Kerala High Court
A.K.Sasi vs Santhosh.P.B on 24 September, 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 24TH DAY OF SEPTEMBER 2024 / 2ND ASWINA, 1946
RSA NO. 591 OF 2020
AGAINST THE JUDGMENT AND DECREE DATED 22.10.2019 IN AS NO.6 OF
2019 OF PRINCIPAL SUB COURT,NORTH PARAVUR ARISING OUT OF THE JUDGMENT
AND DECREE DATED 19.11.2018 IN OS NO.356 OF 2011 OF MUNSIFF COURT,ALUVA
APPELLANTS/APPELLANTS/PLAINTIFFS 1 & 2:
1 A.K.SASI,AGED 65 YEARS
S/O. KUTTAPPAN, AMBATTUPARAMBIL, KURUMASSERY P O, PIN -
683579.
2 GINI RAJAN, AGED 42 YEARS
NAMBIATTU HOUSE, MANGATTUKARA, PULIYANAM P O, PIN -
683572.
BY ADV B.JAYASANKER
RESPONDENT/RESPONDENT/ DEFENDANT:
SANTHOSH.P.B
AGED 57 YEARS
S/O. BALAN, PAYYAPPILLY HOUSE, KURUMASSERY PO, PIN -
683579.
BY ADV SMT.M.A.ZOHRA
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
03.09.2024, THE COURT ON 24.09.2024 THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
1. The plaintiffs are the appellants. The second plaintiff is the
daughter of the deceased brother of the first plaintiff.
2. Plaint A schedule property having an extent of 4.97 Ares be-
longs to the first plaintiff. Plaint B schedule property having
an extent of 4.98 Ares belonged to the second plaintiff. Plaint
B schedule property situated on the southern side of plaint A
schedule property. Plaint D schedule property belonging to
the defendant is situated on the eastern side of plaint A & B
schedule property. Plaint D schedule property is shown as
having an extent of 30 cents and the improvements therein.
The plaintiffs have properties on the eastern side of D sched-
ule property. On further eastern side of the said properties of
the plaintiffs, PWD road lying north-south is situated.
3. According to the plaintiffs there is a way having a width of 2
kol starting from PWD road passing through the southern side
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of the properties of the plaintiffs and the defendant and fur-
ther passing through the eastern side of plaint B schedule
property and ending at A schedule property. The said way is
shown as plaint C schedule.
4. Though the plaintiffs included E schedule property also in the
Plaint seeking reliefs with respect to the same, the same is
not discussed in this judgment as the Counsel for the appel-
lants did not press for the same.
5. As per plaint allegations, the grandfather of the 1st plaintiff,
Velayudhan held all the scheduled properties under the lease-
hold rights from Madhavi Amma and Gouri Amma; that it was
divided during thproperties; andlayudhan, allotting the mid-
dle portion having 44 ½ cents to Valiyakuttan, who was the
father's brother of the 1st plaintiff and allotting the properties
on the eastern and western sides to the father of the plaintiff
Kuttan Kochukuttan; that the property allotted to Kuttan was
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partitioned between the 1st plaintiff and the 2nd plaintiff as per
Ext.A1; that the father of the defendant purchased D Sched-
ule property from Valiyakuttan as per Ext.A3; that the Plaint
C schedule way has been in existence during the lifetime of
Velayudhan and it was shifted to the southern side when the
property was given to Valiyakuttan; it is the only way to plaint
A and B schedule properties; and that the defendant has no
right to obstruct the easement by necessity.
6. The prayer in the suit is essentially for restraining the defend-
ant and his men from reducing the width of plaint C schedule
way upto plaint A and B schedule properties, from committing
waste therein and from obstructing the usage of the said way
by the plaintiffs.
7. The defendant filed a Written Statement resisting the suit
prayers contending, inter alia, that the properties described
in the plaint did not belong to a common predecessor; his fa-
ther purchased the property from Madhavi Amma and Gouri
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Amma; that plaint C Schedule way is not existing; that the
property belonging to the plaintiffs abutting the PWD road on
the eastern side is a dry land whereas plaint A and B schedule
properties lying on the western side after D schedule property
are paddy lands and hence there was no need for way; that
the access to those paddy lands are through ridges; there is
no easement by necessity; that there is no severance of tene-
ments; that there was another way on the northern side of the
plaint schedule properties through puramboke and the plain-
tiff planted plantains in the said way encroaching into the
same.
