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2024 DIGILAW 101 (KAR)

Mukkaattira Pemmaiah v. Mukkatira Jaya

2024-02-02

H.P.SANDESH

body2024
JUDGMENT H.P. Sandesh, J. This appeal is filed by the defendant challenging the judgment and decree passed in the original suit as well as in the regular appeal wherein confirmed the judgment and decree of the Trial Court. 2. Heard the learned counsel appearing for the respective parties. 3. The factual matrix of the case of the plaintiff before the Trial Court that the plaintiff is the absolute owner in possession of bane lands bearing Sy.Nos.322/2, 322/3 and 322/4 cultivated with coffee and other crops and also the wet lands bearing Sy.No.310 situated at Nalavathoklu village, Amanthi Nad. The plaintiff's house and other establishment are situated in Sy.No.322/4. In the year 1970, under an oral partition between the plaintiff, his father Karumbaiah and brothers, the above said properties along with other properties devolved to the share of the plaintiff. In the year 1980, the plaintiff has cultivated the bane lands bearing Sy.Nos.322/2, 322/3 with coffee and other crops and CRC of the said properties has been registered in the name of the plaintiff. It is also the case of the plaintiff that for the last 50 years, the plaintiff and his father has been using the suit schedule road openly, peacefully with the knowledge of the defendant and his father Muthanna without any obstruction and acquired as easement. The plaintiff's father died in the year 1978. The defendant is the owner of the properties bearing Sy.Nos.322/6, 322/7 and those properties are situated in between the properties of the plaintiff bearing Sy.Nos.322/4, 322/2, 322/3 and 310. The suit schedule road is separately fenced on both sides and demarcated with specific boundaries and it has been more particularly described in the rough sketch annexed to the plaint. The suit schedule road is marked as 'A', 'B' and 'C' in the rough sketch and the plaintiff has put up the gate at the point 'C'. 4. It is the contention of the plaintiff that on 18.05.1933, the defendant has unlawfully trespassed into the suit schedule road and removed a portion of the fence on the western side of the road and caused damage to the extent of Rs.1,000/-. The defendant has threatened the plaintiff stating that he will block the suit schedule road at point 'B' and prevent the plaintiff from using the said road. The defendant has threatened the plaintiff stating that he will block the suit schedule road at point 'B' and prevent the plaintiff from using the said road. The defendant has already formed a new road to his wet lands in order to block the suit schedule road. The plaintiff has no other alternative road to reach his coffee cultivated lands and wet lands situated at the southern side of the suit schedule road. It is also the case of the plaintiff that on 20.05.2003, the plaintiff has filed a complaint to the Circle Inspector of Police and the police visited the spot and warned the defendant not to block the said road and not to obstruct the use of the road by the plaintiff. With an ulterior motive and for wrongful gain, the defendant has removed a portion of the fence of the suit schedule road and made an attempt to block the same but it was resisted by the plaintiff. 5. The plaintiff also amended the plaint contending that on 02.06.2003, the defendant has unlawfully put up the iron gate at the entrance of the properties bearing Sy.No.322/6 in order to prevent the plaintiff from using the suit schedule road and in the third week of June, 2003, the defendant has removed remaining portion of the fence and cuttings on either side of the suit schedule road and planted coffee, papaya and other fruit bearing trees on either side of the suit schedule road, where the said fence and cuttings were in existence. The said gate was put up at point 'B' shown in the rough sketch. The fence and cuttings were removed on either side of the suit schedule road from point 'B' to 'C' and planted the trees as stated above. Due to the above said act of the defendant, the plaintiff is not in a position to use the suit schedule road freely and the gates will obstruct the passage of heavy and loaded vehicles. The defendant has installed the gate and planted trees to prevent the plaintiff from enjoying the suit schedule road freely. Hence, filed the suit. 6. In pursuance of suit summons, the defendant appeared and filed the written statement denying the averments made in the plaint. The defendant has installed the gate and planted trees to prevent the plaintiff from enjoying the suit schedule road freely. Hence, filed the suit. 6. In pursuance of suit summons, the defendant appeared and filed the written statement denying the averments made in the plaint. The defendant contended that Nalvathoklu-Bittangal road was formed about 25 years back and road was formed in the wet land bearing Sy.No.310 belonging to the share of late M S Kariappa. The said road is not marked in