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2017 DIGILAW 329 (KER)

RADHAKRISHNAN NAIR v. OMANAKUTTAN PILLAI

2017-02-16

B.KEMAL PASHA

body2017
JUDGMENT : Challenging the concurrent findings entered by the Munsiff's Court, Karunagappally in O.S.No.189 of 2013 followed by those of the Subordinate Judge's Court, Karunagappally in A.S.No.78 of 2015, the plaintiffs in O.S.No.189/2013 has come with this second appeal. 2. The suit is one for declaration of the prescriptive right of easement of the plaintiffs over plaint C schedule property as a pathway for having access to the northern public road from plaint A schedule properties. 3. The case of the plaintiffs is that plaint A schedule item No.1 having an extent of four cents belongs to the first plaintiff and plaint A schedule item No.2 property having an extent of four cents belongs to the 2nd plaintiff. The plaint B schedule property belongs to the defendant. Major portions of plaint B schedule is situated at the northern side of plaint A schedule item No.2 property and the remaining portions of the plaint B schedule item is situated at the eastern side of plaint A schedule item No.2 property. The said portions of plaint B schedule property situated at the eastern side of plaint A schedule item No.2 property which extends up to the northern Panchayat road is lying as a pathway. 4. The 2nd plaintiff is the first plaintiff's elder brother's wife. According to the plaintiffs, the said pathway presently extends up to the 18 cents of property of the defendant situated at the southern side of 30 cents of property belonging to one Haseena. The said property of Haseena is situated at the southern side of the plaint A schedule properties. According to the plaintiffs, their predecessors-in-interest of the property and in continuation the plaintiffs, have been making use of the said eastern pathway for having access from plaint A schedule items to the northern Panchayat road as well as having access to the said properties from the said Panchayat road, for the last more than 100 years. It has been specifically pleaded that the plaintiffs and their predecessors-in-interest have been making use of the pathway for more than 100 years as of right, openly, continuously and uninterruptedly and therefore, they have right by way of easement by prescription over plaint C schedule property for making use of the same as a pathway. It has been specifically pleaded that the plaintiffs and their predecessors-in-interest have been making use of the pathway for more than 100 years as of right, openly, continuously and uninterruptedly and therefore, they have right by way of easement by prescription over plaint C schedule property for making use of the same as a pathway. According to the plaintiffs, their user of the plaint C schedule pathway was attempted to be obstructed by the defendant and his family members and consequently they had to file the suit. 5. The defendant contended that there is no such pathway as plaint C schedule in existence; whereas, the said portion being claimed as a pathway by the plaintiffs is the property of the defendant. According to the defendant, 22 cents of property of which the plaint A schedule items were a part was the property of late Balakrishnan Nair, who is none other than the father of the first plaintiff, and that Balakrishnan Nair gave the said properties to his children including the first plaintiff. It is their case that the said 22 cents of property was abutting the northern Panchayat road, and when such severance of tenements were there, it is for them to carve out a pathway to the various portions of the said properties. It is specifically contended that the plaintiffs have no occasion to make use of the eastern portion of the plaint B schedule as a pathway. According to the defendant, on 09.04.2013 he along with one Haseena, whose property is situated at the southern side of plaint A schedule properties, had entered into an agreement for making use of the eastern portion of the plaint B schedule property as well as Haseena's property, as a pathway for Haseena to have access to her property and also for the defendant to have access to his 18 cents of property situated at the southern side of Haseena's property. According to the defendant, no other persons have any right to make use of the said portion as a pathway. 6. After recording the evidence and on hearing both the sides, the trial court took the view that the plaintiffs had failed to prove all the ingredients required to constitute a claim of easement by prescription. The trial court dismissed the suit with costs. Aggrieved by the said judgment and decree, the plaintiffs preferred A.S.No.78/2015 before the Subordinate Judge's Court, Karunagappally. After recording the evidence and on hearing both the sides, the trial court took the view that the plaintiffs had failed to prove all the ingredients required to constitute a claim of easement by prescription. The trial court dismissed the suit with costs. Aggrieved by the said judgment and decree, the plaintiffs preferred A.S.No.78/2015 before the Subordinate Judge's Court, Karunagappally. The lower appellate court concurred with the findings entered by the trial court and has further found that the plaintiffs have not pleaded all the ingredients for claiming prescriptive right of easement. The appeal was also dismissed with costs. 7. This Court has admitted this second appeal on the following substantial questions of law: "(i) Whether the courts below are justified in rejecting the prayer for declaration and injunction despite the existence of pleadings and evidence, by relying on conjectures and surmises on the basis of the false case set up by the defendant? (ii) Whether the courts below are justified in entering into a finding that there is no probability of plaintiffs using the C schedule way in the light of existence of properties of the relatives in the neighbourhood, ignoring the fact that defendant is also an alienee of the property owned and possessed by a common ancestress?" 8. Heard the learned counsel for the appellants and the learned counsel for the respondent. Both the learned counsel have taken this Court through the entire evidence in this case and also the impugned judgments passed by the courts below. 