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2025 DIGILAW 113 (KER)

Thankappan, (Died) Nikathil v. Rajan, (Died) Legal Heirs Impleaded S/o. Andrews

2025-01-27

M.A.ABDUL HAKHIM

body2025
JUDGMENT : [RSA Nos.549/2011, 569/2011] 1. These two appeals arise from two suits - O.S.No.201/2006 & O.S.No. 252/2006 on the files of the Munsiff’s Court, North Paravoor. Both suits are disposed of by a common judgment by the Trial Court, and hence, both appeals are considered together. 2. The appellants in R.S.A No. 549 and 569 of 2011 are the same persons. They are the plaintiffs in O.S.No.201/2006 and the defendants in O.S.No. 252/2006. They are husband and wife. 3. The defendants in O.S.No.201/2006 are also husband and wife. The 1st defendant in O.S.No. 201/2006 is the plaintiff in O.S.No. 252/2006. 4. The parties are referred to according to their status in O.S.No.201/2006. 5. Plaint A Schedule property having an extent of 13.913 cents belonged to the 2nd plaintiff. The 1st defendant has Plaint B Schedule Property, which has an approximate extent of 47 cents, on the western side of Plaint A Schedule Property. Plaint B Schedule Property. O.S.No. 201/2006 is filed for declaration of right of way by easement by prescription and necessity over plaint C schedule pathway and consequential prohibitory injunction. Plaint C Schedule pathway is shown as having a width of 8 links and a length of 40 meters, which starts from the northwestern portion of Plaint A Schedule Property, proceeding west through the north of Plaint B Schedule Property, and proceeding to the south through the western side of Plaint B schedule property and reaches on a way which starts from the western main road and proceeding towards east. 6. O.S.No.252/2006 is filed by the first defendant in O.S.No. 201/2006 seeking a permanent prohibitory injunction on the allegation that the defendants therein, who are the plaintiffs in O.S.No. 201/2006 are attempting to cut open a pathway through Plaint A Schedule property therein. The Plaint B Schedule property in O.S.No.201/2006 is the Plaint A Schedule property in O.S.No.252/2006. 7. The material pleadings of the plaintiffs are that the 2nd plaintiff obtained Plaint A Schedule property as per Ext. The Plaint B Schedule property in O.S.No.201/2006 is the Plaint A Schedule property in O.S.No.252/2006. 7. The material pleadings of the plaintiffs are that the 2nd plaintiff obtained Plaint A Schedule property as per Ext. A1 Sale Deed dated 08.02.1985; that the Plaint A and B Schedule properties along with other properties originally belonged to one Meenakshi Kunjamma; that by virtue of Power of Attorney executed by Meenakshi Kunjamma in favour of the father of the 1st defendant - Andrews, the property was in possession and management of the father of the 1st defendant; that on 07.01.1983, the 1st plaintiff entered into an Agreement with the father of the 1st defendant for purchase of Plaint A Schedule property and entire sale consideration was paid on 31.12.1983 as per Ext. A2 and the Plaint A Schedule property were put in possession of the plaintiffs on the very same date that the plaintiffs started residing in the Plaint A Schedule property from the said date, and from the date of residence in the Plaint A Schedule property, they have been using the Plaint C Schedule pathway for accessing the main road. 8. The defendants filed a Written Statement opposing the suit prayers contending, inter alia, that Plaint C Schedule pathway is not in existence, that the plaintiffs are attempting to cut open a pathway through Plaint B schedule property, that the plaintiffs are having alternate ways to reach the main road through property purchased by the 1st plaintiff on the northern side and through another property purchased by the 2nd plaintiff on the southern side. 9. On the basis of Exts. C1 and C1 (a) Commission Report in O.S.No.201/2006 and Exts. C2 and C2 (a) Commission Report in O.S.No.252/2006, the Trial Court found the existence of Plaint C Schedule pathway through Plaint B Schedule property. The Trial Court found that the use of the pathway for the statutory period is proved by the plaintiffs on the strength of Ext. A2 document, which is admitted by the defendants, and the evidence of PW2. The claim of easement by necessity was rejected. Accordingly, the Trial Court decreed O.S.No.201/2006, grating declaration of easement by prescription over Plaint C schedule pathway and consequential injunction, and dismissed O.S.No.252/2006. 10. The defendants in O.S.No.201/2006 and the plaintiff in O.S.No.252/2006 filed A.S.Nos.31/2009 and 30/2009, respectively, before the First Appellate Court challenging the judgments and decrees in both the suits. The claim of easement by necessity was rejected. Accordingly, the Trial Court decreed O.S.No.201/2006, grating declaration of easement by prescription over Plaint C schedule pathway and consequential injunction, and dismissed O.S.No.252/2006. 10. The defendants in O.S.No.201/2006 and the plaintiff in O.S.No.252/2006 filed A.S.Nos.31/2009 and 30/2009, respectively, before the First Appellate Court challenging the judgments and decrees in both the suits. 11. The First Appellate Court confirmed the finding of the Trial Court with respect to the identity of the Plaint C Schedule property but non-suited the plaintiffs in O.S.No. 201/2006 finding that the plaintiffs did not make the specific pleadings with regard to the date of origin of the easement by prescription claimed by them in the plaint, that the Advocate Commissioner did not report the age of the plaint C schedule way and that the evidence of PW2 would not prove usage for 20 years. Accordingly, the judgments and decrees of the Trial Court were set aside, and O.S.No.201/2006 was dismissed and allowed O.S.No.252/2006. 