the village plan even today. The mud road was constructed in the year 1990 by the defendant hence, the question of using the said road by the plaintiff and his father for the last 50 years does not arise and prior to that there was irregular footpath on the land covered with jungle. The defendant has ridiculed the claim of the plaintiff that himself and his father have been using the suit schedule road for the last 50 years as meaningless since the plaintiff is aged 52 years only. The defendant submits that Muthanna died in the year 1976. The property in Sy.No.310 of 9 acres in extent belongs to 4 branches of the Mukkattire family and not exclusively to the plaintiff. The defendant admitted his ownership in respect of Sy.No.322/6 and 322/7 and it is situated in between Sy.Nos.322/3 and 322/4. The defendant admitted that the plaintiff has erected an iron gate at the entrance of Sy.No.322/3 in the year 1995. It is also contended in the written statement that the plaintiff was making use of the suit schedule road without any obstruction from the defendant or anyone else. The defendant was also using the continuation of the said mud road through Sy.No.322/3 and 322/5 to go the house of the family members, the labour colony in the paisary land to bring the labourers to his estate and occasionally to the electric transformer situated in the land of Nayanda Ponnappa when there is power failure. As per the partition mahazar dated 20.05.1977 executed between the plaintiff and his father and other branch members Poonacha and Uthappa, the parties agreed to provide 10 cents of land for the purpose of graveyard which is now left vacant as shown in the mahazar near the gate of the plaintiff. 7. As per the partition mahazar dated 20.05.1977 executed between the plaintiff and his father and other branch members Poonacha and Uthappa, the parties agreed to provide 10 cents of land for the purpose of graveyard which is now left vacant as shown in the mahazar near the gate of the plaintiff. 7. The Trial Court having considered the pleadings of the parties framed the Issues and allowed the parties to lead their evidence. Accordingly, plaintiff examined himself as PW1 and also examined two witnesses as PW2 and PW3 and got marked the documents at Ex.P1 to P10. On the other hand, the defendant examined himself as DW1 and also examined two witnesses as DW2 and DW3 and got marked the documents at Ex.D1 and D2. The Court Commissioner also appointed and his report is marked as Ex.C1 and rough sketch is marked as Ex.C2. The Trial Court having considered the material available on record answered issue Nos.1 to 5 as affirmative that the plaintiff has acquired the esamentary right over the suit schedule road by prescription and the defendant has interfered with the enjoyment of the suit schedule road and hence, the plaintiff is entitled for the relief of declaration as well as permanent injunction and mandatory injunction and answered issue Nos.6 to 9 as negative declining to pass any order in respect of the counter claim made by the defendant. 8. Being aggrieved by the judgment and decree of the Trial Court, an appeal was filed in R.A.No.44/2006. Having considered the grounds urged in the appeal memo, the First Appellate Court also formulated the point that whether the plaintiff proves that he has acquired the easementary right of way over the schedule property by prescription and defendant has erected the gate at point 'B' so as to block the road and thereby caused obstruction to him in making use of the suit schedule road and answered point No.1 as affirmative and answered point No.3 as negative in coming to the conclusion that the defendant has not proved that the plaintiff has put up a lock to his gate and prevented him from making use of the counter claim road and held that the judgment and decree of the Trial Court does not require any interference and dismissed the appeal and confirmed the judgment and decree of the Trial Court. 9. 9. Being aggrieved by both the orders, the present appeal is filed before this Court. This Court also disposed of the appeal and the same was challenged before the Apex Court in Civil Appeal No.1502/2011 wherein the Apex Court set aside the order of this Court and the matter was remanded to the High Court for disposal of the second appeal in accordance with law without expressing any opinion on merits. The Apex Court taking into note of the relationship between the parties and respective situation plaintiff their properties, directed the High Court to refer the matter to the Bangalore Mediation Centre for attempting a negotiated settlement before taking up for final hearing on merits. Accordingly, the matter was referred to the Mediation Centre and directed the parties to appear before the Bangalore Mediation Centre on 25.05.2011 at 11.00 a.m. and the same was returned stating that the parties could not reach the settlement on terms. Hence, this Court heard the arguments of the learned counsel for the respective parties on merits. 