Dismissed

P.C.Alexander v. K.E.Joseph @ Benny

Kerala HC4 Oct 2017RSA/585/2017

Case brief

AI extract

What is this about?

In regular second appeals regarding suits for perpetual injunctions, the High Court held that the appellant failed to establish an easement by prescription as the user was merely permissive. The court dismissed the appeal, rejecting the admission of additional documents due to lack of due diligence, finding the lower courts correctly applied the law.

What did the court decide?

The second appeals were dismissed; parties to bear respective costs; interlocutory applications closed.

P.C.Alexander Vs K.E.Joseph @ Benny — Property and Title | Kerala HC (2017)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

¶4

WEDNESDAY, THE 4TH DAY OF OCTOBER 2017/12TH ASWINA, 1939

¶5

RSA.No. 585 of 2017 ()

¶6

AGAINST THE JUDGMENT AND DECREE DATED 29-03-2017 IN AS 5/2015 of SUB COURT, THIRUVALLA

¶7

AGAINST THE JUDGMENT AND DECREE DATED 16-01-2015 IN OS 4/2009 of MUNSIFF COURT, THIRUVALLA

¶8

APPELLANT/APPELLANT/PLAINTIFF:

¶9

P.C.ALEXANDER

¶10

AGED 68 YEARS, S/O.LATE CHANDA PILLAI, PUTHENPARAMBIL HOUSE, ANICADU P.O, ANICADU MURI, ANICADU VILLAGE, MALLAPPALLY TALUK.

¶11

BY ADVS.SRI.CHERIAN GEE VARGHESE

¶12

SRI.P.HARIDAS

¶13

SRI.P.C.SHIJIN

¶14

RESPONDENT/RESPONDENT/DEFENDANT:

¶15

K.E.JOSEPH @ BENNY, AGED ABOUT 58, S/O. LATE KUNCHERIA EASOW, KODUVELKULATHU HOUSE, ANICADU P.O, ANICADU MURI, ANICADU VILLAGE, MALLAPPALLY TALUK-689 662.

¶16

BY ADVS. SRI.MATHEW JOHN (K) SRI.DOMSON J.VATTAKUZHY

¶17

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04-10-2017, ALONG WITH RSA. 588/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶18

DSV/-

¶19

[CR]

¶20

B. KEMAL PASHA, J.

¶21

................................................................ R.S.A. Nos. 585 & 588 of 2017

¶22

............................................................... Dated this the 4^th day of October, 2017

¶23

J U D G M E N T

¶24

O.S.Nos.4/2009 and 9/2009 of the Munsiff's Court, Thiruvalla were jointly tried. O.S.No.4/2009 was dismissed with costs whereas; O.S.No.9/2009 was decreed with costs. The plaintiff in O.S.No.4/2009, who is the defendant in O.S.No.9/2009, preferred A.S.Nos.5 of 2015 and 6 of 2015

¶25

before the Subordinate Judge's Court, Thiruvalla challenging the judgments and decrees of the Munsiff's Court. Both these appeals were dismissed with costs by the lower appellate court, and hence these second appeals.

¶26

Both the suits are for perpetual injunction. O.S.No.4/2009 was filed by the appellant herein for a decree of perpetual injunction restraining the respondent herein from obstructing his user of plaint schedule item No.3

¶27

R.S.A. Nos. 585 & 588 of 2017 -: 2 :-

¶28

pathway. The appellant claims that the predecessor-ininterest of the plaint schedule item No.1 property, and thereafter the appellant had been making use of plaint schedule item No.3 pathway, continuously and openly as of right, for ingress and egress to the plaint schedule item No.1 property for more than 70 years, prior to the filing of the suit. Precisely, what has been pleaded is the right of easement by prescription over plaint schedule item No.3 pathway. For having access to the plaint schedule item No.3 pathway three stone pillars are laid over the narrow watercourse passing through the western side of the plaint schedule item No.1 and the said stone pillars are being used as a small culvert. The said pathway continues through the northern extremity of plaint schedule item No.2 property belongs to the respondent, and joins the road at the western side of plaint schedule item No.2.

