.C.DAVID(PARTY IN PERSON)

RESPONDENT/RESPONDENT/PLAINTIFF:

         REJI KURIAN, 49 YEARS, REPRESENTED BY MUKTHIAR
         AGENT KURIAN, 80 YEARS, S/O.LATE MANANTHAN
         ITTIYESAN,RESIDING AT CHALISSERI ANGADI,
         KAVUKODE AMSOM, KAVUKODE DESOM,
         OTTAPPALAM TALUK 679536.
         BY ADVS.SRI.S.GANESH
         SRI.PAUL JACOB
         SRI.PEARL K.DAVIS


THIS REGULAR SECOND APPEAL   HAVING BEEN FINALLY HEARD ON
07.04.2022, THE COURT ON     THE SAME DAY DELIVERED THE
FOLLOWING:
 R.S.A.No.73 of 2015
                                     2




                               JUDGMENT

The judgment dated 11.6.2014 in A.S.No.15 of 2009 on the

file of the Subordinate Judge's Court, Ottappalam is under challenge in

this appeal. A.S.No.15 of 2009 arose from the judgment of the Munsiff-

Magistrate Court, Pattambi in O.S.No.143 of 2006.

2. The defendants are the appellants. The plaintiff is the

respondent.

3. Material facts relevant for the adjudication of this appeal

are narrated below:-

3.1. The plaintiff instituted the original suit for a permanent

prohibitory injunction restraining the defendants from trespassing upon

the plaint schedule property and causing any disturbance to the

peaceful enjoyment of the same. The plaintiff is the owner in

possession of the plaint `A' schedule property. He acquired title over

this property as per Ext.A1 assignment deed. The plaint 'B' schedule

property was kept in common as per the partition deed of 1946

(Ext.A4). The properties were divided in 1973 under Ext.A3 partition

deed among the plaintiff's father Sri.Kurian, Sri.Cheru and Sri.Simon. R.S.A.No.73 of 2015

Sri.Simon and Sri.Cheru assigned the properties to Smt.Annie,

Sri.David and Sri.Geever. The 'B' schedule way has been formed

exclusively for the use of Sri.Cheru, Sri.Simon and Sri.Kurian and

thereafter their assignees. The `B' schedule way came into existence

as per Ext.A2 partition deed of the year 1973. This way starts from the

southern public road, runs towards the north and ends in the `A'

schedule property. The defendants own property on the east of the 'B'

schedule way. A laterite wall is on the eastern side of `B' schedule way,

separating the same from the defendants' properties. The defendants

have also put up a barbed fence on the western side. They have got

entrance to their property through the northern way. The defendants

have no right over the 'B' schedule way. Recently, they cut and

removed the barbed fence on the western side of their property to enter

into the 'B' schedule way. The father of the plaintiff obstructed the

defendants. The plaintiff apprehends trespass on the part of the

defendants on the plaint 'B' schedule property.

3.2. The defendants resisted the suit contending that the

description of the plaint schedule properties is erroneous. The

defendants acquired the property on the east of `B' schedule way as

per Ext.A3 partition deed. The `B' schedule way was available for their

use even when Ext.A3 partition deed was executed. The defendants R.S.A.No.73 of 2015

have been using `B' schedule way openly, peacefully and as of right.

This way has been in existence even prior to 1973. The `B' schedule

property is a public way. The people who own property on either side

use it for ingress and egress to their properties. The plaintiff made an

attempt to put up a gate to obstruct the user of plaint `B' schedule way

by the defendants. Therefore, the plaintiff has no right to get the

reliefs sought.

4. During the trial, PWs1 and 2 were examined and Exts.A1

to A4 were marked on the side of the plaintiff. DWs 1 to 3 were

examined and Exts.B1 to B11 were marked on the side of the

defendants. Exts.C1 & C2 were marked as Court exhibits.

5. The Trial Court decreed the suit, holding that the plaintiff

is entitled to the permanent prohibitory injunction.

6. The defendants challenged the judgment and decree

before the First Appellate Court in A.S.No.15 of 2009. The First

Appellate Court confirmed the judgment and decree. Accordingly, the

defendants are in appeal under Section 100 of the Code of Civil

Procedure.

7. After hearing both sides, this Court re-formulated the

substantial questions of law as follows:-

R.S.A.No.73 of 2015

1) Have the Courts below misconstrued the evidence while holding that the defendants failed to establish right over `B' schedule way ?

2) Have the Courts below drawn necessary inferences and presumptions that would apply on the facts of this case ?

8. Heard both sides.

9. The plaintiff's case is that he is the owner in possession

of `A' schedule property. According to the plaintiff, `B' schedule way

was kept in common under Ext.A4 partition deed of the year 1946. In

1973, Ext.A2 partition deed was executed among the father of the

plaintiff Sri.Kurian, Sri.Cheru and Sri.Simon. The plaintiff pleaded that

`B' schedule way came into existence in 1973 at the time of execution

of Ext.A2 partition deed. The specific case of the plaintiff is that the `B'

schedule way, which starts from the southern public road towards the

north and ends in `A' schedule property, was exclusively set up for the

use of Sri.Cheru, Sri.Simon, Sri.Kurian and their assignees.

