Kerala High Court
Satheeshkumar vs Paul on 12 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
RSA NO. 670 OF 2023
AGAINST THE DECREE AND JUDGMENT DATED 19.09.2023 IN A.S.NO.40/2021 ON
THE FILES OF THE IV ADDITIONAL DISTRICT COURT, THRISSUR AROSE FROM
THE DECREE AND JUDGMENT DATED 30.03.2021 IN O.S.NO.8256/2015 ON THE
FILES OF THE PRINCIPAL MUNSIFF COURT, THRISSUR
APPELLANT/APPELLANT/PLAINTIFF:
SATHEESHKUMAR
AGED 50 YEARS
S/O. VASU, KONIPARAMBIL VEETTIL , P.O.MULAMKUNNATHUKAVU,
KOZHIKUNNU DESOM, KILLANNUR VILLAGE, THRISSUR TALUK,
THRISSUR DISTRICT, PIN - 680581
BY ADVS.
SANTHOSH P.PODUVAL
R.RAJITHA
CHITHRA S.BABU
RESPONDENT/RESPONDENT/DEFENDANT:
PAUL
AGED 80 YEARS
S/O.CHERUR VAZHIYIL NEELANKAVIL LAZAR, P.O. PERINGAVU,
PERINGAVU DESOM, VILLAGE, THRISSUR TALUK,
THRISSUR DISTRICT,
PIN - 690008
BY ADVS.
K.A. MANZOORALI
SHAHNAS A.H.(K/3053/2023)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR JUDGMENT ON
12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A. No. 670 of 2023
2
"C.R"
JUDGMENT
Dated this the 12th day of April, 2024
This regular second appeal has been filed under
order XLII Rule 1 read with Section 100 of the Code of Civil
Procedure ("CPC" hereinafter) challenging the decree and
judgment in A.S. No.40 of 2021 dated 19.09.2023 on the
files of the Court of the IV Additional District Judge, Thrissur
arose from decree and judgment in O.S. No.8256 of 2015
dated 30.03.2021 on the files of the Principal Munsiff Court,
Thrissur. The appellant herein is the plaintiff and the
respondent is the defendant in the above suit.
2. Heard the learned counsel for the appellant as
well as the learned counsel appearing for the respondent.
Perused the relevant materials and the verdicts under
challenge.
3. Parties in this appeal shall be referred as
"plaintiff" and "defendant" with reference to their status
before the trial court.
4. On hearing both sides this appeal stands admitted
by formulating the following substantial questions of law:
1. What are the essentials to establish right
of easement by prescription as provided under
Section 15 of the Indian Easements Act, 1882?
2. Whether the trial court and the first
Appellate Court justified in finding suppression of
material fact as one among the reasons for
denying the right of easement by prescription
claimed by the plaintiff, over the plaint B
schedule way?
5. In this matter, the plaintiff instituted the suit
contending that plaint A schedule property was obtained by
the plaintiff by virtue of Settlement Deed No.1441/2013 from
his mother Gouri. According to the plaintiff, plaint B schedule
way available to the plaintiff has been running through plaint
C schedule property owned by the defendant, having a width
of 3 feet. According to the plaintiff, the way has been in
existence for the last 30 years and from 09.02.1990, the
plaintiff and his predecessors have been using plaint B
schedule way openly, peaceably, without interruption and as
of right. Since, the plaintiff apprehended obstruction of the
plaint B schedule way, the present suit for prohibitory
injunction was pressed into.
6. The defendant filed written statement and resisted
the suit. It was contended inter alia that no way is available
as plaint B schedule and the plaintiff or his predecessors
never used the said way. In the title deed in respect of plaint
A schedule property, northern boundary is mentioned as a
private way, but in the plaint that has been deliberately
suppressed. Therefore, the suit would fail.
7. The trial court recorded evidence and tried the
matter after addressing rival contentions. PWs 1 to 3
examined and Exts. A1 to A5 marked on the side of the
plaintiff. DW1 examined and Exts.B1 to B7 and B9 marked on
the side of the defendant. Exts.C1 and C2 series were also
marked.
