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2011 DIGILAW 942 (KER)

Sathyavathi K. N. v. Sarojini

2011-08-24

M.SASIDHARAN NAMBIAR

body2011
JUDGMENT : M. Sasidharan Nambiar, J. Defendants in OS 935/1997 on the file of Munsiff Court-II, Kozhikode are the appellants, Respondent is the plaintiff. Respondent instituted the suit for decree for permanent prohibitory injunction restraining the appellants from interfering with his peaceful enjoyment of plaint B schedule property. Plaint B schedule property is a way starting from the way leading to Naithukulam T. V. Kumaran Nair road and proceeds towards the east and reaches the plaint A schedule property belonging to the respondent. It was contended that plaint A schedule property originally belonged to Unichirakutty alias Kuttiamalu, mother-in-law of the respondent by virtue of document No. 1170/1947 of SRO, Chevayoor and item No. 3 therein was set apart to the share of the respondent and her children. Respondent has been in possession of plaint A schedule property, The only access to plaint A schedule property is plaint B schedule way. It was contended that respondent and his predecessors have been using plaint B schedule way for the ingress and egress to plaint A schedule property continuously for more than 50 years openly, uninterrupted, as of right and as an easement and therefore, she has prescribed a right of way by easernent of prescription. Contending that plaint B schedule way passes through the property of the appellant and they are causing obstruction to the way, a decree for injunction was sought for. Appellants resisted the suit admitting that plaint A schedule property originally belonged to Unichirakutty alias Kuttiamalu who obtained the property from Velukutty and Velukutty obtained property from tharawad of the appellants and the property situated on the western side of the plaint A schedule property is in the possession of the appellant and under Ext. Appellants resisted the suit admitting that plaint A schedule property originally belonged to Unichirakutty alias Kuttiamalu who obtained the property from Velukutty and Velukutty obtained property from tharawad of the appellants and the property situated on the western side of the plaint A schedule property is in the possession of the appellant and under Ext. B3 partition deed entered into between the members of the tharawad of the appellants, property situated just on the west of the plaint A schedule property was exclusively allowed to the share of the appellants and even though the property was a paddy field earlier, it was converted into a garden land by planting coconut trees and areca tress and there is no foot path starting from Thandayad-Kovoor road towards south as alleged in the plaint and it is a private road having a width of 8 feet which is going to tharawad house of the appellants and respondent has no right of way through the plaint B schedule property and she or her predecessors have not been using the plaint B schedule way and therefore, she is not entitled to a decree sought for. 2. Learned Munsiff on the evidence of PW 1, DW 1, Exts. AI to A5, B1 to B4 and C1 to C6 found that the reports and plans submitted by the Commissioner with the evidence establish that plaint B schedule way starts from plaint A schedule property belonging to the respondent and lies to the east of the property of the appellants and the way proceeds towards west and reaches a road which joins Thandayad-Kovoor road which runs east-west through the north of the properties. Learned Munsiff also found that plaint B schedule way was being used by the appellants and her predecessors for more than 20 years continuously without interruption openly and peaceably as of right and as an easement and granted a decree restraining the appellants from interfering with the peaceful enjoyment of the plaint B schedule way. Appellants challenged the decree and judgment before Sub Court, Kozhikode in AS 167/2001. Learned Sub Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Second appeal was admitted formulating the following substantial question of law. Appellants challenged the decree and judgment before Sub Court, Kozhikode in AS 167/2001. Learned Sub Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Second appeal was admitted formulating the following substantial question of law. Are not the defendants entitled to confine the exercise of easement without detriment to the enjoyment of their property under Section 22 and 23 of the Indian Easement Act? 4. Learned Senior counsel appearing for the appellants and learned counsel appearing for the respondent were heard. 5. When the appeal was heard learned Senior counsel appearing for the appellants submitted that plaint B schedule way, as upheld by the Courts below runs through the middle of the property of the appellants and as provided under Section 22 of the Indian Easement Act, the dominent owner shall exercise his rights which is least onerous to the servient owner, the Courts below should have considered the question whether the way available to the respondent could be shifted towards the north of the property of appellants 4 and 5 and to the east of the property of appellants 5 and 1 and as this aspect was not raised or considered by the Courts below, if the appeal is sent for mediation, settlement of the dispute is possible. On the said submission as per order dated 8/7/2011, the appeal was sent for mediation to Kerala Mediation Centre at High-Court of Kerala. Appeal was returned by Kerala Mediation Center reporting that parties did not appear as directed by this Court. Learned Senior counsel submitted that appellants did not appear as they were not willing to provide a motorable way as claimed by the respondent. In such circumstances, appeal was heard again. 