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2010 DIGILAW 650 (KER)

Joy Joseph v. Jose Jacob alias Thankachan

2010-08-20

P.BHAVADASAN

body2010
JUDGMENT : P. Bhavadasan, J. The defendants in Original Suit 243/1987, who had got a decree in their favour from the Trial Court, but found themselves deprived of the benefits of the decree by the lower Appellate Court are the appellants. The parties and facts are hereinafter referred to as they are available before the Trial Court. 2. The plaintiff claimed to have obtained plaint A schedule property as per Ext. A1 sale deed dated 27/08/1974. A portion of the property having a width of 5 links and an extent of 2 cents comprised in 24 cents of property also belongs to the plaintiff. First defendant purchased property on the northern side of the plaintiff’s property. He has a means of access from his property to the road lying on the northern side of the plaint schedule property through the adjacent property on the eastern side. He also purchased a property lying adjacent to his property on the western side having a width of 3 links from the side of M.C. Road towards east and then at a width of 5 links towards north upto his property for pathway and the first defendant has been using that portion of the property as a way for his ingress and egress to his property from the M.C. Road. He has no need to use the 5 links width pathway having an extent of 2 cents to gain access to the outside world. Defendants 2 and 3 are residing on the western side of the plaint schedule property and there is a boundary wall demarcating the property of the first defendant. It is found that a portion of the plaint schedule property has been trespassed upon by the defendants and enclosed within their compound wall. Under these circumstances, it became necessary to institute suit for declaration, recovery of possession and for permanent prohibitory injunction etc. 3. In the written statement filed by the first defendant, he contended that item No. 2 in the written statement having a width of 5 links is lying on the western side of the plaintiffs property in north-south direction and it leads from the M.C. Road to the property shown as item No. 1 in the written statement. He claimed right of easement by necessity and prescription over that way. He claimed right of easement by necessity and prescription over that way. It is pointed out that the plaintiffs tried to dispute the use of the way, police was informed and the plaintiffs had to remove the obstruction. A counter claim was also received by the first defendant for declaration of right of way "over the portion of way lying on the western side of plaint schedule property described as item No. 2 in the written statement. 4. Defendants 2 and 3 also resisted the suit. They denied that the plaintiff had any manner of right over 2 cents as alleged in the plaint and the suit had been filed with the ulterior motive of annexing the portion of the pathway to the property of the plaintiff. It is contended that the defendants and their predecessors have been using the pathway for a considerably long period and there is no other means of access to the property of the first defendant. They therefore prayed for a prescriptive right of easement. 5. The plaintiff filed a reply to the counter claim raised by the first defendant. He denied the allegation that the way in question was not at all used by the defendants, who have other means of access to their property. 6. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 4 and documents marked as Exts. A1 to A3 from the side of the plaintiff. The defendants examined DWs 1 to 6 and had Exts. B1 to B6 marked. Exts. C1 to C3(a) are the commission reports and plans. Exts. X1 to X6 are third party exhibits. 7. On an evaluation of the evidence in the case, the Trial Court came to the conclusion that the plaintiff has lost his title to plot No. D shown in Ext. C3(a) commission plan by way of adverse possession and limitation. It was also held that the defendants have a prescriptive right of easement to use the pathway. Accordingly the suit was dismissed. 8. Plaintiff took up the matter in appeal as AS 148 of 1993. The Appellate Court on a reconsideration of the evidence on record came to the conclusion that the finding of the Courts below regarding adverse possession and limitation is fully justified. Accordingly the suit was dismissed. 8. Plaintiff took up the matter in appeal as AS 148 of 1993. The Appellate Court on a reconsideration of the evidence on record came to the conclusion that the finding of the Courts below regarding adverse possession and limitation is fully justified. But however, the lower Appellate Court was unable to accept the finding regarding the right of the defendants to use the portion of the pathway shown as plot C schedule and accordingly that portion of the decree was reversed. It is against the said judgment and decree that the appeal has been filed Aggrieved by the finding that the plaintiff's right is lost by adverse possession and limitation, the plaintiff has filed a cross objection. 9. The following questions of law have been formulated in this second appeal: "1 Whether the lower Appellate Court is justified in setting aside the decree and judgment of the Trial Court, with regard to easement of prescription to pathway shown as 'C'? 2. Whether the lower Appellate Court, is justified in finding that as the predecessors of the first appellant is kudikidappukars, their use of pathway cannot be accounted with the statutory period for easement of prescription? 3. Whether the decree for prohibitory injunction, granted in favour of the first respondent, with regard to plot ‘C’ pathway is correct in view of the grave inconvenience pleaded by the appellants and the easement of prescription? 4. Whether the lower Appellate Court is justified in setting aside the decree and judgment in favour of the appellants in the circumstances of the case?" 10. Learned counsel appearing for the appellants points out that the lower Appellate Court was not justified in interfering with the judgment of the Trial Court as regards the defendants right to use the pathway. It is pointed out that the defendants have no other means of access to the outside world and the way made mention of in the plaint is the only means of access to their property. The way came into existence at the time of acquiring title and it qualifies to be an easement by necessity. At any rate, by the long, open, continuous and uninterrupted use, the defendants have acquired a right to use the pathway and they are entitled to a decree on the basis of prescriptive right of easement. 