10. The defendants' challenge is that they had acquired

right over the `B' schedule way by way of open, continuous and

peaceful enjoyment of the same with effect from the time when Ext.A3

partition deed was executed. The defendants have also raised a

contention that `B' schedule way is a public way. R.S.A.No.73 of 2015

11. The defendants also challenged the plaintiff's right over

the plaint `B' schedule way. At the same time, the defendants pleaded

that they had acquired the right of easement by prescription over `B'

schedule way.

12. The conditions necessary for the acquisition of right of

easement by prescription are (1) there must be pre-existing easement

which must have been enjoyed by the dominant owner; (2) the

enjoyment must have been peaceable; (3) the enjoyment must have

been as an easement; (4) the enjoyment must have been as of right;

(5) the right must have been enjoyed openly; (6) the enjoyment must

have been for a period of 20 years; and (7) the enjoyment for 20 years

must have been without interruption.

13. Unless all these ingredients are proved, no right of

easement can accrue to the owner of a dominant heritage. Ordinarily, a

Court can find a case and decree the suit only based on the pleadings of

the parties. Where the claim is for an easement right, it is necessary

that the pleadings be specific and precise. There is reason therefore.

'Easement' is a precarious and special right. The right of easement is

one which a person claims over a land that is not his own. Since the

right of easement is a precarious and special right claimed over the land R.S.A.No.73 of 2015

of another, the pleadings must be precise. [Vide: Ibrahimkutty v.

Abdul Rahumankunju (1992 (2) KLT 775)].

14. In Justiniano Antao and others v. Smt. Bernadette

B. Pereira (AIR 2005 SC 236), the Apex Court held that to establish

a right by way of prescription, one must show that the incumbent has

been using the land as of right peacefully and openly and without any

interruption for the last 20 years. In addition, there should be

categorical pleadings that from what date to which date has one been

using the access for the last 20 years. Therefore, to establish the right

of prescription to the detriment of the other party, one has to aver

specific pleadings and categorical evidence.

15. In Chapsibhai Dhanjibhai Danad v. Purushottam -

(AIR 1971 SC 1878), following the principle in Raychand

Vanmalidas v. Maneklal Mansukhbhai (AIR 1946 Bom 266) the

Supreme Court held that as an easement by prescription under Sections

12 and 15 of the Easements Act is, in fact, an assertion of a hostile

claim of certain rights over another man's property and in order to

acquire the easement the person who asserts the hostile claim must

prove that he had the consciousness to exercise that hostile claim on a

property which is not his own and where no such consciousness is

proved he cannot establish a prescriptive acquisition of the right. R.S.A.No.73 of 2015

16. The Apex Court in Krishna Narain Agarwal v.

Carlton Hotel (P) Ltd., (1969 SCD 1105) has laid down that to

establish the claim under Sec.15 of the Easements Act, continuous user

for 20 years as of right to do the act complained of in assertion of a

title, peaceably and openly must be made out.

17. PW1 gave evidence in support of the pleadings in the

plaint. His oral evidence corroborated by Exts.A2 and A4 shows that

`B' schedule way was included in Ext.A4 partition deed of 1946, and

the same in its entirety has come into existence at the time of

execution of Ext.A2 partition deed in 1973. It has also come out in

evidence that the portion of the way was available from 1943 onwards.

18. Defendant No.2 gave evidence as DW1. An independent

witness was examined from the side of the defendant as DW3. The

Commissioner appointed in O.S.No.98 of 2005 gave evidence as DW2.

According to the defendants, `B' schedule way was available as on the

date of execution of Ext.A3. The recitals in Ext.A3 show that the

property of the plaintiff existed on the west of `B' schedule way. There

is no mention of the way on the west of the property of the defendants,

as claimed by them, in Ext.A3. The defendants have no consistent case

as to when they started using the `B' schedule way. R.S.A.No.73 of 2015

19. Yet another aspect that requires consideration is that

the pleadings of the defendants in the written statement go in the line,

denying the title of the plaintiff over the `B' schedule way. One of the

fundamental ingredients in a claim of easement is the admission of the

title of the servient owner by the dominant owner. On this ground

alone, the claim of the defendants over plaint `B' schedule property by

way of easement by prescription must fail. The Trial Court and the First

Appellate Court have meticulously gone through the pleadings and

evidence in this case and held that the defendants failed to establish

any right over the `B' schedule way. The Courts below have drawn the

necessary inferences and presumptions that would apply to the facts of

this case legally and correctly. The findings in the impugned judgment

require no interference. The substantial questions of law are answered

accordingly against the defendants.

The Regular Second Appeal is dismissed. The parties are

directed to bear their respective costs. Pending interlocutory

applications, if any, stand dismissed.

Sd/-

K.BABU Judge

TKS