8. The Trial Court dismissed the suit as per judgment dated
12.04.2013 considering that the claim of the plaintiffs is ease-
ment by necessity over plaint C schedule way. The plaintiffs
filed A.S.No.97/2014 before the First Appellate Court and the
First Appellate Court set aside the judgment dated
12.04.2013 of the Trial Court and remanded the matter back
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to the Trial Court for fresh disposal after permitting the par-
ties to adduce further evidence. In the remand order, the First
Appellate Court found that the definite contention taken by
the plaintiffs is that plaint C schedule property was set apart
as a common way for the use of the legal heirs of deceased
Velayudhan who was the grandfather of the first plaintiff. Ac-
cording to the First Appellate Court, the pleadings in the
plaint are to the effect that the plaint C schedule way was set
apart for the common user of the property holder who derived
title to the property through the person who originally pos-
sessed the entire property belonging to the plaintiffs and the
defendants. The First Appellate Court made a categorical
finding that the case put forward by the plaintiffs is not a case
of easement by necessity especially when the same is absent
in the chief examination affidavit of PW1. The First Appellate
Court took note of the contentions of the plaintiffs that the
way described in Ext.A1 the Partition Deed by which the
plaintiffs obtained plaint A & B schedule properties is not the
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way which is relied on by the plaintiffs; that plaint C schedule
way and the way mentioned in Ext.A1 are different; that if the
properties of the plaintiffs and defendants are measured out
it can be definitely seen that the plaint C schedule property
is lying outside of the property of the defendants and is not
running through the property of the defendants and that if the
First Appellate Court remands the matter back to the Trial
Court for fresh trial, the plaintiffs would be able to prove
these facts. The First Appellate Court took note of the conten-
tion of the defendant that he wanted to produce his prior title
deed to prove his contentions. The First Appellate Court
found that it is not clear whether the way is passing through
the property of the defendant or outside it.
9. In the first round of litigation, the plaintiffs examined PWs 1
& 2 and marked Exts.A1 and A2. The Commission Report and
rough sketch were marked as Exts.C1 and C1(a). The defend-
ants did not adduce any oral or documentary evidence. PW1
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is the 1st plaintiff and PW2 was the Advocate Commissioner
who prepared Exts.C1 and C1(a). Ext.A1 is the certified copy
of the Partition Deed dated 09.03.2005 by which the plaintiffs
derived plaint A & B schedule properties. Ext.A2 is the Will
dated 05.03.1985 executed by the father of the first plaintiff
Kuttappan. After remand, PW1 was further examined and
Exts.A3 and A4 were marked from the side of the plaintiffs.
Ext.C2 Commission Report C2(a) Rough Sketch and C2(b)
Survey Sketch were marked and the Advocate Commissioner,
who prepared Exts.C2 and C2(a), was examined as PW3 and
the Surveyor, who prepared C2(b) Survey Sketch, was exam-
ined as PW4. On the side of the defendant, Partition Deed
dated 22.08.2012 was marked as Ext.B1 by which the plaint
D schedule property was partitioned. The Trial Court again
dismissed the suit as per judgment dated 19.11.2018 holding
that the plaintiff could not prove any right over plaint C sched-
ule property.
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10. The plaintiffs filed A.S.No.6 of 2019 before the First Appel-
late Court and the same was dismissed as per judgment and
decree dated 22.10.2019 confirming the judgment and decree
of the Trial Court. But the First Appellate Court found that
the Trial Court should not have insisted for proving easement
by necessity and that the Trial Court ought to have examined
whether the plaintiffs are entitled to the right over C sched-
ule way on the basis of the principles of the common user in
the light of the specific direction of the First Appellate Court
in the judgment in A.S.No.97 of 2014.
11. I heard the learned counsel for the appellant Sri.
Jayasankar B and the learned counsel for the first respondent
Smt.M.A.Zohra.
12. The learned counsel for the appellant contended that the
Trial Court ought not to have considered the case of the plain-
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tiffs as a claim on the basis of easement by necessity. The plead-
ings and evidence in the case would clearly indicate that the
case of the plaintiffs is that of a common user of plaint C sched-
ule way. In view of the specific finding of the First Appellate
Court in the Remand Order, the Trial Court ought to have con-
sidered the claim of the plaintiffs as a case of a common user of
the plaint C schedule way. The Advocate Commissioner has spe-
cifically found existence of plaint C schedule way in Ext.C2(b)
sketch. Though Ext.A3 document by which the father of the de-
fendants derived only 34 cents equivalent to 13.77 Ares, the Ad-
vocate Commissioner has found that the extent of plaint C
schedule property as 17.77 Ares equivalent to 44 cents, which
clearly indicates that property claimed by the defendant in-
cludes part of plaint C schedule property which is passing
through the southern and eastern sides of plaint D schedule
property. Though the Ext.A3 document covers only 34 cents, the
father of the defendant obtained a Purchase Certificate for 44
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cents in order to make a false claim over the plaint C schedule
pathway.