10. At the time of admission, the following substantial question of law was framed by this Court for consideration of the appeal: Whether the Courts below were justified in granting a decree of mandatory injunction directing removal of the gate which is erected by the defendant in the road which belongs to him over which, easmentary right has been declared in favour of the plaintiff, for the plaintiff to enjoy? 11. The counsel for the appellant in his argument would vehemently contend that the suit was filed for the relief of right of way claiming easmentary right, declaration, permanent injunction and mandatory injunction. The main contention of the counsel appearing for the appellant that plaintiff has given permissive nature to use the said road and no easmentary right is conferred upon the plaintiff. The counsel also would vehemently contend that Ex.P10 is the rough sketch which is filed along with the plaint while seeking the relief of declaration and other consequential relief. The counsel for the appellant restricted his argument only with regard to granting of easementary right and not pressing his counter claim in respect of 'C' property which is shown in the sketch. The counsel also would vehemently contend that the gate which installed at point 'B' as shown in the sketch is only a restricted gate. The counsel for the appellant restricted his argument only with regard to granting of easementary right and not pressing his counter claim in respect of 'C' property which is shown in the sketch. The counsel also would vehemently contend that the gate which installed at point 'B' as shown in the sketch is only a restricted gate. The counsel also would vehemently contend that there is no dispute with regard to putting put up of gate by the defendant in a place shown as 'B' in the sketch. The counsel also would vehemently contend that when the plaintiff is seeking the relief of easementary right, there must be pleading and comply with the 7 ingredients of Section 15 of the Indian Easements Act, 1882 (for short 'the Act of 1882') but no such pleading in the plaint. 12. The counsel in support of his arguments he relied upon the judgment of Kerala High Court reported in 2006 (2) KLT 636 in the case of Badariya Madrassa Committee vs Antony Robert and brought to notice of this Court paragraph 4 wherein it is held that notice was ordered on the questions of law formulated in the memorandum of appeal that it is not absolutely necessary and essential that the plaintiff in a suit for establishment of his claim for easementary right should specifically plead and prove such right over the servient tenement and also brought to notice of this Court paragraph 5 wherein discussed that it will be advantageous to bear in mind the law declared by the Apex Court and by this Court before a detailed discussion of the above questions of law formulated in the background of the facts of the case. In paragraph 6 also taken note of the judgment of the Apex Court in the case of Justiniano Antao vs Bernadette B Pereira wherein an observation is made that in order to establish a right by way of prescription one has to show that the incumbent has been using the land as of right, peacefully and openly and without any interruption for the last 20 years. The counsel also brought to notice of this Court paragraph 8 wherein also an observation is made with regard to the prescription for easementary right and seven ingredients of Section 15 of the Act i.e., (1) there must be pre-existing easement which must have been enjoyed by the dominant owner; (2) the enjoyment must have been peaceable; (3) the enjoyment must have been as an easement; (4) the enjoyment must have been as of right; (5) the right must have been enjoyed openly; (6) the enjoyment must have been for a period of twenty years and (7) the enjoyment for 20 years must have been without interruption. The counsel also brought to notice of this Court paragraph 12 wherein a discussion was made in the judgment that compliance of ingredients of Section 15 of the Indian Easements Act that no right of prescription can be declared in respect of plaint 'B' schedule property for vehicular traffic through B-schedule property. 13. The counsel relied upon the judgment of the Apex Court reported in (2005) 1 SCC 471 in the case of Justiniano Antao and Others vs Bernadettee B Pereira and brought to notice of this Court paragraph 2 with regard to the factual aspects of the case and paragraph 3 wherein discussion made with regard to the easmentary right through prescription and also brought to notice of this Court paragraph 9 wherein discussion was made that in order to establish a right by way of prescription one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. In order to establish the right of prescription to the detriment of the other party, one has to aver specific pleadings and categorical evidence. In the present case, after going through the pleadings as well as the statement of the witnesses it is more than clear that the plaintiff has failed to establish that she has been using the access peacefully, openly as of right for the last 20 years. The counsel referring this judgment would vehemently contend that very pleading of the plaintiff is lacking with regard to the usage of the said road. Hence, the question of invoking easementary right of prescription does not arise. 