12. This Court admitted the Regular Second Appeal on the following substantial question of law. 1. Whether the First Appellate Court was justified in reversing the decree declaring that the appellants have established their right of way by easement by prescription over Plaint C Schedule property, on the evidence on record? 13. This Court allowed both appeals as per the common judgment dated 13.01.2020, setting aside the judgment and decrees of the First Appellate Court and restoring the judgments and decrees passed by the Trial Court in both suits. 14. The said common judgment was challenged before the Hon'ble Supreme Court by filing Civil Appeal Nos. 3509-12 of 2024 by the respondents in these appeals, and the Hon'ble Supreme Court set aside the common judgment of this Court dated 13.01.2020 and remanded the matter back to this Court for fresh decision, finding that this Court allowed the Regular Second appeals without formulating substantial question of law. Accordingly, the matter has been posted for fresh consideration. 15. I heard the learned counsel for the appellants, Sri. K.P Majeed and the learned counsel for the respondents, Sri. N. Rajesh. 16. The learned counsel for the appellants contended that the finding of the First Appellate Court that pleading and evidence from the plaintiffs are not sufficient for declaring the easement over the plaint C schedule pathway is unsustainable. 15. I heard the learned counsel for the appellants, Sri. K.P Majeed and the learned counsel for the respondents, Sri. N. Rajesh. 16. The learned counsel for the appellants contended that the finding of the First Appellate Court that pleading and evidence from the plaintiffs are not sufficient for declaring the easement over the plaint C schedule pathway is unsustainable. The learned counsel for the appellants invited my attention to the pleadings in the Plaint in which the plaintiff has specifically stated that they obtained the property on 31.12.1983 and they have been using the Plaint C Schedule pathway as of right without any disturbance and continuously from the said date. The learned counsel contended that the existence of a pathway is found by both the Trial Court and the First Appellate Court. Its use from 31.12.2003 is proved by Ext.A2 Receipt, the day on which the plaintiffs got possession of the plaint A schedule property and the evidence of PW2. Hence, the judgment and decree passed by the First Appellate Court are liable to be set aside. 17. On the other hand, the learned counsel for the respondents contended that the First Appellate Court rightly rejected the claim of the easement, finding no sufficient pleading and evidence for the same, and there is nothing illegal to interfere with the judgments of the First Appellate Court. The finding of the Trial Court as well as the First Appellate Court that the Plaint C Schedule pathway is identified in Ext.C1 Report and C1(a) Plan is not correct. The Learned counsel invited my attention to the description of Plaint C Schedule as well as the Exts. C1 Commission Report and C1(a) Plan. The Trial Court ought not to have granted a Decree declaring easement relying on Ext C1(a) Rough Plan. Learned Counsel relied on the decision of this Hon’ble Court in Edakudi Raveendran @ Ravi and Others v. Lohithakshan and Another [2017 KHC 325] to substantiate the point that the Court cannot grant relief with respect to the right of way by easement in the absence of a survey plan showing the location, measurement, and lie of the pathway claimed by the plaintiff. 18. In view of the contentions raised by the respondents, the following two additional substantial questions of law are also formulated in this Appeal: 2. 18. In view of the contentions raised by the respondents, the following two additional substantial questions of law are also formulated in this Appeal: 2. Whether there is perversity in the findings of the Trial Court and the First Appellate Court that Plaint C schedule pathway is identified in Ext.C1(a) Report? 3. Whether the Trial Court was justified in granting decree declaring easement over Plaint C schedule pathway relying on Ext.C1(a) Rough Plan? 19. Accordingly, the counsels were heard further on all the questions of law. I answer the Questions of law as follows Question of Law No.1 20. As rightly contended by the learned counsel for the appellant, there are sufficient specific pleadings in the Plaint with regard to the origin of the easement claimed by the plaintiffs through the Plaint C Schedule pathway. It is specifically averred in the Plaint that the plaintiffs got possession of the plaint A schedule property on 31.12.1983 and that they have been using the pathway from the said date openly, without any objection, as of right, and without any interruption. Hence, the finding of the First Appellate Court that there is no pleading as to the date of origin of easement is incorrect. Ext. A2 would show that the plaintiffs derived possession of Plaint A Schedule property on 31/12/193, much before the execution of Ext.A1 Sale deed. Even going by Ext. A1 Sale deed it is executed on 08.02.1985, and the suit was filed on 20.03.2006 and; hence, the statutory period of 20 years would be there to claim easement by prescription. There is no need for the Advocate Commissioner to report the age of the Plaint C Schedule pathway. Even if the age of the Plaint C Schedule pathway is reported, it could only be mere guesswork and could not be relied on. Hence the First Appellate Court should