6. The fact that plaint A schedule property belongs to the respondent under Ext. A4 partition deed and Ext. A1 purchase certificate, is not disputed. Respondent has been residing in the plaint Aschedule property for more than 20 years prior to the institution of the suit. Case of the respondent is that plaint B schedule way is being used by the respondent and her predecessors for the last more than 50 years openly, peceably, continuously without interruption and as of right and as an easement and therefore, she has prescribed a right of way by easement of prescription. Case of the respondent is that plaint B schedule way is being used by the respondent and her predecessors for the last more than 50 years openly, peceably, continuously without interruption and as of right and as an easement and therefore, she has prescribed a right of way by easement of prescription. Though appellants disputed the case and contended that respondent was not using the way, learned Munsiff and learned Sub Judge on appreciation of the evidence found that respondent and his predecessors have been using the plaint B schedule way to each the plaint A schedule property from the western way, which reaches Thandayad-Kovoor road on the north. On going through the evidence, it is clear that the factual finding arrived at by the Courts below is in accordance with the evidence on record. Hence factual findings of the Courts below that respondent has established a right of easement by prescription over a way which starts from the eastern road which touches the Thandayad-Kovoor road which runs east-west as it being used for more than twenty years continuously, without any obstruction as of right and as an easement cannot be interfered as the findings are in accordance with the evidence. In fact appeal was admitted only on the substantial question of law of application for Sections 22 and 23 of Indian Easement Act. 7. Section 23 of Indian Easement Act has no application. Section 23 provides that subject to the provisions of Section 22, a dominant owner may from time to time alter the mode and place of enjoying the easement, provided he does not thereby impose any additional burden on the servient heritage. There is no claim or case that respondent, the dominant owner, has altered the mode and place of enjoying the right of way. Hence the only question is the applicability of Section 22 of Indian Easement Act. 8. Section 22 reads: "Exercise of easement. Confinement of exercise of easement. There is no claim or case that respondent, the dominant owner, has altered the mode and place of enjoying the right of way. Hence the only question is the applicability of Section 22 of Indian Easement Act. 8. Section 22 reads: "Exercise of easement. Confinement of exercise of easement. The dominent owner must exercise his right in the mode which is least onerous to the servient owner; and, when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined." What is provided under Section 22 is that the dominant owner must exercise his rights in the mode which is least onerous to the servient owner and, when the exercise of an easement can without detriment to the dominant owner, be confined to a determinate part of the servient heritage, at the request of the servient owner, such exercise shall be so confined. Therefore, to invoke Section 22 of the Act, appellants should have a case before the trial Court or at least before the first Appellate Court that existence of plaint B schedule way over, which respondent has a right of way by easement and prescription, is, hot least onerous to the appellants, the survient owners and without detriment to the exercise of the right by the respondent, the right of way can be confined to a determinate part of the servient heritage. Argument of the learned Senior counsel was that plaint B schedule way can be shifted towards the northern portion of the property of appellants 4 and 5 and to the eastern portion of the property of appellants 1 and 5. As stated earlier, if appellants had raised such a contention before the Trial Court or the first appellate Court, the argument could have been appreciated. But the stand taken by the appellants before the Courts below is denying existence of the way and denial of the right of way. There was no case that the way available to the respondent is not least onerous to the appellants and without detriment to the exercise of the right it is to be confined to the northern and eastern portion of the property Still, an opportunity was granted to enable the appellants to get the way shifted agreeable. There was no case that the way available to the respondent is not least onerous to the appellants and without detriment to the exercise of the right it is to be confined to the northern and eastern portion of the property Still, an opportunity was granted to enable the appellants to get the way shifted agreeable. But they did not even appear before the High Court Mediation Centre and did not avail the opportunity. In such circumstances, appeal can only be dismissed. Appeal is dismissed.