14. The counsel also relied upon the judgment of this Court reported in 1968 MYS. The counsel referring this judgment would vehemently contend that very pleading of the plaintiff is lacking with regard to the usage of the said road. Hence, the question of invoking easementary right of prescription does not arise. 14. The counsel also relied upon the judgment of this Court reported in 1968 MYS. L. J. 569 in the case of Narayana Shetty and Another vs B Byrappa and brought to notice of this Court Section 4 of the Easements Act denies an easement as a right of the dominant owner for the beneficial enjoyment of his land, to do and continue to do something, or to prevent and continue to prevent something being done in or upon, or in respect of the land of the servient owner. The counsel also brought to notice of this Court to Section 15 of the said Act which provides a right of way or other easement is acquired if it has been peaceably and openly enjoyed as an easement and as of right without interruption for twenty years. But the plaintiff did not allege such enjoyment as of right. If an easement cannot be acquired unless there is such enjoyment, a plea that there was the exercise of an asserted right is a fundamental requirement. 15. The counsel also relied upon the judgment of this Court reported in 1966 MYS. L. J. 71 in the case of Rudrawwa vs Balawwa and Another and contend that the scope of a suit is determined by the pleadings in the case. Any amount of evidence cannot fill up the lacuna in the pleadings. If the case is not pleaded, the same cannot be permitted. The counsel referring this judgment would vehemently contend that in the absence of specific pleading with regard to the enjoyment of the property for more than 20 years, the question of granting the relief of easementary right of prescription does not arise. 16. The counsel also would vehemently contend that in paragraph 4 of the plaint not pleaded specifically with regard to the enjoyment as of right and only in the reply in paragraph 4 pleaded the same and the same not specifies the pleading of the plaint. The plaintiff pleaded the same only after filing of the written statement hence, the counsel would vehemently contend that both the Courts have failed to take note of the same and committed an error. The plaintiff pleaded the same only after filing of the written statement hence, the counsel would vehemently contend that both the Courts have failed to take note of the same and committed an error. The finding in paragraph 29 of the judgment of the First Appellate Court that there is a pleading is not correct and the same is error in law and granting of relief of declaration and mandatory injunction is not correct and only the Court can grant permissive possession as contended by the defendant in the written statement and not entitled for the relief of easementary right. 17. Per contra, the learned counsel appearing for the respondent in his argument would vehemently contend that the Trial Court having considered both oral and documentary evidence placed on record rightly appreciated the material available on record while answering the Issues involved between the parties. The counsel brought to notice of this Court paragraph 24 of the order of the Trial Court wherein discussed with regard to the pleadings of the parties and also evidence of witnesses and particularly documents at Ex.P3 to P7 and so also in paragraph 25 the evidence of PW2, PW3, DW2 and DW3. The counsel also brought to notice of this Court to paragraph 27 wherein the Trial Court discussed about the objection raised by the defendant that the plaintiff has failed to show the enjoyment of easementary, hence, requires to be rejected. The Trial Court also taken note of existence of road shown in Ex.P10 and Ex.C2 and its user by the plaintiff in paragraph 29. The counsel also brought to notice of this Court that in paragraph 31, discussed with regard to the claim made by the plaintiff that they are cultivating the property from 1980 and residing in the house constructed by him in Sy.No.322/4 and also discussed with regard to the Court Commissioner's report in paragraph 32 and also both oral and documentary evidence placed on record with regard to obtaining of CRC issued in favour of the plaintiff on 03.12.1982. The Trial Court also taken note of the dispossession by DW1 in paragraph 35 and also detailed discussion made in paragraphs 38 to 40 and so also in paragraph 43 and 44. The Trial Court also taken note of the dispossession by DW1 in paragraph 35 and also detailed discussion made in paragraphs 38 to 40 and so also in paragraph 43 