Research › Search › Judgment

Kerala High Court · body

2019 DIGILAW 820 (KER)

V. M. Kunhikrishnan Nair, S/o. Appu Nair v. Koroth Ammalu Amma, D/o. Kunkan Nair

2019-10-11

P.SOMARAJAN

body2019
JUDGMENT : The defendants came up with this appeal aggrieved by the decree and judgment of the first appellate court granting a declaration of easement over the plaint B schedule and C schedule property. 2. The questions came up for consideration are: (I) Whether a right of way can be brought under the purview of a quasi-easement as incorporated under Section 13 of Indian Easement Act ? (II) Whether a construction of a masonry basement for the purpose of constructing a compound wall across the way or through the entire width of the way would constitute an interruption as defined under Section 15 of the Indian Easement Act ? (III) Whether the first appellate court justified in granting a decree in favour of the plaintiff granting a declaration of easement over the way ? 3. There is no dispute with respect to B schedule way. The dispute is pertaining to the C schedule having a width of 40 cms wherein admittedly a granite construction was effected as basement for the purpose of construction a compound wall. The commissioner who visited the property located both B schedule and c schedule by giving red colour to the B schedule and dark colour to the C schedule. The claim raised by the plaintiffs over the C schedule is by way of prescriptive right. B schedule way is having 40 cms lying adjoining the property of third plaintiff. Adjoining the same, the plaintiff claims the C schedule 40 cm width way lying adjoining parallel to the B schedule, so that they will get a way having a width of 80 cms. What is claimed over the C schedule is prescriptive right of easement. It is admitted in the plaint that the defendants had constructed a basement for the compound wall over the C schedule, but the date of construction was not specified or mentioned anywhere in the plaint. The defendants in turn contended that it was constructed in the year 1997-1998 for which no challenge was raised by the plaintiffs while in the box. The suit was filed in the year 2004 after a lapse of more than two years from the date of obstruction created over the B schedule by a permanent structure a basement for a construction of a compound wall. The permanent structure constructed over the property would itself operate against an easement right if any, claimed by the party concerned. The suit was filed in the year 2004 after a lapse of more than two years from the date of obstruction created over the B schedule by a permanent structure a basement for a construction of a compound wall. The permanent structure constructed over the property would itself operate against an easement right if any, claimed by the party concerned. The construction of a masonry basement over the same would constitute an interruption as defined under Section 15 of the Act by. The last ingredient that the plaintiffs who claimed prescriptive right come before the court within a period of two years from the date of obstruction/interruption not satisfied. 4. By way of amendment the plaintiff has also raised quasi easement for right of way over the C schedule property. Quasi easement defined U/S.13 Clause(b), (d) and (f). Clause(b), (d) and (f) to Section 15 of the Easement act would stand attracted only when there is an easement is apparent and continuous. What amounts to 'apparent and continuous' defined under section 5 of the Act. A continuous easement stands for something which is available without the act of man such as light, air etc. A discontinuous easement stands for something which needs the act of a man for its enjoyment such as right of way. An apparent easement stands for something visible perceivable by sign and a non apparent easement is the one which has no sign. A right of way will not satisfy continuous easement, as such, there cannot be any quasi easement for a way as claimed by the party. The first appellate court failed to appreciate the ingredient which constitutes a quasi-easement. The decree of first appellate court hence cannot be sustained liable to be set aside by restoring the decree and judgment of the trial court. This appeal is allowed. The decree and judgment of the first appellate court set aside. The suit is dismissed by restoring the decree and judgment of the trial court. No costs.