13. On the other hand, the learned counsel for the respondent
submitted that the plaintiffs had instituted the suit by filing a
plaint with vague averments and prayers. The averments are
contradictory to each other. There is no specific averment with
respect to the formation of the alleged plaint C schedule way.
Ext.A1 would indicate that the plaintiffs are having other access
to play A & B schedule properties. The contention that the plain-
tiffs obtained a Purchase Certificate for 44 cents when the
Ext.A3 document covers only 34 cents is unsustainable in view
of the fact that the plaintiffs themselves admitted in the plaint
that the father of the defendant, obtained 44½ cents from Vali-
yakuttappan who is the brother of the father of the plaintiffs.
The Advocate Commissioners and the Surveyor prepared the
Commission Reports and Plan identifying the plaint C schedule
property as shown by the plaintiffs which is revealed from the
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said Reports. Ext.A4 document was not properly proved since
any of the parties therein were examined. The plaint does not
contain the details as required under Order 7 Rule 3 CPC, and
the reliefs sought therein are vague and do not satisfy Order 7
Rule 7 CPC.
14. I have considered the rival contentions raised by the
learned counsels. The plaint schedule properties and the prop-
erties on the eastern side of plaint D schedule property up to the
PWD road passing through the eastern side originally belonged
to the grandfather of the first plaintiff, namely Velayudhan. The
middle portion of the property belonging to Velayudhan was al-
lotted to his son Valiyakuttan, and the properties on the eastern
side and western side of Plaint D schedule property were allot-
ted to the father of the first plaintiff, Kuttappan. As per the plaint
allegations, plaint C schedule way was formed before 1971. Ad-
mittedly, the property owners obtained Purchase Certificates
with respect to their holdings. In view of the contention of the
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Counsel for the appellant the plaintiffs are claiming right of way
through plaint C schedule way on the principles of common user,
it is unnecessary to consider whether the properties are severed
from a common tenement or not. Though the counsel for the re-
spondents argued that the case of the plaintiffs is based on an
easement by necessity, in view of the non-challenge against the
remand order passed by the First Appellate Court in A.S.No.97
of 2014 finding that the case of the plaintiffs is that of a common
user over plaint C schedule way, the defendants could not con-
tend that the case pleaded by the plaintiffs is that of an ease-
ment by necessity. It is useful to rely on the decision of this Court
in Kizhakke Neliyarampath Rafeequ and Ors. v. Thavara
Rakkattil Choikutty Master and Anr. [2021 (5) KHC 592]
cited by the learned counsel for the appellants that the correct-
ness and legality of the order of remand could not be considered
in a subsequent stage of the same proceedings even when find-
ings underlying the remand order have been concluded between
the parties.
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15. Plaint C schedule way starting from the PWD road on the
eastern side upto the eastern boundary of the property of the
defendant is admitted by the defendant. The existence of the
said way outside the southern boundary of the property of the
defendant upto the plaint A schedule property and right of the
plaintiffs over the same on the principle of common user are to
be proved by the plaintiffs. Though the Counsel for the appel-
lants argued that the Trial Court again considered the claim of
the plaintiff as an easement by necessity, on a perusal of the
Trial Court judgment, it is seen that the plaintiff's claim on the
basis of the common user is also considered by the Trial Court.
It is true that the Trial court considered the claim of easement
by necessity also which could not have been done in the light of
the Remand Order. The question to be considered in this appeal
is whether the plaintiffs have substantiated their claim of the
right of common user with necessary pleadings and evidence in
this case.