and 44. The counsel referring the findings of the Trial Court would vehemently contend that the Trial Court not committed any error and properly appreciated both oral and documentary evidence placed on record while decreeing the suit. 18. The counsel for the respondent in his argument would vehemently contend that it is emerged in the evidence that gate was put before 15 days of filing of written statement and the same is emerged during the course of evidence and the same has been considered. The counsel also would vehemently contend that the First Appellate Court also in paragraph 20 discussed with regard to the pleadings of the parties and also in keeping the judgment of this Court in the case of Narayana Shetty (referred supra) and in paragraph 22, the First Appellate Court having carefully examined both oral and documentary evidence placed on record and also the Commissioner report, sketch and Ex.P3 to P7 held that the documents show the possession of the plaintiff over the property bearing Sy.No.322/3, 322/4, 310, 322/2P. The First Appellate Court also considered the sketch marked at Ex.P10 with regard to the existence of the road which is shown as 'A', 'B' and 'C' and also discussed in detail in paragraph 23 and so also in paragraph 24 with regard to the commissioner's report and in paragraph 26 discussed with regard to obtaining of CRC in the year 1982 and he has cultivated his land from 1975 and also held that DW1 also admitted that before issuance of CRC, a survey would be conducted along with the spot inspection and issuance of CRC may take two to three years. In paragraph 30, the First Appellate Court observed with regard to that the gate which has been installed by the defendant would cause obstruction to the enjoyment of the suit schedule property by the plaintiff or not. Thus, both the Trial Court and the First Appellate Court has not committed any error in granting the relief in favour of the plaintiff. Hence, it does not requires any interference. 19. Thus, both the Trial Court and the First Appellate Court has not committed any error in granting the relief in favour of the plaintiff. Hence, it does not requires any interference. 19. The counsel for the appellant in his reply, he would vehemently contend that even this Court can frame additional substantial question of law with regard to as of right which is not pleaded also can be a substantial question of law. The counsel also would vehemently contend that both the Courts come to the conclusion that the plaintiff and his father are enjoying the property from 1980 onwards and not for the past 50 years as contended by the plaintiff. Hence, it requires interference. 20. Having heard the learned counsel appearing for the respective parties and also considering the substantial question of law framed by this Court, this Court has to reanalyze the material available on record. The counsel for the appellant did not press his contention with regard to the counter claim. The main contention urged by the counsel for the appellant that it is only a permissive in nature for use of the road and no easmentary right can be granted in favour of the plaintiff. The counsel also brought to notice of this Court that there must be a specific pleading of as of right and in the absence of any pleading, the Trial Court and the First Appellate Court ought not to have granted the relief of easmentary right. The counsel also brought to notice of this Court to the seven ingredients of Section 15 of the Act of 1882 which mentioned as below: (1) there must be pre-exiting easement which must have been enjoyed by the dominant owner; (2) the enjoyment must have been peaceable; (3) the enjoyment must have been as an easement; (4) the enjoyment must have been as of right; (5) the right must have been enjoyed openly; (6) the enjoyment must have been for a period of twenty years and (7) the enjoyment for 20 years must have been without interruption and the same is referred in the case of Badariya Madrassa Committee referred supra. 21. The main contention of the counsel for the appellant that it is only a permissive in nature and no easementary right can be granted in favour of the plaintiff. 21. The main contention of the counsel for the appellant that it is only a permissive in nature and no easementary right can be granted in favour of the plaintiff. No doubt, the judgments which have been referred supra by the appellant with regard to the easement of prescription, the Apex Court held in Justiniano Antao's case referred supra that, it is very clear that the acquisition of right of way by prescription it has to be shown that incumbent has been using said land as of right peacefully and openly and without any interruption for the past twenty years, specific pleadings have to be averred and categorical evidence led in general, and specifically in respect of dates between which right of way concerned has been used for at least twenty years. 