8. Finally, the trial court dismissed the suit on the
finding that, even though the existence of an alternative way
did not affect the claim of easement by prescription, a way
when provided in Ext.A3, the title deed of the wife of the
plaintiff and non mentioning of the said available way is a
material suppression, which would disentitle the relief
claimed by the plaintiff. It was also found by the trial court
that the plaintiff not established the use of plaint B schedule
with essential ingredients to perfect easement by
prescription, since apart from PW3, nobody was examined to
prove the said use before 2013 (prior to the purchase of the
property by the plaintiff and his wife). Regarding the
evidence of PW3, the trial court found that since, PW3 though
supported existence of plaint B schedule way, he pleaded
ignorance about several vital aspects, which would have
easily answered, if he was familiar to the property and plaint
B schedule way as stated by him in his chief affidavit.
9. Though, appeal was filed before the Appellate
Court, vide A.S. No.40/2021, the learned District Judge
confirmed the finding of the trial court and dismissed the
appeal.
10. While assailing the concurrent verdicts, it is
submitted by the learned counsel for the plaintiff that in
paragraph No.13 of the plaint, the essential ingredients to
perfect easement by prescription have been specifically
pleaded and PW3 given evidence to support the said use. It is
also pointed out that as per Exts.C1 and C2 reports, the
Commissioner categorically reported the existence of way as
contended in the plaint and the Commissioner also reported
that the way provided in Ext.A3 is not physically in existence
as of now. Accordingly, it is submitted by the learned counsel
for the plaintiff that, the trial court and the Appellate Court
miserably failed to consider the essential ingredients to
perfect easement by prescription and therefore the claim was
negatived without any justification. Therefore, the concurrent
verdicts are liable to be reversed.
11. Repelling this contention, it is submitted by the
learned counsel for the defendant that plaint C schedule
property was obtained by the defendant by two documents in
the year 1976. As per Ext.B5, the father of the defendant
purchased the property and at the time of purchase, plaint B
schedule way, extending upto the said plot alone was
provided and subsequently in the year 2000, as per Ext.B6
the remaining portion of the defendant's property having
road access also was purchased. It is submitted by the
learned counsel for the defendant that the plaint does not
contain necessary pleadings and the use of the way by the
predecessors of the plaintiff was inserted in handwriting,
after preparation of the plaint, as clearly noted by the trial
court in paragraph No.25. In support of this contention, the
learned counsel for the defendant has placed the decision of
this Court reported in M.N. Saji v. K.R. Krishnakumar
[2023 (6) KHC 2016 : 2023 KHC OnLine 621 : 2023 KER
57358 : 2023 LiveLaw (Ker) 521 : 2023 (4) KLJ 466 : 2023 KLT
OnLine 2044], wherein this Court held as under:
"Coming to the necessity of pleadings,
the aim of pleadings is to offer all sides an
intimation of the case of the opposite side to
be met and to enable courts to work out
what's really in dispute between the parties.
The intent behind pleadings, be it a statement
of claim, defence or reply, is of identifying the
real issues between the parties, to limit the
evidence of the trial subject to the issues
formed and to guarantee that no party is
taken at any disadvantage by the introduction
of matter not certain from pleading and the
trial proceeds smoothly towards judgment,
upholding the principles of a fair trial. To put it
otherwise, a party while entering into a trial
should know in advance the crux of the case
they will have to face and substantiate during
the course of trial. It is in this view of this
matter, relief not pleaded in a pleading should
not be granted is a legally accepted
proposition. Therefore, the court cannot go
beyond the scope of pleadings since
pleadings are the substratum to find out the
real controversy between the parties. A civil
suit depends on the pleadings. Indubitably,
along these lines, the pleadings play a role of
assisting the court in narrowing the scope of
controversy in question and make parties
aware of the issue so that they can adduce
the appropriate evidence to prove the same in
accordance with law."
12. The trial court as well as the Appellate Court
concurrently found that even though plaint B schedule way
as contended by the plaintiff was found by the Commissioner,
the use of the same by the plaintiff for a period about 20
years was not established. It was found by the trial court that
PW1 admitted the purchase of the property in the year 2013
and he had filed the suit in the year 2015. So, the use of
plaint B schedule way to perfect right of easement by
prescription i.e. 20 years is a matter to be proved by
examining somebody, who is capable of deposing about its
use, to hold that the same ripened into right of easement by
prescription.