not have rejected the claim of easement on the reason that the Advocate Commissioner has not reported the age of Plaint C schedule pathway. The evidence of PW2 was misconstrued and misunderstood by the First Appellate Court. Hence the First Appellate Court should not have rejected the claim of easement on the reason that the Advocate Commissioner has not reported the age of Plaint C schedule pathway. The evidence of PW2 was misconstrued and misunderstood by the First Appellate Court. PW2 has specifically stated that the plaintiffs obtained possession of the Plaint A Schedule property from Andrews in the year 1983; that on the date of the Sale Deed, the plaintiffs have been residing therein; that the plaintiffs have been using the way from the date of their residence in Plaint A Schedule property and that there is fencing separating the plaint B schedule property in its northern and western sides from plaint C schedule way. There is no indication in the evidence of PW2 that the plaintiffs have been using the way for only 8 years. DW1 admitted that Ext.A2 was issued by his father. Ext.A2 reveals that the entire consideration is paid by the plaintiffs, and they are put in possession of the plaint A schedule property on 31.12.1983. Both the plaint A and B schedule properties had been a single holding belonging to Menakshi Kunjamma. When the road is situated on the west, and the eastern portion is sold, it is quite natural that way would be provided through the western portion. Though the defendants contended that the plaintiffs have a way through the southern property of the 2nd plaintiff, it is on record that the southern property was purchased as per Ext.B4 in the year 1998. It is also in evidence that another property belonging to the brother of the 2nd plaintiff, Shaji, is situated between Plaint A schedule property and Ext.B4 property. Though the defendants contended that the plaintiffs are having way through the northern property of the 1st plaintiff, it is on record that the northern property was purchased in the year 2000 and that there is thodu separating the said property from Plaint A schedule property. So there could not be any way through the said northern and the southern properties for the Plaint A schedule property at the time of its purchase in the year 1985. Hence, I am of the view that the First Appellate Court was not right in interfering with the finding of the Trial Court that the easement by prescription claimed by the appellant is proved. Hence, I am of the view that the First Appellate Court was not right in interfering with the finding of the Trial Court that the easement by prescription claimed by the appellant is proved. The First Appellate Court was not justified in reversing the decree of the Trial Court finding that there is no pleading and evidence to prove easement by prescription. The Question of Law No.1 is answered in the negative and in favour of the appellant. Question of Law No.2 21. The description of Plaint C schedule property in the Plaint is that it starts from the northwestern portion of Plaint A Schedule property, proceeds towards the west through the northern side of B Schedule property, and thereafter turns towards the southern side through the western side of Plaint B schedule property and reaches on the way starting from the western Paravur-Chathanad road towards east and having a width of 8 links and length of 40 meters. The boundaries are shown as Plaint A and B schedule properties on the east, B schedule and the way on the south, Property of Ani John on the west, and Thodu on the north. It is clear that as per the plaint description, Plaint C schedule does not touch the main road. It touches only another way, starting from the main road towards the east. 22. Ext.C1 and C1(a) are the Commission Report and Rough Plan in O.S.No.201/2006. Ext.C2 and C2(a) are the Commission Report and Rough Plan in O.S.No.252/2006. In Ext.C2 Report, it is stated that there is an existing way on the northern and western sides of Plaint B Schedule property of the defendants. In Ext C2(a) Rough Plan also, the said way is shown. But the details of the way are absent in Ext.C2 and C2(a). 23. In Ext. C1 Report, the Advocate Commissioner has reported Plaint C Schedule pathway as a pathway starting from Plaint A Schedule property proceeding towards the western side at a length of 31 meters, turning towards south at the boundary of Johnson’s property at a length of 10 meters and thereafter goes through the middle of Plaint B Schedule property at a length of 84 meters and ends at Paravur -Chathanad main road. It is also stated that on the northern and eastern side of the starting point of the said pathway are thodu, and on the southern side is the property of the defendant. On going through the rough sketch, which is marked as Ext.C1(a), it is seen that the Advocate Commissioner has identified Plaint C Schedule pathway as the pathway starting from the northwestern corner of Plaint A Schedule property and ends at Chathanadu -Paravoor main road through the middle of Plaint B schedule property. It does not tally with the Plaint C Schedule description that the Plaint C Schedule ends at the way, starting from the main road and going towards the east. There is no description in Plaint C Schedule that the Plaint C Schedule passes through the middle of Plaint B Schedule property. The southern and western boundaries also do not tally. The total length of the pathway found by the Advocate Commissioner is 125 meters (31+10+84), whereas as per the Plaint description, it is only 40 meters. The width of the pathway is reported as 1.8 meters at the