¶29

The respondent contended that there is such a pathway in existence, whereas its width is only two feet. The total width of the three stone pillars laid over the

¶30

R.S.A. Nos. 585 & 588 of 2017 -: 3 :-

¶31

watercourse is only 22 inches. According to the respondent, the appellant had constructed his residential building in plaint schedule item No.1 property just 15 years back to the date of the filing of the suit. As a shortcut for taking building materials into the plaint schedule item No.1 property, the appellant sought permission from the father of the respondent to pass through the northern extremity of plaint schedule item No.2. Consequently, the father of the respondent permitted the appellant to cause the taking of building materials through the northern extremity of the said property, for which the appellant laid the said three stone pillars over the watercourse separating these two properties. According to the respondent, the user of the appellant over the said pathway for some time was merely permissive and it has never ripened into a right of easement by prescription.

¶32

The respondent herein filed O.S.No.9/2009 against the appellant herein as a suit for perpetual injunction for restraining the appellant and his men from trespassing into any portions of his property, from cutting open a

¶33

R.S.A. Nos. 585 & 588 of 2017

¶34

-: 4 :-

¶35

pathway through his property, from changing the lie and nature of the said property, from committing waste on the property etc. A written statement was filed by the appellant taking up the very same contentions as in the plaint in O.S.No.4/2009. As aforesaid, O.S.No.4/2009 stands dismissed and O.S.No.9/2009 stands decreed in terms of the plaint.

¶36

These Second Appeals are admitted on the following substantial questions of law:

¶37

“(1) Is the lower appellate court justified in dismissing the appeal, after dismissing the application filed by the appellant under Order 41 Rule 27 of the Code of Civil Procedure seeking admission of certain documents, which go to show that the appellant was residing there even 25 years back?

¶38

(2) Is the lower appellate court justified in not remitting the case to the trial court for enabling the appellant to produce those documents and to get it marked, when those documents show easement by prescription?

¶39

R.S.A. Nos. 585 & 588 of 2017

¶40

-: 5 :-

¶41

3) Are the courts below justified in denying reliefs to the appellant, when an inchoate right has been established?”

¶42

Heard the learned counsel for the appellant Sri.P.

¶43

Haridas and the learned counsel for the respondent Sri. K. Mathew John.

¶44

The learned counsel for the appellant has argued

¶45

that both the courts below ought not to have non-suited the appellant merely by clinching upon the stray sentence made in the cross-examination of PW1. It has been argued that if at all there was such an admission from the part of PW1 that there was permission from the father of the respondent to carry building materials into the property of the appellant through the northern extremity of plaint schedule item No.2 property, such permission, if any, would cease after the construction of the building and thereafter, the user of the pathway by the appellant will become adverse to the interest of the respondent, and such user will be as of right and it will not be permissive.

¶46

It has also been argued that the appellant was

¶47

R.S.A. Nos. 585 & 588 of 2017 -: 6 :-

¶48

residing in the building constructed by him in the plaint schedule item No.1 property 25 years back to the filing of the suit, and in order to prove the same, two documents were attempted to be pressed into service by the appellant before the lower appellate court under Order XLI Rule 27 of the Code of Civil Procedure. It is argued that the lower appellate court did not consider the said IA and has not passed any separate order on the IA. According to the learned counsel for the appellant, the lower appellate court ought to have admitted those documents in evidence or ought to have remitted the suits to the trial court for proving the said documents.

¶49

Per contra, the learned counsel for the

¶50

respondent has argued that the best evidence in the suit is nothing but the clear admission of PW1 that the user of the pathway was merely permissive and that the father of the respondent had permitted the appellant to make use of the pathway. According to the learned counsel for the respondent, when the user is permissive it will not invite the

¶51

R.S.A. Nos. 585 & 588 of 2017

¶52

-: 7 :-

¶53

ingredients of Section 15 of the Indian Easements Act and it will not create any right of easement by prescription. It has also been argued that the appellant has failed to prove the user of the pathway 'continuously, openly, as of right' for more than 20 years and therefore, any such right has not ripen into an easement by prescription.

¶54

Regarding the additional documents attempted to be pressed into service by the appellant before the lower appellate court, the learned counsel for the respondent has argued that the appellant had no case that despite due diligence he could not produce the said documents before the trial court and therefore, the lower appellate court had rightly declined to admit those documents.