13. It is true that, as argued by the learned counsel for
the plaintiff, PW3 was examined and he had filed chief
affidavit in support of use of plaint B schedule as contended
by the plaintiff. During cross-examination, his ignorance to
many vital questions persuaded the trial court to disbelieve
his evidence. Then, the argument that the trial court as well
as the first Appellate Court not considered the evidence of
PW3, is incorrect. The evidence of PW3 has been dealt in
paragraph No.26 of the trial court's judgment. The same is as
under:
"In support of the plaintiff's case, in
addition to the plaintiff, PW3 was also
examined. PW3 has reported about the
alleged use of plaint B schedule way by the
plaintiff and has stated that it was existing
as a way for about 35 years and he has seen
the plaintiff and his predecessors using the
said way. He even stated that he has used
the said way for going to the plaintiff's
house. His evidence does not inspire
confidence for the reason that he pleaded
ignorance about several vital aspects which
would have been easily answered if he had
familiarity with the property as stated by
him in his examination. He stated that he
does not know whether in Gouri's property,
any one is staying. To a question as to
whether the plaintiff was originally staying in
the house in Gouri's property, he stated that
it is possible, but he does not know. When he
was asked as to whether the Plaintiff was
using the northern way when he was staying
in the tharawad house in Gouri's property,
he replied that he does not know. He has
stated that he does not know the owner of
the property to the east of Gouri's property.
When asked whether Gouri was using the
northern way for accessing her house, he did
not reply in the affirmative, but stated that it
is possible. When asked whether before
construction of the house in the plaintiff's
wife's property, whether plaintiff was using
the northern way, he replied that he does
not know. He has also stated that he does
not know whether Gouri and the Plaintiff
ever lived together. All these statements
make him an unreliable witness."
14. As far as the ingredients to establish right of
easement by prescription, the law is well settled. In the
decision reported in Mercy v. Agnus Maria E.J. [2023 KHC
828], this Court set out essential ingredients to be complied
under Section 15 of the Indian Easements Act, 1882. The
same are as under:
"While precising the mandate of S.15 of the
Easement Act, the following ingredients must be
pleaded and proved:
(1) There must be pre-existing easement
which must have been enjoyed by the
dominant owner;
(2) the enjoyment must be peaceable;
(3) the enjoyment must be an easement;
(4) the enjoyment must be as of right;
(5) the right must be enjoyed openly;
(6) the enjoyment must have been for a
period of twenty years;
(7) the enjoyment for 20 years must have
been without interruption; and
(8) the enjoyment must be openly, peaceable,
uninterrupted, as of right, as an
easement, without interruption for twenty
years, for the beneficial enjoyment of the
dominant tenement."
15. The vital question to be decided in this matter is,
whether the plaintiff succeeded in proving the use of plaint B
schedule way by ingredients provided under Section 15 of the
Indian Easements Act, 1882?
16. The trial court as well as the Appellate Court found
that the use of plaint B schedule way not specifically proved
by convincing evidence. It was noted by the first Appellate
Court that nobody was examined to prove the use of plaint B
schedule way, by the predecessors of the plaintiff, though the
case of the plaintiff was that he had purchased the property
only in the year 2013 as per Ext.A3 title deed. Thus, it
appears that convincing evidence to establish right of
easement by prescription over plaint B schedule way not let
in, in this matter and thereby the trial court as well as the
Appellate Court negatived the said claim. The first substantial
question of law answered thus.
18. Coming to the second substantial question of law,
suppression of vital and material facts before a Court of law
can be a reason to deny an equitable or discretionary relief.
But, such suppression shall be so material. At the same time,
minor omissions would not be given the color of suppression
of material facts to deny equitable and discretionary reliefs.
When a material fact is suppressed, likewise providing of an
alternative pathway in the title deed and what happened to
the said pathway, in fact, the same is suppression of material
fact, which would disentitle the relief of equitable or
discretionary relief. In the case at hand, after finding that the
plaintiff miserably failed to prove right over plaint B schedule
pathway by convincing evidence, suppression of materials
facts also was pointed out as a reason for disallowing the
prayer and the said course of action could not be faulted at
all.
19. To sum up, the concurrent verdicts of the trial
court as well as the Appellate Court are found to be
perfectly in order. Accordingly, after confirming the
concurrent verdicts of the trial court as well as the First
Appellate Court, this regular second appeal stands
dismissed.
All interlocutory orders stand vacated and all
interlocutory applications pending in this regular second
appeal stand dismissed.
Sd/-
A. BADHARUDEEN
SK JUDGE