11. The way came into existence at the time of acquiring title and it qualifies to be an easement by necessity. At any rate, by the long, open, continuous and uninterrupted use, the defendants have acquired a right to use the pathway and they are entitled to a decree on the basis of prescriptive right of easement. 11. Learned counsel appearing for the respondents on the other hand pointed out that both the Courts below have found that the defendants are not entitled to use the pathway by way of easement by necessity. What then remained was regarding the plea based on prescriptive right of easement. It is pointed out that even going by the pleadings and the evidence, the pathway came into existence for the first time in 1971 when the partition deed was executed by the predecessor in interest of the plaintiff. If that be so, as the suit had been filed in the year 1987, the required statutory period is not completed and therefore the defendants are not entitled to the claim made by them. It is also contended that as regards the cross objection, the objection was regarding the finding of the lower Appellate Court, the right if any of the plaintiff over plaint D schedule shown in the plaint has been lost by adverse possession and limitation. According to the counsel, it can never be said that the counter claimant has lost his title by adverse possession and limitation. 12. None of the above contentions have any basis. One may refer to Ext. C3 commission report and Ext. C1(a) plan. C plot shown is the way. E plot shown is the excess land with the defendants. D plot is the portion of the pathway in defendants' possession. The green shaded portion lying on the east-west direction on the east-west side was bought by the first defendant for having access to the road on the western side. 13. As already mentioned, the defendants who are the appellants herein claim a right to use the pathway by way of easement by necessity and prescriptive right of easement. First of all both these cannot go together. While easement of necessity has its origin in a statute, the right of way by easement by prescription is the result of continuous and hostile use to the knowledge of the other person. First of all both these cannot go together. While easement of necessity has its origin in a statute, the right of way by easement by prescription is the result of continuous and hostile use to the knowledge of the other person. Both the Courts have found that the plaintiff cannot succeed on the claim of easement by necessity. 14. Item No. 2 way lies on the western side of item No. 1. It could be said that initially when the properties were partitioned under Ext. B1 by the predecessor in interest of both the parties, their might have been a requirement to use the pathway mentioned in the plaint. May be the sharers were using it also. Whatever that be, by the acquisition of D plot as per document No. 1508/87 of SRO Changanacherry the defendants have gained access to the outside world through another pathway. In the light of the above finding, it is idle for the appellants to contend that they have got a prescriptive right of easement. 15. It is true that the first defendant has purchased the property from kudikidappukars. It is claimed that since the kudikidappukars, from whom the purchase was made had a right of way, their use of the said way could betaken for the benefit of the appellants. First of all when the kudikidappu had not sought for purchase of the kudikidappu and no orders have been passed and till orders are passed, it cannot be said that there can be an easement of necessity. Kudikidappukars could not have claimed easement of necessity against their own landlord. Commission report Ext. C3 shows that there is an alternate means of access to the defendants. In the light of these facts, the claim based on easement of necessity was rightly turned down. 16. The lower Appellate Court has considered the view of the Trial Court that the plaintiff is entitled to use the pathway as he has acquired by prescriptive right of easement. Lower Appellate Court was unable to agree with the same because even going by the case of the defendants the way came into existence as per Ext. B1 document. That is of the year 1971. To succeed in a claim for prescriptive right of easement, the claimant has to show that he has open, continuous, hostile and uninterrupted use of the pathway for a period of 20 years. B1 document. That is of the year 1971. To succeed in a claim for prescriptive right of easement, the claimant has to show that he has open, continuous, hostile and uninterrupted use of the pathway for a period of 20 years. The suit was laid in 1987. It is very evident that the statutory period has not been completed. There is no evidence at all to show that the pathway was in existence prior to 1971. In the light of these facts, the lower Appellate Court was fully justified in holding that the defendants are not entitled to prescriptive right of easement to use the pathway. The finding does not call for any interference. 17. Coming to the cross-objection, that too is equally without any merit. 2 cents of land, about which the plaintiff had complained, was found to be in the possession of the defendants. Ext. C3 commission report shows that the D plot therein is in the actual possession and enjoyment of the defendants. The Commissioner has reported about the improvements seen in the property. Both the Courts below have found that there is no case for the plaintiff that it is he who had made improvements in D schedule. On the other hands, the defendants have adduced evidence to show that they have been in possession of the same and they have effected valuable improvements It is clear from the evidence that they have been in possession for a long time and if that be so, the finding of the Court below that the right, if any, of the plaintiff has been lost by adverse possession and limitation is fully justified. The result is that this appeal and the cross objection are without merits and they are only to be dismissed. I do so. There will be no order as to costs.