¶55

The learned counsel for the appellant as well as the learned counsel for the respondent have taken this Court through the deposition of PW1. In his deposition in cross-examination, PW1 has categorically admitted at first that the said plaint schedule item No.3 pathway was provided to him by the father of the respondent and that it

¶56

R.S.A. Nos. 585 & 588 of 2017

¶57

-: 8 :-

¶58

was through an oral grant. Thereafter, PW1 went on to admit that permission was granted by the father of the respondent to the appellant to make use of the said pathway. It has to be noted that in the written statement the defendant has admitted the existence of such a pathway, even though there is a dispute with regard to its width. At the same time, by admitting the existence of the pathway, the defendant has clearly pleaded that the permission for the user of the same for some period for the construction of the building of the appellant in plaint schedule item No.1 property, was clearly given by the father of the respondent on the request of the appellant. The aforesaid admissions of PW1 in his cross-examination clearly relates to the contention resorted to by the defendant in the written statement. Through the aforesaid admissions, the appellant has categorically admitted the contention of permissive user taken up by the respondent.

¶59

As rightly pointed out by the learned counsel for the respondent, admission is the best evidence. In Avtar

¶60

R.S.A. Nos. 585 & 588 of 2017 -: 9 :-

¶61

Singh and others v. Gurdial Singh and others [(2006) 12

¶62

SCC 552] it was held that admission, it is well known, forms best evidence. It was further held that 'it may be that admission does not create any title, but the nature of the land can form the subject-matter of admission'.

¶63

Regarding the right of way as contained under Section 15 of the Indian Easements Act, such a right of way should be peaceably and openly enjoyed by the claimant as an easement and as of right, without interruption for 20 years. When the user of the plaint schedule item No.3 is merely permissive, it cannot be said that its user is 'as of right'. Permissive user, for whatever period, will never create any right of acquisition by prescription within the meaning of Section 15 of the Indian Easements Act. Therefore, the clear admissions of PW1 clearly militates against the case set up by the appellant in the plaint.

¶64

Two documents, viz. a certificate obtained from the Panchayat as well as the ration card of the appellant were attempted to be pressed into service by the appellant

¶65

R.S.A. Nos. 585 & 588 of 2017 -: 10 :-

¶66

before the lower appellate court under Order XLI Rule 27 of the CPC. In all circumstances, such appellants cannot take the aid of Order XLI Rule 27 CPC. In order to avail such an opportunity, the appellant has to show that despite due diligence he could not produce the said document. When the appellant wanted to produce the ration card and the certificate obtained from the Panchayat, it could not have been believed that despite due diligence such documents were not in his knowledge, or despite due diligence he could not produce those documents.

¶67

15. In State of Karnataka and another v. K.C.

¶68

Subramanya and others [(2014) 13 SCC 468], it was held:

¶69

“On perusal of Order 41 Rule 27(1)(aa) CPC, it is unambiguously clear that the party can seek liberty to produce additional evidence at the appellate stage, but the same can be permitted only if the evidence sought to be produced could not be produced at the stage of trial in spite of exercise of due diligence and that the evidence could not be produced as it was not within his

¶70

R.S.A. Nos. 585 & 588 of 2017

¶71

-: 11 :-

¶72

knowledge and hence was fit to be produced by the appellant before the appellate forum. It is thus clear that there are conditions precedent before allowing a party to adduce additional evidence at the stage of appeal, which specifically incorporates conditions to the effect that the party in spite of due diligence could not produce the evidence and the same cannot be allowed to be done at his leisure or sweet will.”

¶73

If at all those documents were admitted in evidence, that would not have in anyway improved the case of the appellant. Whatever be the time period of permissive user, it would not ripen into a right of acquisition by prescription. From all the above, it has come out that the aforesaid substantial questions of law do not emerge from these second appeals. Both the courts below have appreciated the evidence in its correct perspective and have arrived at the correct conclusion. The impugned judgments and decrees are not liable to be interfered with. Both these second appeals are devoid of merits and are only to be

¶74

R.S.A. Nos. 585 & 588 of 2017

¶75

-: 12 :-

¶76

dismissed, and I do so.

¶77

In the result, these Second Appeals are dismissed. In

¶78

the nature of these appeals, the parties shall bear their respective costs. All the interlocutory applications in these appeals are closed.

¶79

Sd/- B. KEMAL PASHA, JUDGE.