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16. As rightly found by the Trial Court and the First Appellate
Court, the plaintiffs do not have a consistent case with respect
to the nature of right over plaint C schedule way. The plaintiffs
should have made clear and precise pleadings with respect to
their right of way on the principles of common user, but they
failed to do the same. Necessary pleadings with respect to their
right of way on the principles of common user are absent in the
plaint. The reference to easement by necessity in the plaint cre-
ates confusion with respect to the basis of the claim. It is seen
from the impugned judgment of the First Appellate Court that
the plaintiffs claimed even easement by grant as per Ext.A2 be-
fore it and advanced many arguments in support of the said
claim. The First Appellate Court specifically recorded that the
Counsel for the appellant did not advance arguments on the ba-
sis of the common user. There is no averment in the plaint that
the plaintiff derived the right of way through plaint C schedule
property by grant as per Ext.A2. The contention of the counsel
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for the appellant that since Ext.A2 is produced along with Plaint,
it formed part of the pleadings. The learned counsel for the ap-
pellants cited the decision of this Court in Commercial Finan-
ciers v. Thressia [1990 (1) KLT 774] to substantiate the point
that the production of the document along with the plaint is to
be treated as forming part of the pleadings. But the plaintiffs do
not have a claim on the basis of easement by grant in this appeal.
The contentions of the Counsel for the appellant are based on
the right of way on the principles of the common user.
17. Exts.A1 to A4 are the documents produced by the plaintiffs
to prove his claim.
18. The case of the plaintiffs is that the way referred to in
Ext.A1 is not the way which is claimed by them. According to
PW1, there is a mistake in the description of the way in Ext.A1.
No attempt was made to correct the description of the way in
Ext.A1 by the plaintiffs. If Plaint C schedule way was available
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to the plaintiffs, that should have found a place in Ext.A1 Parti-
tion Deed. The absence of description of plaint C schedule way
in Ext.A1 Partition Deed would show that the case pleaded by
the plaintiffs is highly improbable. Hence, Ext.A1 does not have
any use to prove the claim of the plaintiff.
19. Ext.A2 is the Will executed by the father of the 1st plaintiff.
The counsel for the appellants cited the decision of this Court in
Sreelatha and Ors v. Santha and Anr. [2022 (1) KHC 74] to
substantiate his contention that there is no need not prove a Will
in accordance with the mandate under Section 68 of the Evi-
dence Act against a stranger who is not claiming under the tes-
tator. According to him, the First Appellate Court committed a
mistake in rejecting Ext.A2 Will on the ground that it is not
proved by examining one of the attesting witnesses as required
under Section 68. True, the First Appellate Court ought not to
have discarded Ext.A2 Will for want of proof under Section 68
of the Evidence Act. But, the plaintiffs have no case that they
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took possession of the properties as per Ext.A2 Will. They exe-
cuted Ext.A1 Partition Deed to partition the property. On a pe-
rusal of Ext.A2, it would show that the way mentioned therein
does not tally with the plaint C schedule way found by the Advo-
cate Commissioner in Ext.C2(b). There is a difference between
the ways mentioned in Ext.A1 and Ext.A2. There is no explana-
tion from the plaintiffs with respect to the difference between
the ways mentioned in Ext.A1 and Ext.A2. It is clear from the
evidence of PW4 Surveyor that the plaint C schedule way is iden-
tified not with reference to Ext.A2. Even PW1 could state about
the way claimed on the strength of Ext.A2. Patta No.1416/1975
is referred to as the prior Deed in Ext.A2. The plaintiffs did not
produce the said Patta. Since the Patta was issued after the al-
leged formation of a common pathway, such a way should have
been mentioned as a boundary in the said Patta. The absence of
production of the said Patta also makes the claim of the plaintiffs
suspicious.
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20. Ext.A3 is the title deed of the defendant. Though the coun-
sel for the respondent contended that Ext.A3 does not belong to
Plaint D schedule property, from the description available in
Ext.A3, it is revealed that Ext.A3 relates to Plaint D schedule
property. It is executed by brother of the father of the first plain-
tiff in favour of the defendant's father. It would show that there
is no way on the southern side of the said property. If a way was
there on the southern side of Plaint D schedule property, the said
way would have been shown as a boundary in Ext.A3 document.
Ext.A3 shows that the way ends at the property of the defendant
and does not proceed further.
21. Ext.A4 is a copy of the Title deed of a neighbouring prop-
erty which was executed by the father of the plaintiffs. Ext.A4 is
not properly proved by examining any of the parties to the said
document.
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22. PW1 is the 1st plaintiff. He filed a Proof Affidavit dated
03.04.2013 initially and an Additional Proof Affidavit dated
07.07.2018 when he was examined further after remand. His ev-
idence does not disclose the facts with respect to the creation of
the plaint C schedule way. He admits that the way is mistakenly
mentioned in Ext.A1. He could not properly answer questions
with respect to Ext.A2. He admitted that a clear way is there up
to the property of the defendant and that the way is not lying
separated from Plaint D schedule. Even though the father of the
1st plaintiff was alive as revealed from the evidence of PW1, he
was not examined by the plaintiffs. He would have been the best
person to give evidence with respect to the creation of the plaint
C schedule way.
