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2014 DIGILAW 763 (KER)

Thilakarj Thilakan v. P J Sebastian

2014-09-29

P.BHAVADASAN

body2014
JUDGMENT P. Bhavadasan, J. 1. The defendants 1 to 6 are the appellants. They suffered a decree at the hands of the trial court which was confirmed in appeal. The short facts absolutely necessary for the disposal of this appeal are as follows. 2. Plaint A schedule property belonged to the grand father of the plaintiff which ultimately devolved on him. The plaintiff and his family are residing in the said property. On the south, east and west of the property is a thodu. The property on the northern side of the plaint A schedule property was purchased by the wife of the plaintiff. Further north is the property owned by the defendants and the said property is shown as B schedule property. According to the plaintiff, there is a pathway starting from the northern side of the plaint schedule property which passes through the property of the wife of the plaintiff and then enters the property of the defendants and goes towards north and then takes a turn to the east and ultimately reaches the Chirackal-Althara Panchayath road. That is shown as C schedule property. The plaintiff claimed prescriptive right of easement to the said pathway. 3. The defendants resisted the claim. They denied that there is a pathway as alleged in the plaint and also that the plaintiff had prescriptive right of easement to use the same. They contended that the plaintiff is only allowed to walk through the property. They denied the right claimed by the plaintiff and prayed for dismissal of the suit. 4. On the above pleadings, issues were raised and the parties went to trial. The evidence consists of the testimony of PWs 1 to 4 and the documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendants had DWs 1 to 4 examined and Ext.B1 marked. Exts.C1 and C1(a) are the commission report and plan. 5. The trial court, on appreciation of evidence in the case, came to the conclusion that there did exist a pathway shown as C schedule and the plaintiff was successful in establishing the prescriptive right of easement to use the same. The suit was accordingly decreed. Aggrieved defendants carried the matter in appeal. 5. The trial court, on appreciation of evidence in the case, came to the conclusion that there did exist a pathway shown as C schedule and the plaintiff was successful in establishing the prescriptive right of easement to use the same. The suit was accordingly decreed. Aggrieved defendants carried the matter in appeal. The lower appellate court, on independent evaluation of the evidence, came to an identical conclusion as that of the trial court and held that there is no merit in the appeal and accordingly dismissed the same. The aggrieved defendants have come up in appeal. 6. The following substantial question of law was raised at the time of admission of the R.S.A. When plaint C schedule property was not properly identified and demarcated whether courts below were justified in granting a decree for declaration of right of way over plaint C schedule property? 7. The main contention raised by the learned counsel for the appellants is that C schedule property was not properly identified and without which a decree could not have been granted to the plaintiff. It is also contended that there was want of evidence to show that the plaintiff has been using the pathway as of right and for the statutory period. It is further contended that at any rate the plaintiff had other means of access to his property and so he has no right to use any portion of defendants' property as a pathway. 8. Learned counsel appearing for the respondent, on the other hand, contended that both the courts below have independently considered the evidence on record and have come to an identical conclusion that C schedule pathway exists and the plaintiff and his predecessors in interest had been using the same for a long period and his right was established. It is also significant, according to the learned counsel, that going by the evidence on record, there was no other pathway available to the plaintiff. 9. After having heard the learned counsel on both sides and after having perused the records, it becomes difficult to accept the case of the defendants. The Commissioner's report shows that there does exist a pathway as alleged in the plaint and it is clearly demarcated in the report. 9. After having heard the learned counsel on both sides and after having perused the records, it becomes difficult to accept the case of the defendants. The Commissioner's report shows that there does exist a pathway as alleged in the plaint and it is clearly demarcated in the report. Both the courts below have considered the evidence in considerable detail and have come to the conclusion that the evidence adduced by the plaintiff through PWs 1 to 4 is sufficient to prove that there does exist a way and that has been used by the plaintiff and his predecessor in interest for a long time. Even though there was an attempt from the side of the appellants to establish that there is an alternate way, there is nothing to show that it is so, going by the Commissioner's report. Of course, the defendants had a contention that there are other servient owners also who had not been made as party to the suit and therefore, the suit is bad for non joinder of necessary parties. But, it is well settled by now that only those persons who caused obstructions to the pathway need be made as parties. There is no case for the plaintiff that any other persons had objected to the use of pathway by the plaintiff. 