22. No doubt, other judgments of this Court also very clear with regard to defining of easement as a right of the dominant owner of the beneficial enjoyment of his land in Narayana Shetty's case referred supra. In Rudrawwa's case referred supra, it is very clear that the scope of a suit is determined by the pleadings and if the case is not pleaded, the same cannot be permitted. In keeping the principles laid down in the judgments referred supra and also the contentions urged by the appellant, this Court has to take note of the averments of the plaint. 23. The plaintiff has pleaded in paragraph 3 that there was an oral partition between the plaintiff and his father in the year 1970 and it is also his pleading that the properties mentioned in the suit and other properties came to the share of the plaintiff and the plaintiff has cultivated the same by growing coffee and other crops. It is also pleading in paragraph 4 that the plaintiff and his father were enjoying the said road in order to reach the plaintiff's properties bearing Sy.No.322/2, 322/3 and 310 which is morefully described in the schedule. It is also specific pleading that for the last 50 years, the plaintiff and his father has been using the suit schedule road openly, peacefully with the knowledge of the defendant and his father Muthanna without any obstruction from them. It is also specific pleading that for the last 50 years, the plaintiff and his father has been using the suit schedule road openly, peacefully with the knowledge of the defendant and his father Muthanna without any obstruction from them. No doubt, in paragraph 4 of the plaint, it is not specifically pleaded that as of right but pleading is very clear that for the last 50 years, the plaintiff and his father were using the schedule road openly, peacefully and continuously without any obstructions from the defendant and his father. 24. It is not in dispute that the defendant is the owner of the property bearing Sy.No.322/6 and 322/7 and those properties are situated in between the properties of the plaintiff. It is also pleaded that the suit schedule road is separately fenced on both the sides and demarcated with specific boundaries and the same has been described in the rough sketch at Ex.P10 as 'A', 'B' and 'C'. It is also not in dispute that the suit schedule road is blocked at the point of 'B' and the same is also not denied by the defendant. The main contention of the defendant that throughout in the cross-examination of PW1 to PW3 it is stated that it is only a permissive in nature. In the crossexamination of PW1 to PW3, the very same question was put to them but they have denied the same. It is also emerged in the evidence of witnesses that except the said road, no other road is in existence to reach the property of the plaintiff. 25. It is also important to note that in the evidence of PW1 to PW3, they have specifically stated that the property was cultivated in the year 1980 and CRC was obtained in the year 1982. The defendant also not denied the fact that the plaintiff has obtained the CRC. It is also important to note that they have categorically admitted that in order to get the CRC, it takes 11/z to 2 years. Hence, it is clear that an application was made to get the CRC in the year 1980 itself. The said fact is also not disputed by the defendant. It is also important to note that they have categorically admitted that in order to get the CRC, it takes 11/z to 2 years. Hence, it is clear that an application was made to get the CRC in the year 1980 itself. The said fact is also not disputed by the defendant. The rough sketch also clearly discloses that new road is also formed to connect Bittangala road and the said road is only to reach the land of the defendant and the plaintiff is not having any such connected road. The suit was filed in the year 2003 and the material also discloses that cultivation is from 1980 onwards and it is clear that the suit was filed after 23 years wherein specific pleading is made that the plaintiff is enjoying the suit schedule road uninterruptedly in order to access their property, hence, the very condition of Section 15 of the Act of 1882 that the right of prescription accrues after 20 years also satisfied for the relief of easement of prescription. It is also important to note that DW1 also in the cross-examination admitted that the plaintiff's father also cultivated the property in Sy.No.310 and the said admission is found in page 5 of DW1's cross-examination. 