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2017 DIGILAW 195 (KER)

SATHYAN v. SUBHASHINI

2017-01-25

B.KEMAL PASHA

body2017
JUDGMENT : These two second appeals have arisen from the judgment and decree passed by the Munsiff's Court, Ernakulam in O.S.No.318/2007 as well as O.S.No.306/2007. O.S.No.318/2007 was filed by the present appellants claiming a right of easement by prescription over plaint B schedule pathway, allegedly having a length of 24 mtrs. and a width of 2 mtrs. A relief of perpetual injunction has also been sought for. The respondent herein as plaintiff filed O.S.No.306/2007 as one for perpetual injunction restraining the appellants herein from committing trespass into his property. Initially, the Munsiff's court dismissed both the suits. On the dismissal of O.S.No.318/2007, A.S.No.272/09 was preferred before the District Court, Ernakulam. On the dismissal of O.S.No.306/2007, the respondent herein preferred A.S.No.301/2009 before the District Court, Ernakulam. Both the appeals were heard together and the lower appellate court dismissed A.S.No.272/2009 and allowed A.S.No.301/2009, thereby decreeing O.S.No.306/2007. 2. Heard the learned counsel for the appellants and the learned counsel for the respondent. 3. The issue involved is very simple. The answer to both the second appeals can be had from Ext.C2 (a) sketch and Ext.C2 report filed by the learned Commissioner Advocate. Ext.C2(a) clearly gives a picture of the true state of affairs. The plaint schedule property in O.S.No.306/2007 is shown in the sketch as 18.50 cents. The said property is lying at the northern side of the Kaniyampuzha - Kadavu Road. The property of the appellants are also clearly shown in Ext.C2(a). The line building of the appellants is situated evidently at the eastern extremity of their property. The said building is situated 6.5 mtrs. away from the northern side of the Kaniyampuzha - Kadavu Road. At the northern side of the line building there is a pathway having a width of 1 mtr. and 65 cms., leading to the cosmo line public road situated at the west. The said cosmo line public road also joints the Kaniyampuzha - Kadavu Road. Strangely enough, the property situated at the northern side of the pathway, situated at the northern side of the line building, also belongs to the appellants. The first building is that of the first appellant, the next building at the northern side to it is that of the 3rd appellant and the northern most building is that of the 2nd appellant. 4. The first building is that of the first appellant, the next building at the northern side to it is that of the 3rd appellant and the northern most building is that of the 2nd appellant. 4. The Commissioner has shown in Ext.C2(a) sketch a portion wherein red soil has been put as a track situated just in front of the aforesaid houses of the appellants and through the portions of the property of the respondent. 5. The claim of the appellants is that a pathway having a width of 12 mtrs. and a length of 70 mtrs. extending south north is there and the same has been used for the last more than 70 years. Precisely, the appellants are claiming a right by way of easement by prescription over the western portion of the property of the respondent. At the same time, there are no specific pleadings in the plaint in O.S.No.318/2007 to invite a ground of easement by prescription. It has not been pleaded that the appellants have been making use of the said pathway as of right, without any interruption, openly and continuously for more than 20 years. Some vague pleadings are there; but the aforesaid grounds have not been pleaded. When the said facts have not been pleaded, the appellants are not entitled to a relief based on easement by prescription. The appellants had attempted before the trial court as well as the lower appellate court to highlight the ground of easement by prescription. They have not cared so far to amend the plaint for incorporating proper pleadings. 6. Apart from all the above, it seems that apart from the rough sketch prepared as Ext.C2(a), showing the locations of the properties, neither any survey has been carried out nor a plan carving out the pathway has been obtained. Without such a plan, no decree could be passed for the declaration of the right of easement by prescription, even if proper pleadings were incorporated. 7. The learned counsel for the appellants has pointed out that in the absence of a survey plan, the respondent is also not entitled to get a decree of perpetual injunction as the one passed by the lower appellate court. 7. The learned counsel for the appellants has pointed out that in the absence of a survey plan, the respondent is also not entitled to get a decree of perpetual injunction as the one passed by the lower appellate court. On a careful scrutiny of Ext.C2(a), sketch it seems that two survey stones have been marked in the said sketch, one evidently at the south western corner and the other one evidently at the north western corner of the property of the respondent. The western boundary of the property of the respondent is the straight line connecting the said two survey stones. Therefore, the said property is identifiable. When the appellants cannot prove their right by way of easement by prescription over any of the portions of the property of the respondent, and especially when the property of the respondent is identifiable, the respondent is entitled to get a decree of perpetual injunction as prayed for. The respondent need only plead and prove his possession over his property. In the absence of a survey plan locating the lie of the plaint B schedule property in O.S.No.318/2007, the appellants cannot sustain the claim for a decree for the declaration of the so-called easement right. Even though the learned counsel for the appellants has sought for the intervention of this Court by treating the claim of the appellants as one of easement by way of lost grant, in this particular case this aspect does not arise at all. 8. It seems that on the western side of the line building of the appellants, there is a vacant portion having a width of 1.65 mtrs. The same extends to the Kaniyampuzha - Kadavu Road. Apart from that, as pointed out earlier, there is another pathway situated at the western side of the line building which leads to the cosmo line public road having a width of 1.05 mtrs. at one place and 1.11 cms. at its end wherein it touches at the cosmo line public road. Apart from that, the said property of the appellants wherein the line building is situated, is abutting the Kaniyampuzha - Kadavu Road. When these are the state of affairs, the appellants cannot sustain a ground for easement by way of lost grant also. at its end wherein it touches at the cosmo line public road. Apart from that, the said property of the appellants wherein the line building is situated, is abutting the Kaniyampuzha - Kadavu Road. When these are the state of affairs, the appellants cannot sustain a ground for easement by way of lost grant also. Even though the learned counsel for the appellants has sought for an open remand of both these appeals, this Court is of the view that it will not improve the case of the appellants in any manner. Matters being so, I do not find any reason to interfere with the findings entered by the lower appellate court. Hence these second appeals fail and are only to be dismissed, and I do so. In the result, these Second Appeals are dismissed. All the interlocutory applications in these appeals are closed. In the nature of these appeals, the parties shall bear their respective costs.