10. Both the courts below, on appreciation of evidence, had come to the conclusion that the plaintiff and his predecessor in interest has been residing in the plaint A schedule property for a long time. The circumstances and evidence clearly disclose that C schedule pathway was the only pathway available to the plaintiff. It needs to be noticed that on all the other three sides namely, southern, eastern and western side of the plaint schedule property is a thodu. 11. Learned counsel appearing for the appellants then contended that as of now, there is direct access to the Chirackal- Althara Panchayath road through the eastern side of the plaint schedule property and if that be so, it is only proper that the defendants be allowed to shift the pathway to the western boundary so that the defendants can put the rest of the property to effective use. 12. 12. In order to ascertain the possibility and feasibility of shifting the pathway towards the western side of the property held by the defendants, this Court, by order dated 30.06.2014, had directed the trial court to depute the same Commissioner who had prepared Exts.C1 and C1(a), report and plan. The said Commissioner has filed a report and plan which are marked as Exts.C2 and C2(a). 13. On receipt of the Commissioner's report, learned counsel appearing for the respondent raised strong objection in shifting the pathway towards the western boundary of the property and insisted that it should continue on the eastern side. But, he was amenable to a course of shifting the pathway further towards the eastern side of the property owned by the defendants. 14. Learned counsel appearing for the appellants- defendants then pointed out that it is harsh on the part of the plaintiff to insist that there should have a pathway through the eastern side leaving a good portion of the property utterly useless for the defendants. If, on the other hand, the pathway which is feasible and possible with same facilities could be laid through the western boundary, the defendants can put their property to more effective use and the plaintiff can have no grievance regarding his access to the plaint A schedule property. 15. Learned counsel appearing for the appellants brought to the notice of this Court Sections 22 to 27 of the Indian Easements Act and pointed out the rights and liabilities of dominant tenement owner and servient tenement owner. It was pointed out by the learned counsel that the law envisages a situation where least burden is cast on the servient tenement and also it should not unnecessarily interfere with the use of the property by the servient owner. Learned counsel went on to point out that if, as a matter of fact, an equally effective means of access could be provided through the western boundary of the property, there is no reason as to why the plaintiff should object to that course being adopted. It was also contended by the learned counsel for the appellants that now that the plaintiff has a direct, shorter and more effective means of access through the eastern side, he actually need not use C schedule pathway. It was also contended by the learned counsel for the appellants that now that the plaintiff has a direct, shorter and more effective means of access through the eastern side, he actually need not use C schedule pathway. Even assuming that he has established prescriptive right of easement and has entitled to use the pathway, it will be only appropriate to lay the way through the western boundary so as to cast least burden on the appellants i.e. on the servient tenement. 16. Learned counsel appearing for the respondent was not amenable to such a course. Learned counsel went on to point out that the way should be through the eastern side itself and it will not be appropriate to shift it to the western boundary. 17. Learned counsel appearing for the appellants has rightly pointed out that Section 22 of the Indian Easements Act provides a right to the servient owner to determine the location of the pathway and assuming that that right may not be available in the case on hand now, nothing prevents the court from exercising its jurisdiction and directing that the pathway to be laid along the western boundary if that would render justice to the parties and would not affect the rights of the plaintiff in the case. 18. Section 22 of the Indian Easements Act cautions that the dominant owner must exercise his right in the mode which is least onerous to the servient owner and when the exercise of an easement without detriment to the dominant owner can be confined to a determinate part of the servient heritable, it could be so done. Section 23 of the Act deals with right to alter mode of enjoyment. Section 24 of the Act deals with the right of dominant owner to do certain act for the full enjoyment of easement. Section 25 of the Act casts liability on the dominant owner to do necessary repairs for the preservation of easement. Section 27 of the Act stipulates that servient owner is not bound to do anything for the proper enjoyment of the right of easement. 