starting, thereafter 2 meters & 1.65 meters, and at the end touching the main road as 2 meters. In the plaint description, the width is 8 links, which is equivalent to 1.6 meters. It appears that the Advocate Commissioner has wrongly included the way starting from the main road and also in the plaint C schedule pathway. Even if that portion is avoided, the boundaries and measurements of the remaining portion do not tally with the plaint description. The plaintiffs do not have a case that the Plaint C schedule pathway passes through the middle of Plaint B schedule property. For these reasons, I am of the opinion that the Plaint C Schedule property is not correctly identified by the Advocate Commissioner in Exts.C1 Report and C1(a) Plan. The finding of the Trial Court and the First Appellate Court that the Plaint C schedule pathway is identified by the Advocate Commissioner in Ext.C1 and C1(a) is unsustainable, and there is perversity in the said finding. The Question of Law No.2 is answered in the affirmative and in favour of the respondents. Question of Law No.3 24. Easement is a precarious and special right which is claimed through the property of another. The Question of Law No.2 is answered in the affirmative and in favour of the respondents. Question of Law No.3 24. Easement is a precarious and special right which is claimed through the property of another. It is well settled that there should be clear and specific pleading and evidence with respect to the identity of the plaint schedule property through which the right of way is claimed and the nature of the right claimed. The said principle demands that the Decree declaring and granting easement shall also be clear and specific. Right of way by way of easement shall be granted only if the plaint schedule property through which right of way is claimed is clearly identified through a Commission. Such identification may not be necessary when the clear-cut way is there, the existence of the way is admitted, and the dispute is only regarding the rights of the claimant. Ordinarily, the Plan clearly shows the plaint schedule property through which the right of way is claimed has to be appended with the decree to avoid further dispute with respect to the subject matter. The location, lie, width, and length of the property through which the easement is declared or granted should be clearly shown in the Plan. Normally, such details could not be shown in a Rough Plan prepared by the Advocate Commissioner. It is always better to have a Survey Plan showing the location of dominant & servient heritages and the portion of the servient heritage through which easement is claimed. The length and width of the portion of the servient heritage through which easement is claimed, as well as the starting point and termination of the way, shall be specifically shown in the Survey Plan. If such details are not available before the Court, the Court shall not grant the right of easement of way. Survey Plan shall be the Rule, and Rough Plan shall be an exception in the case of easement. I am fortified to take such a view on the strength of the decision of this Court in Edakudi Raveendran (supra) cited by the learned counsel for the respondents in which this Court has specifically held that the court cannot grant relief to the plaintiffs in the absence of a survey plan showing the location, measurement, and lie of the properties including the alleged way as it had existed. 25. 25. In the case on hand, the Trial Court, as well as the First Appellate Court, found that the Plaint C schedule pathway is identified relying on Ext.C1(a) Plan. The said Plan is not appended to the decree. Reliefs are granted not with reference to Ext.C1(a) Plan. Reliefs are granted with reference to Plaint C schedule pathway, which is not identified before the Trial Court. 26. Hence, the finding of the Trial Court and the First Appellate Court that Plaint C schedule property is identified is illegal and unsustainable and liable to be set aside. It is true that the respondents did not file an appeal in this Court challenging the judgment and decree in which the First Appellate Court found that Plaint C schedule pathway is identified. In view of Order 41, Rule 22, the respondents can contend that a finding against them in the First Appellate Court judgment is unsustainable even without filing an appeal. The Question of Law No.3 is answered in the negative and in favour of the respondents. 27. I have found that the reasons given by the First Appellate Court for reversing the Trial Court judgment and Decree are unsustainable. On the basis of the said finding, the judgment and decree of the First Appellate Court is liable to be set aside. But on account of my finding that the Plaint C schedule pathway is not identified before the Court, in the normal case, the dismissal of the suit cannot be interfered with. But, since the easement by prescription is found in favour of the plaintiffs and the decree could not be granted for want of proper identification of the Plaint C schedule property, the interest of justice demands to give an opportunity to the plaintiffs to identify the Plaint C schedule property through a Survey Commission. Accordingly, I set aside the judgments and decrees of the Trial Court and First Appellate Court in both the suits and remand the cases back to the Trial Court for fresh consideration for the identification of the Plaint C Schedule property through a Survey Commission. The parties are at liberty to adduce additional evidence. The parties shall appear before the Trial Court on 20.02.2025. 28. The Regular Second Appeals are allowed as above.