23. PW2 is the Advocate Commissioner who prepared Ext.C1
and C1(a). Though in Ext.C1, PW2 has stated that the plaint C
schedule way passing through the southern and eastern sides of
the property of the defendant is separated by trees and stumps,
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no such demarcation is noted in Ext.C2 by PW3. The plaintiffs
also do not have any such case either in the pleading or in evi-
dence. No such trees and stumps are marked in Ext.C1(a) Rough
Sketch.
24. PW3 is the Advocate Commissioner who prepared Ext.C2
Report and Ext.C2 (a) Rough Sketch. He deposed that plaint C
schedule way was identified on the basis of the plaint averments
and Ext.A2. Ext.C2(b) shows that there is a clear cut way up to
the property of the defendant and thereafter, it is not seen lying
separated from the property of the defendant.
25. The evidence of the PW4 Surveyor also indicates that he
measured the property according to the plaint description. He
stated that he does not remember whether the properties are
measured on the basis of any document. He specifically stated
he did not verify Ext.A2 during the measurement.
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26. These facts would indicate that the plaint C schedule way
was not identified with reference to Exts.A2, A3 & A4. Admit-
tedly, the resurvey record also does not show the existence of
plaint C schedule way. If a common way was formed and the
same existed as on the date of the resurvey, it would have defi-
nitely been referred to in the resurvey, even if it is a private way.
27. The Counsel for the appellant contended that the father of
the defendant obtained only 34 cents as per Ext.A3, but he ob-
tained a Purchase Certificate for 44 cents, including a portion of
Plaint C's Schedule property passing outside the southern
boundary of the property of the defendant by paying fraud. Such
a contention is unsustainable as in the plaint itself it is admitted
that Valiyakuttapan derived 44 ½ cents in partition and the same
is sold to the father of the defendant.
28. The learned counsel for the appellants cited the decision in
Aiswar Bhai C Patel @ Bachu Bhai Patel v. Harihar Bahera
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and Anr. [(1999) 3 SCC 457] to substantiate the point that in
view of the non-examination of the defendants adverse inference
has to be drawn against him. The learned counsel cited the de-
cision of this Court in Ramayya Koundan & Ors. v. Thechi
Ammal Koundachi & Ors. [1955 KLT 80] and contended that
inconsistent pleadings are permissible and the plaintiffs may
rely on one set of facts to succeed in proving them and may rely
upon another set of facts to succeed in proving them. The
learned counsel cited the decision of the Hon'ble Supreme Court
in Ferm Sreenivas v. Mahavir Prasad and Ors. [AIR 1951 SC
177] that the plaintiffs may rely on different rights alternatively,
and there is nothing in the CPC to prevent a party from making
two or more inconsistent sets of allegations and claiming reliefs
thereunder in the alternate. The learned counsel cited the deci-
sion in John Varghese (Pazhampallil) v. Sweena Anna
Thomas [2013 (4) KHC 612] to substantiate the point that a
simple suit for injunction is maintainable when his indefeasible
rights to use a pathway is obstructed. I am of the view that even
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in the absence of any oral and documentary evidence on the part
of the defendants, it is for the plaintiff to discharge his initial
burden to prove the plaint allegations by adducing necessary ev-
idence. In this case, the plaintiffs failed to make necessary
pleadings in the plaint and failed to adduce necessary evidence
to identify plaint C schedule property and to prove his right over
the same. It is true that the defendant did not mount to the box
to prove his case. He could not prove the existence of the alter-
nate way pleaded by him. But the weakness of the defense is not
relevant material in the facts and circumstances of the case. The
plaintiffs failed to plead and prove the existence of plaint C
schedule way and the nature of their right of way over the same.
The plaintiffs did not discharge their burden to prove the exist-
ence of plaint C schedule way. Sufficient pleading with respect
to the creation of plaint C schedule way is lacking in the plaint.
The plaintiffs ought to have identified plaint C schedule way with
sufficient pleading and evidence.
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29. In view of the aforesaid discussion, the substantial ques-
tions of law formulated in this Regular Second Appeal do not
arise for consideration. The Regular Second Appeal is dismissed
without costs.
Sd/-
M A ABDUL HAKHIM, JUDGE
jma