19. A reference to Exts.C2 and C2(a) show that it is possible to lay a pathway along the western boundary of the defendants' property. Of course, there are some trees standing along the boundary and also there are certain temporary constructions nearby. 19. A reference to Exts.C2 and C2(a) show that it is possible to lay a pathway along the western boundary of the defendants' property. Of course, there are some trees standing along the boundary and also there are certain temporary constructions nearby. Learned counsel appearing for the appellants pointed out that it may be specified that a proper and suitable pathway having the same width as C schedule pathway is laid along the western boundary of the defendants and they are willing to cut and remove the trees standing along the boundary and also to remove the objectionable constructions. 20. One must remember that easement is a precarious right. Law does not usually favour restricted use of one's own property. However, the law relating to easements creates a fetter on the exclusive and absolute use of property by its owner. The said law creates certain right in favour of a person to put to use the property belonging to another person. As a corollary the said law also insists that such exercise of enjoyment of right by the dominant owner must be least onerous to the servient owner. 21. The Indian Easements Act is of the year 1882. It has not undergone any major changes. As has been observed by the Apex Court in relation to the plea of adverse possession, it is felt that some rethinking is necessary in relation to which the rights conferred as per the Indian Easements Act are concerned. 22. It is said "Common law is a living system of law reacting to new events and new ideas and so capable of providing the citizens with a system of practical justice relevant to the time in which they live". 23. There have been considerable changes in all spheres of life. Considering the vast changes that have occurred in both social and cultural fields, it is only proper that the courts adopt a practical approach to meet the current demands of the society. It will not be imprudent to observe that some of the provisions of Indian Easements Act (Act 5 of 1882) require changes. It is said that the law is an instrument of social engineering and social changes. Right to property is a valuable constitutionally recognised right. 24. Law cannot be rigid and remain static. It will not be imprudent to observe that some of the provisions of Indian Easements Act (Act 5 of 1882) require changes. It is said that the law is an instrument of social engineering and social changes. Right to property is a valuable constitutionally recognised right. 24. Law cannot be rigid and remain static. It has to be dynamic and has to device method within permissible limits to modulate relief to suit the present need and ensure that justice is rendered to all. The courts will have to adopt such means to render justice to people without doing violence to statutory provisions. Even assuming that in the case on hand, Section 22 of the Easements Act is not available to the appellants, that cannot tie down the hands of the court from granting relief to them while at the same time safeguarding the interest of the respondent also. In fact, it is felt that it is the bounden duty of the court to rise to the occasion and find out reasonable grounds to grant relief. 25. The attitude of the respondent in the case on hand is like Shaylock insisting for his pound of flesh. He is unwilling to accept the re-location of the way from the eastern side of the property of the appellants to the western side. As has already been observed, Exts.C2 and C2(a) do indicate that such shifting can be done thereby ameliorating the agony of the servient owner while at the time of ensuring the protection of the accrued right of the plaintiff in the suit. 26. If the plea was one of easement by necessity, surely with the coming into existence of another suitable alternate way, the dominant owner's right to continue to use the present pathway comes to an end here. The claim made is one of prescriptive right of easement and the right got crystallized by the passing of the decree. 