26. It is also admitted by the defendant that Sy.No.322/2, 322/3, 310 are adjacent to the plaintiff's share property. He also categorically admits that he did not deny that road is not in existence in Sy.No.322/4 in his written statement. It is also admitted that he also purchased the vehicle in the year 1995. Also admission was made that the plaintiff may be is having vehicle facility from 1982. He also admits that the vehicle was coming from the very same road even prior to forming of new road. He also admits that before issuance of CRC, spot inspection was conducted and thereafter they issued CRC. He admits that the plaintiff is not having any other alternative road to reach his property. He also admits the width of road as 10 to 12 feet. 27. He also admits that before issuance of CRC, spot inspection was conducted and thereafter they issued CRC. He admits that the plaintiff is not having any other alternative road to reach his property. He also admits the width of road as 10 to 12 feet. 27. Having considered the measurement of the road and also the admission that the plaintiff is cultivating the land prior to 1982, CRC also obtained in the year 1982 and also no other alternative road to the plaintiff, the very contention of the counsel for the appellant that the requirement and ingredients of Section 15 of the Act of 1882 has not been complied cannot be accepted. Though not specifically used the word 'as of right' in the plaint, the Court has to look into both oral and documentary evidence placed on record and also consider the fact that the properties are belongs to the ancestors of the parties is also not in dispute. It is also specific claim of the plaintiff that there was a partition among the family members prior to 1970 and the same is also not denied by the defendant. DW2 also in the cross-examination admits the sketch at Ex.P10 that 'A' and 'B' point is the land of the plaintiff and point 'B' and 'C' is the land belongs to the defendant and the plaintiff also fenced his property. He also admits that the width of the road is 10 to 12 feet and heavy vehicle also passes through his land. DW3 also not disputes the sketch and he also categorically admits with regard to the road passing through Sy.No.322/6 and 322/7 thereafter Sy.No.322/2 and 322/3 and the same commences from Sy.No.322/4. He also admits that the defendant constructed the house in the year 1980. 28. Having re-assessed both oral and documentary evidence placed on record it is not in dispute that road is in existence. Though earlier the said road was smaller, the same has been used by the plaintiff and now the measurement of the road is 10 to 12 feet. The fact that same was blocked at point 'B' as admitted by the defendant is not in dispute. Hence, I do not find any error committed by both the Courts in granting the relief of mandatory injunction in favour of the plaintiff and both the Courts justified in accepting the case of the plaintiff. 29. The fact that same was blocked at point 'B' as admitted by the defendant is not in dispute. Hence, I do not find any error committed by both the Courts in granting the relief of mandatory injunction in favour of the plaintiff and both the Courts justified in accepting the case of the plaintiff. 29. It is contended by the defendant that it is only a permissive in nature but the said contention is denied by PW1 to PW3 in the cross-examination since there is no other alternative road to reach the property of the plaintiff. When the ingredients of Section 15 has been complied by the plaintiff, the contention of the defendant that there is no proper pleadings and evidence cannot be accepted because there is a specific pleading that the plaintiff and his father are using the said road for the past 50 years. Hence, it is clear that from 1970 onwards from the date of partition, the plaintiff and his father are cultivating the said property and also obtained CRC from the concerned department. There is also an admission that in order to issue CRC, spot inspection is necessary and thereafter only CRC will be issued. More than 20 years as prescribed under Section 15 of the Act of 1882, road is used by the plaintiff, even if no evidence for more than 50 years usage as contended by the plaintiff, but material clearly discloses usage of road for more than 20 years. The ingredients of pre-existing easement enjoyed by the dominant owner as against the servient owner and the enjoyment is peaceful is established 'as of right'. The usage is open for more than 20 years without interruption is established. The ingredients of Section is complied and the principles laid in the judgment of the Apex Court in Justiniano Antao's case and the judgment of the Kerala High Court in Badariya Madrassa Committee's case which have been relied upon by the learned counsel for the respondent comes to the aid of the respondent and the same are not helpful to the appellant. Hence, I do not find any error committed by both the Courts in recognizing the right of easement of the plaintiff. Thus, the judgments relied upon by the appellant's counsel will not come to the aid of the appellant having considered the facts of the case on hand. Hence, I do not find any error committed by both the Courts in recognizing the right of easement of the plaintiff. Thus, the judgments relied upon by the appellant's counsel will not come to the aid of the appellant having considered the facts of the case on hand. Hence, I answer the substantial question of law as affirmative. 30. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed.