Dismissed

Thomas George v. Martin Sebastian

Kerala HC28 Oct 2016RSA/941/2016

Case brief

AI extract

What is this about?

The High Court dismissed the regular second appeal filed by pendente lite purchasers challenging the lower courts' dismissal of a suit for easement right of way. Upholding concurrent findings, the court held the plaintiff failed to prove the general necessity or prescription of the 'B' schedule pathway and was utilizing an alternative southern route.

What did the court decide?

The Regular Second Appeal and Interlocutory applications seeking amendment and impleadment stood dismissed.

Thomas George Vs Martin Sebastian — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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FRIDAY, THE 28TH DAY OF OCTOBER 2016/6TH KARTHIKA, 1938

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RSA.No. 941 of 2016 (D)

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AGAINST THE JUDGMENT DATED 30-11-2015 IN AS 120/2011 of DISTRICT COURT, TRIVANDRUM.

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AGAINST THE JUDGMENT DATED 30-08-2010 IN OS 888/2007 of ADDITIONAL MUNSIFF'S COURT, (RCC), THIRUVANANTHAPURAM.

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APPELLANTS/ 3RD PARTY:

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----------------------

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1. THOMAS GEORGE, AGED 54, S/O LATE GEORGE K. JOSEPH, KARUVELIL PUTHENPURAYIL (T.C 10/948(8)), PEROORKKADA P.O, PEROORKKADA VILLAGE, THIRUVANANTHAPURAM-PIN 686 507.

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2. JOSHY K. GEORGE, AGED 45, S/O GEORGE.K. JOSEPH, KARUVELIL PUTHENPURAYIL (T.C 10/948(8)), PEROORKKADA P.O, PEROORKKADA VILLAGE, THIRUVANANTHAPURAM-PIN 686 507, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER AND 1ST APPELLANT THOMAS GEORGE.

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3. ANNAMMA THOMAS, AGED 54, W/O THOMAS GEORGE, KARUVELIL PUTHENPURAYIL (T.C 10/948(8)), PEROORKKADA P.O, PEROORKKADA VILLAGE, THIRUVANANTHAPURAM-PIN 686 507.

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4. BILGIN K. THOMAS, AGED 31, S/O. THOMAS GEORGE, KARUVELIL PUTHENPURAYIL (T.C 10/948(8)), PEROORKKADA P.O, PEROORKKADA VILLAGE, THIRUVANANTHAPURAM, PIN 686 507.

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BY ADVS.SRI.S.RANJIT (KOTTAYAM) SRI.GOKUL DAS V.V.H.

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....2

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-2-

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RESPONDENTS/APPELLANT, RESPONDENTS 1,3 & ADDITIONAL RESPONDENT NO 4/PLAINTIFF, DEFENDANTS 1 & 3, ADDITIONAL 4TH RESPONDENT WAS IMPLEADED IN APPELLATE STAGE AS PER ORDER IN I.A NO 2558/2011 DATED 30-03-2012 AS THE L.R. OF 2ND RESPONDENT/2ND DEFENDNAT:

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1. MARTIN SEBASTIAN, S/O SEBASTIAN, C. NAGAR, NADATHARA P.O, THRISSUR-680 001.

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2. G. VENKITA RAO, S/O GOPAL RAO SAHIB, FLAT NO 201, RASHMI RAMASWAMI SAUDHA, 1028/1, JAYALEKSHMI ROAD, CHAMARAJAPURAM, MYSORE, KARNATAKA, PIN 570 005.

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3. PARIMALA H. RAO, W/O HANUMATHA RAO, VAMA LODGE, UPSTAIRS, 4TH MAIN ROAD, MALLESWARAM P.O, BANGALORE, KARNATAKA-PIN 560 003.

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4. RAGHAVENDRA RAO, S/O LATE S. SANI BAI, W/O K. RAGHAVENDRA RAO, GOKULAM, 3RD MAIN ROAD, MARDOSHA ROAD, MALLESWARAM P.O, BANGALORE, KARNATAKA, PIN 560 003,

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K. HARILAL, J.

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R.S.A. No.941 of 2016-D

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Dated this the 28^th day of October, 2016 JUDGMENT

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The appellants are the pendente lite purchasers of the plaint schedule properties from the plaintiff in the Original Suit. The suit is one for injunction restraining the defendants from obstructing the 'B' schedule pathway. The plaintiff is the absolute owner in possession and enjoyment of 10 cents of property and the building situated therein by virtue of Exts.A1 and A2 sale deeds. According to him, the properties covered under Exts.A1 and A2 are lying as a compact plot where the building is situated. The plaint 'B' schedule is a pathway having a width of 3 links starts from the bypass road on the southern side and leading towards the east to 'A' schedule property. The defendants are having some properties in between 'A' schedule property as well as the bypass road and the 'B' schedule pathway is lying through the defendants'

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R.S.A. No.941 of 2016 -: 2 :-

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property. The plaintiff as well as his predecessors were residing in the plaint 'A' schedule property and they have been enjoying the 'B' schedule pathway which is lying through the western property of the defendants, for ingress and egress to the western National Highway, since the last more than 30 years. According to him, the said pathway is the only pathway which gives access to the plaint 'A' schedule property from the western bypass road and 'B' schedule pathway is in continuous, uninterrupted, open and peaceful enjoyment of the plaintiff for the last more than 30 years. By long continuous open and uninterrupted usage of the pathway, they have acquired the easement right of way by prescription over the said pathway. But, on 24/4/2007, when the plaintiff reached the plaint 'A' schedule property through the plaint 'B' schedule pathway, the defendants attempted to obstruct the usage and enjoyment of the pathway and questioned his right of way. Feeling aggrieved, apprehending the obstruction

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R.S.A. No.941 of 2016 -: 3 :-

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from the part of the defendants, the plaintiff has preferred the aforesaid suit seeking injunction simpliciter.

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The defendants denied the right of way

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claimed by the plaintiff through their property. According to them, actually, in the year 1970, there was no Highway as described in the plaint. They have denied the plaint averment that the plaintiff has been using the pathway, since the last more than 30 years, as of right openly and uninterruptedly. There is already a pathway on the southern side of the 'A' schedule property and the plaintiff's predecessors used the pathway for their ingress and egress to their property, and now the defendants also have been using the said pathway. It is also specifically contended that the suit has been filed suppressing the existing pathway lying on the southern side of plaint 'A' schedule property viz., 'Vazhavila Edavazhi leading to Petta - Chakkai road' and is lying on the southern side of the 'A' schedule property as access to

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R.S.A. No.941 of 2016 -: 4 :-

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the plaint 'A' schedule property. There is no pathway, as scheduled in the plaint, and the plaintiff is not entitled to get easement right of way by prescription through the property of the defendants.

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On the above rival pleadings, the plaintiff adduced evidence. The plaintiff was examined as P.W.1 and another witness was examined as P.W.2 and Exts.A1 to A4 were marked. The defendants produced and marked Exts.B1 and B2. The Commission Report was marked as Ext.C1. After analysing the aforesaid evidence, on record, the trial court dismissed the suit on a finding that the pathway, which is shown as 'B' schedule, is never in existence and the plaintiff has created a new pathway for the direct access towards the bypass road situated on the western side of the property. Though, the plaintiff has preferred an appeal before the lower appellate court, the lower appellante court also, after reappreciating the evidence, on record, dismissed the Appeal, confirming the findings of the trial court.

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R.S.A. No.941 of 2016 -: 5 :-

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Thus, the concurrent findings; whereby the courts below rejected the right of easement claimed by the plaintiffs, are assailed in this Regular Second Appeal.

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Heard the learned counsel for the appellants/plaintiffs, in detail, and the learned counsel for the appellants advanced arguments highlighting the existence of the pathway as claimed by the plaintiff for the last more than 30 years. The suit is one for simple injunction only. It is pertinent to note that the plaintiff has not sought for declaration of the right of Easement, under which he seeks injunction. But, in the pleadings as well as in the evidence, he has made an attempt to bring home the ingredients constituting an easement right of way by prescription.

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It is the case of the plaintiff that the plaintiff and his predecessors have been using 'B' schedule pathway for their ingress and egress to the residential building in the plaint 'A' schedule property since the last more than 30 years and the said usage was continuous, open and uninterrupted. The

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R.S.A. No.941 of 2016 -: 6 :-

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Commissioner has filed Ext.C1 report stating the lie of 'B' schedule pathway, as on the date of suit. The Commissioner has unambiguously reported that 'B' schedule pathway is a newly constructed pathway only. But, the court below made an earnest attempt to assess the old age of the pathway in the light of Exts.A1 to A3 and the oral evidence of P.Ws.1 and 2. It is true that the existence of an alternative pathway is of consequence at all in a claim for easement right of way by prescription. But, in the instant case, it is the specific case of the defendants that there is a pathway on the southern side of the plaint schedule properties by name ''Vazhavila Edavazhi leading to Petta - Chakkai road'.

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Be that as it may, the plaintiff has produced Exts.A1 to A3 and he has relied upon the description of the way in the schedule of the properties to fortify his claim that the 'B' schedule pathway is the continuation of the way which is described in Exts.A1 to A3. The courts below have meticulously examined

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R.S.A. No.941 of 2016 -: 7 :-

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the nature and lie of the pathway described in the schedule of Exts.A1 to A3 and compared the same with 'B' schedule pathway shown in Ext.C1 report. It is discernible from Exts.A1 to A3 that the property originally belonged to one Paulose and on his death, it devolved upon his children and they effected partition of the property and subsequently transferred the same to the plaintiff, as per Exts.A1 and A2 title deeds. Ext.A3 is the copy of the prior title deed. As per Ext.A3, the property had been partitioned among Gopi and Gomathi, the prior title holders of the plaintiff. In Ext.A3, it is specifically stated that the pathway/access to that property is through the pathway lying on the southern side of the property in east-west direction. It is pertinent to note that there is no indication to mean that the pathway lying on the southern side extends up to the western bypass road. The description shows that the pathway described in Ext.A3 lying on the southern side of the property in east-west direction only. Ext.A1 is executed to the

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R.S.A. No.941 of 2016 -: 8 :-

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plaintiff by the children of Gopi and Ext.A2 by one Viswambharan and Usha who purchased the share of Gomathi. But, it is not described as lying on the southern side of the property as in Ext.A3. What is discernible from the aforesaid description is that the access to the property is through the pathway lying on the southern side of the property and nothing more or nothing less. But, the plaintiff is claiming right over the way lying on the western side of the entire property and it could be seen that the pathway mentioned in the title deeds as well as in the prior title deeds of 'A' schedule property could never be the 'B' schedule pathway as marked in Ext.C1. Thus, the court below is justified in arriving at a finding that the pathway described in Exts.A1 to A3 are not the pathway for which the plaintiff claimed right.

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In the above context, the evidence of P.W.2 assumes much significance. P.W.2 is the prior title holder of the plaintiff. According to her, the way leading to 'A' schedule is on the western side and

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R.S.A. No.941 of 2016 -: 9 :-

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there is no way on southern side of 'A' schedule property. Thus, as rightly noted by the courts below, she deposed against the description in Exts.A1 to A3. But, at the same time, she admitted that there is a road by name 'Vazhavila road' after a pond and there is a small lane which leads to the public road. From the above version, it could be presumed that there is an access to the public road and the way which is described in the title deeds is the way lying on the southern side of 'A' schedule property and the plaintiff gets an access to the southern 'Vazhavila road' from the way described in Exts.A1 to A3.

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As rightly noted by the courts below, being the property lying in open, the plaintiff might have walked once in a while through the property of the defendants, as a short cut to the Highway on the western side. But that will not confer any right on the plaintiff as to claim an easement right of way by prescription. In other words, a casual use does not confer an easement right of way by prescription.

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R.S.A. No.941 of 2016 -: 10 :-

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Thus, the plaintiff has miserably failed to prove the facts constituting an easement right of way by prescription. On the other hand, it has come out in evidence that the plaintiff has been using another way which lies on the southern side of the plaint 'A' schedule property. I do not find any kind of illegality of impropriety in any of the findings; whereby the courts below rejected the claim raised by the plaintiff. No question of law arises for consideration in this Regular Second Appeal.

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This Regular Second Appeal will stand dismissed. Interlocutory application Nos.2608/2016 and 2600/2016 made available before the Bench after hearing, seeking amendment in the plaint and impleadments in the Appeal, will also stand dismissed, as highly belated, and it lacks sufficient cause for the same.

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Sd/-

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(K. HARILAL, JUDGE)

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Nan/

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//true copy//

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P.S. to Judge

Thomas George v. Martin Sebastian

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Thomas George v. Martin Sebastian

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