9. At the very out set, it has to be noted that the observation made by the lower appellate court that all the ingredients to attract a claim of easement by prescription have not been pleaded by the plaintiffs, is wholly unfounded. In the plaint, all the ingredients to invite a claim of easement by prescription have been specifically pleaded. Regarding the findings entered by the trial court, it seems that the trial court has weighed the evidence and appreciated the evidence in such a way as the trial court was dealing with a criminal case against the accused. Instead of weighing the evidence through preponderance of probabilities, what was done by the trial court was an analysis of evidence by applying the principle of "beyond reasonable doubt". 10. Instead of weighing the evidence through preponderance of probabilities, what was done by the trial court was an analysis of evidence by applying the principle of "beyond reasonable doubt". 10. The claim of the plaintiffs was that their predecessors-in-interest of the property at first and in continuation thereof, the plaintiffs have been making use of the plaint C schedule pathway as of right continuously and uninterruptedly for having access to the northern Panchayat road from their properties, for the last more than 100 years. The specific case of the defendant is that late Balakrishnan Nair, who is the father of the first plaintiff, had 22 cents of property abutting the said Panchayat road, and plaint A schedule items are part of the said 22 cents and therefore, they had no occasion to make use of the so-called plaint C schedule item for having access to the Panchayat road. 11. At the same time, no evidence has been forthcoming to the effect that late Balakrishnan Nair had acquired 22 cents of property there, and that there was severance of tenements as far as the said item of property was concerned. Even if severance of tenements was there, if the plaintiffs could prove the continued user of plaint C schedule item openly and uninterruptedly, and as of right for more than 20 years as a pathway, the defendant cannot resist or obstruct the continued user of such pathway. 12. When the suit was filed, a Commission was taken out. The Commissioner visited the property and prepared Ext.C1 report and Ext.C1(a) sketch. In Ext.C1 report it has been clearly stated that the only pathway for the plaintiffs to have access to the Panchayat road and back to their properties, is the portion shown as plaint C schedule. The Commissioner could not find any pathway in existence for enabling the plaintiffs to have access to the northern road. Ext.C1(a) rough sketch has also been prepared by the Commissioner, which also shows the lie of the properties including the plaint C schedule pathway. At the same time, with the aid of a rough sketch, no court can grant a decree for a declaration of easement by prescription over such a property when the same is not correctly identifiable. The plaintiffs have not cared to take out a Commission for the survey of the properties including the plaint C schedule. At the same time, with the aid of a rough sketch, no court can grant a decree for a declaration of easement by prescription over such a property when the same is not correctly identifiable. The plaintiffs have not cared to take out a Commission for the survey of the properties including the plaint C schedule. Unless and until the survey plan is there showing the location of plaint C schedule item, a court cannot pass a decree for a declaration as prayed for. 13. In order to discard the evidence of PW2 and PW3, the trial court made some observations, which are beyond the scope of appreciating the evidence through preponderance of probabilities. Of course, the plaintiff could have examined at least one more witness to prove that all along the parties have been making use of plaint C schedule as the pathway and there was no alternate pathway for the plaintiffs to make use of. Over and above it, the plaintiffs have to get a Commission appointed with the aid of a surveyor to prepare a plan showing the measurements and location of plaint A schedule items 1 and 2, plaint B schedule, and plaint C schedule. It seems that presently the plaintiffs have no pathway other than plaint C schedule property to have access to the Panchayat road from the properties of the plaintiffs. 14. The learned counsel for the appellants has pointed out that after the dismissal of the appeal by the lower appellate court, the defendant has put up a gate at the mouth of plaint C schedule property which opens to the northern Panchayat road and strangely enough, presently he has installed a lock also to the gate thereby totally obstructing the entry of the plaintiffs into the pathway. It has also been pointed out by the learned counsel for the plaintiffs that the defendant has put up a fencing at the western boundary of plaint C schedule for totally obstructing the plaintiffs to have an entry to their property from C schedule property. 15. All along the pendency of the suit, there was an order of temporary injunction restraining the defendant from obstructing the user of plaint C schedule property as a pathway by the plaintiffs. For the reasons mentioned above, this Court is satisfied that the judgments and decrees passed by both the courts below are liable to be set aside. 15. All along the pendency of the suit, there was an order of temporary injunction restraining the defendant from obstructing the user of plaint C schedule property as a pathway by the plaintiffs. For the reasons mentioned above, this Court is satisfied that the judgments and decrees passed by both the courts below are liable to be set aside. The matter requires fresh consideration, in accordance with law. Therefore, the suit has to be remitted to the trial court for fresh disposal in accordance with law. The trial court shall give an opportunity to the plaintiffs to get a Commissioner appointed with the aid of a surveyor for preparing a plan showing the lie, location and measurements of the plaint schedule properties, including the plaint C schedule property. In case amendment of pleadings is required, both the sides can do it. Both the parties shall be given opportunity to adduce further evidence, if so advised. In the result, this Second Appeal is allowed and the judgments and decrees passed by both the courts below are set aside. The suit is remitted to the trial court for fresh disposal in accordance with law. The order of temporary injunction passed by the trial court as such shall continue till the disposal of the suit. It is made clear that the defendant shall not obstruct the peaceful user of the pathway described as plaint C schedule item by the plaintiffs, and shall forthwith remove the fencing from the western side of plaint C schedule for appropriate length to have a gateway to plaint A schedule properties from plaint C schedule. Both parties shall appear before the trial court on 14.03.2017. All the interlocutory applications in this appeal are closed.