27. The principle that emerges from the above foregoing discussion is that there can be no impediment for the court to determine what is just and reasonable and grant decree accordingly. One may recall here that even if the way now claimed is shifted further to the east of the property of the defendants, it does not help the defendants and a considerable portion of the property will have to be kept idle. One may recall here that even if the way now claimed is shifted further to the east of the property of the defendants, it does not help the defendants and a considerable portion of the property will have to be kept idle. That certainly cannot be the object and purpose of the Act. 28. It is in the above context that the readiness and willingness expressed by the appellants to provide an unobstructed pathway of the same width along the western boundary of the property will have to be considered. The Commissioner who was deputed from the court has in his report and plan namely, Exts.C2 and C2(a) mentioned about some standing trees and temporary constructions in the area where the proposed way is to be laid. The appellants have assured this Court that all those obstructions and constructions will be removed and trees will be cut down and a proper pathway will be laid without affecting the right of the plaintiff in the suit. 29. Section 22 of the Indian Easements Act, as already stated, enables the servient owner to specify the route. The other provisions of the Act as already referred to deal with the rights and liabilities of dominant owner and servient owner. One fact is very clear. The exercise of right of easement by dominant owner is subject to the condition that it imposes least burden on the servient tenement owner and does not interfere with the right of enjoyment of his properties subject to the right of the dominant tenement owner. 30. There can be no fetter on the court from making adequate provisions for the exercise of respective rights of both the parties. 31. Price of land is skyrocketing day by day. Every inch of land has become substantial asset. Unlike in the olden days, we seldom find property left open and uncared for. It is therefore necessary to strike a balance of the two rights namely that of dominant tenement owner and servient tenement owner. In the facts and circumstances of the case, it will be imprudent and unwise for the court to keep its hands tied and in fact one could even say that the court will be failing in its duty of rendering justice if it does not extend a helping hand to the servient owner without affecting the rights of the dominant tenement owner. 32. 32. Orthodox conservative legal system may raise its eyebrows and may even condemn the action of the court in such cases. But gone are the days of such attitude on strict adherence to the letter of law even when it resulted in injustice. A court needs to innovate, experiment and if necessary find out means to render justice to all. When the legislature remains passive to archaic law which may not accommodate the social, cultural and political changes in the society, a duty is cast upon the court to take adequate and necessary steps and device methods to resolve the disputes satisfactorily. 33. Under the above circumstances and in the light of necessity to development laws to respond to the needs and necessities of the society, it is felt that the appellants be allowed to re-align the way over which the plaintiff in the suit has successfully established prescriptive right of easement. In the result, the appeal is partly allowed and a decree is passed in the following terms. 1) It is declared that the plaintiff in the suit has a prescriptive right of easement to use a pathway running through the plaint B schedule property belonging to the defendants. 2) The pathway shown as C schedule and identified in Exts.C1 and C1 (a) report and plan shall be re-aligned to run along the western boundary of the defendants' property as suggested in Exts.C2 and C2(a) report and plan. 3) The defendants shall ensure that the re-aligned pathway has a uniform width of 1 metre throughout and it shall be made available for use by the plaintiff without any obstruction or hindrance by removing the trees standing and also objectionable structures noticed by the Commissioner in Exts.C2 and C2(a). 4) Till such re-alignment is made, the plaintiff will be allowed to use C schedule pathway as shown in Exts.C1 and C1(a). 5) Once the re-alignment is made and the matter is brought to the notice of the trial court, the trial court shall depute the same Commissioner who prepared Exts.C1, C1(a), C2 and C2(a) to verify the conditions and feasibility for use of way by the plaintiff. 6) On filing of the report by the Commissioner, the trial court shall accept the said report and plan and they shall form a part of the decree. 6) On filing of the report by the Commissioner, the trial court shall accept the said report and plan and they shall form a part of the decree. 7) On acceptance of such report and plan, C schedule pathway as shown in Ext.C1 and C1(a) shall cease to exist and the prescriptive right of easement established by the plaintiff shall be confined to the re-aligned route. 8) It is also made clear that on re-alignment and its approval by the court, for all purposes the re-aligned route shall be treated as the way that has always been in existence and use of which the right of plaintiff has been recognised and declared by the courts and consequently, C schedule as shown in Exts.C1 and C1(a) will be treated to have never been in existence. Parties to suffer their costs.