In a second appeal concerning property and easement rights, the Kerala High Court dismissed the appeal. The court held that despite confusion in lower court judgments, the plaintiffs successfully established easement rights over the disputed schedule properties and the appeal lacked merit.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE P.BHAVADASAN
FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932
SA.No. 1028 of 1996(E) --------------------------------AS.55/1995 of I ADDL. SUB COURT, TRIVANDRUM OS.2489/1990 of PRL. MUNSIFF COURT, TRIVANDRUM
APPELLANTS/APPELLANTS/DEFENDANTS 2 AND 3:
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1. GOMATHY, W/O.LATE S. KARUNAKARAN, RESIDING AT MADATHUVILA VEEDU, MADATHUVILAKAM VILLAGE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.
2. K. KALESAN, S/O.LATE S. KARUNAKARAN, RESIDING AT DO. DO.
BY ADV. SRI.B.KRISHNA MANI, SRI.V.PREMCHAND.
RESPONDENTS/RESPONDENTS/PLAINTIFFS:
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1. T.K. SYAMALA, RESIDING AT MELEPLAPATTI VEEDU, T.C.40/692, KURIYATHI, MANACAUD, THIRUVANANTHAPURAM.
2. M.K. GOPAKUMAR, RESIDING AT MADATHIVILA VEEDU, MADATHUVILAKOM VILLAGE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.
3. M.K. UDAYAKUMAR, RESIDING AT DO. DO.
4. T.K. REMA, DO. DO.
BY ADV. SRI.G.S.REGHUNATH, SRI.MOHAN JACOB GEORGE, SRI.M.RAMASWAMY.
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/06/2010,THE COURT ON 09/07/2010 DELIVERED THE FOLLOWING:
rs.
P. BHAVADASAN, J.
JUDGMENT
Aggrieved by the concurrent findings against them, defendants 2 and 3 before the court below have come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court.
S.A. 1028/1996. 2
pathway to gain access to their properties. It so happened that the first defendant, who is residing on the western side of the property owned by the plaintiffs, purchased C schedule pathway from Subramanian, the brother of the predecessor in interest of the plaintiffs. Later on, the predecessor in interest of the plaintiffs assigned plaint B schedule property to the first defendant reserving the right to use B schedule as a pathway by the vendor also of the first defendant. Thus the plaintiffs claim that they are entitled to use plaint B schedule and C schedule pathways to gain access to their properties. While they set up a prescriptive right of easement to use C schedule pathway, as regards plaint B schedule pathway, they rely on a grant. The allegation is that when the plaintiffs tried to lay pipe line through plaint B and C schedule properties, the first defendant obstructed them. It is stated that he has no right to do so. Apprehending further trouble from the defendants, the suit was laid.
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from the side of the plaintiffs. The defendants had D.W.1 examined. Ext.C1 is the commission report.
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“I. When it is clear that Ext.A1 partition deed does not specify any pathway to plaint A schedule was the courts below justified in declaring a prescriptive easement right in respect of C schedule?
II. When it has been clearly found by the Appellate Court that the plaintiffs cannot claim any pre-existing easementary right through plaint B and C schedule, was the appellate court justified in decreeing the suit in respect of C Schedule.?
III. Is it not clear that recitals in Ext.A2 will not confer any easement right to the plaintiffs since the same is only a licence?
IV. When it is clear that the plaintiffs have failed to prove a clear cut pathway through the plaint B and C schedule property, were the courts below justified in decreeing the suit?
V) When the claim of the plaintiffs is that they are entitled to get an easement of way as necessity and when the same has been rejected by the appellate court, was the appellate court justified in allowing a prescriptive easement right in respect of C schedule?
S.A. 1028/1996.
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VI) When the pleadings in the plaint are not specific, is the plaintiff entitled to claim any right?”
counsel for the appellants is that the plaint contained inconsistent pleadings. The plaint averments show that a prescriptive right of easement as well as easement by necessity are claimed. So also easement by way of grant. According to learned counsel, as the pleadings are not definite and precise, it has caused a lot of prejudice to the defendants. The defendants were unaware of the case they had to meet and the courts below have not adverted to this aspect at all. Learned counsel appearing for the appellants placed considerable reliance on the decision reported in Ibrahimkutty v. Abdul Rajumankunju (1992(2) K.L.T. 775). It was also contended that on the facts of that case easement by necessity does not arise. The courts below have not appreciated the evidence in the proper
S.A. 1028/1996. 7
perspective and they have not looked into the pleadings and the judgments are therefore unsustainable.
S.A. 1028/1996. 8
pleadings and the pleadings are very clear and precise. The plaintiffs were resting their claim on easement by prescription as far as plaint C schedule is concerned and easement by grant as far as plaint B schedule is concerned. Learned counsel appearing for the respondents contended that there may not have been a proper appreciation of the facts in the case and the evidence by the courts below. But nevertheless ultimately the conclusion drawn is just and proper. It is therefore contended that the appeal be dismissed.
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apart to them along the eastern side of plaint A schedule properties. That opens into the road on the southern side.
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by necessity, easement by prescription or easement by grant.
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by Subramanian. B schedule shown in the commission report is wrong. Going by the above facts, it can be seen that the principle laid down in the decision cited by the learned counsel for the appellants does not apply to the facts of the case.
the plaint schedule and the case put forward by the respondents, will show that what is claimed is easement by
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prescription as regards plaint C schedule property, and easement of grant as far as plaint B schedule is concerned. It is not as if there are inconsistent pleadings in the plaint. The courts below should have taken some pains to understand the case in the proper perspective. A reading of the judgment of the trial court will show that the trial court was not sure as to what is the nature of the claim put forward by the plaintiffs. Be that as it may, the fact remains that the plaintiffs have succeeded in establishing their rights over plaint B and C schedule properties.
The result is that, this appeal is without merits and
it is only to be dismissed. I do so. There will be no order as to costs.
P. BHAVADASAN, JUDGE
sb.
3 issues framed by the court
Whether inconsistent pleadings regarding multiple types of easement rights render the suit unsustainable.
Whether the appellants were justified in declaring a prescriptive easement right in respect of C schedule property given the partition deed did not specify any pathway.
Whether the appellate court was justified in decreeing the suit in respect of C Schedule when pre-existing easementary rights could not be claimed.
Colour shows how this judgement treated each authority
Ibrahimkutty v. Abdul RajumankunjuDistinguished¶14
Ibrahimkutty v. Abdul Rajumankunju (1992(2) K.L.T. 775)
GOMATHY
K. KALESAN
T.K. SYAMALA
M.K. GOPAKUMAR
M.K. UDAYAKUMAR
T.K. REMA
P. BHAVADASAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
P. BHAVADASAN
Parties & counsel
