Dismissed

Gopalan Nair v. Rajamma Suseelamma

Kerala HC1 Nov 2017RSA/782/2015

Case brief

AI extract

What is this about?

This is a second appeal regarding a suit for easement by prescription over a pathway. The High Court held that the plaintiff failed to prove open, continuous, and as-of-right use for the statutory period and that the specific pathway in the plaint schedule was not properly identified.

What did the court decide?

Regular Second Appeals dismissed. No costs. Pending interlocutory applications closed.

Gopalan Nair Vs Rajamma Suseelamma — 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 1ST DAY OF NOVEMBER 2017/10TH KARTHIKA, 1939

¶5

RSA.No. 782 of 2015 ()

¶6

AGAINST THE JUDGMENT AND DECREE DATED 31-12-2012 IN AS 113/2010 of III ADDITIONAL DISTRICT COURT, KOLLAM

¶7

AGAINST THE JUDGMENT AND DECREE DATED 04.02.2010 IN OS 114/2002 of ADDITIONAL SUB COURT, KOLLAM

¶8

APPELLANTS/APPELLANTS 1 TO 3 AND 5/DEFENDANTS 1,2,5 AND 7:

¶9

1. GOPALAN NAIR RADHAKRISHNAN NAIR, AGED 65, RESIDING AT KOCHAYYATHU VEEDU, PADANAYARKULANGARA, KARUNAGAPPALLY-690 518.

¶10

2. THANKAMONY AMMA,

¶11

W/O. RADHAKRISHNAN NAIR, AGED 62, RESIDING AT KOCHAYYATHU VEEDU, PADANAYARKULANGARA, KARUNAGAPPALLY-690 518.

¶12

3. SOMAN NAIR, AGED 55, RESIDING AT KOCHAYYATHU VEEDU, PADANAYARKULANGARA, KARUNAGAPPALLY-690 518.

¶13

4. MONY, AGED 50, KOCHAYYATHU VEEDU, RESIDING AT PADANAYARKULANGARA, KARUNAGAPPALLY-690 518.

¶14

BY ADV. SRI.V.PHILIP MATHEWS

¶15

RESPONDENTS/RESPONDENTS 1 TO 15 & 4TH APPELLANT/ORIGINAL PLAINTIFFS AND DEFENDANTS 3,4 AND 6:

¶16

1. RAJAMMA SUSEELAMMA, AGED 65, RESIDING AT THIRUMANASSERI MADAM, PALLAPPUZHA MURI, HARIPPAD VILLAGE-690 514.

¶17

2. BINDU, D/O. SUSEELAMMA, AGED 45 YEARS, RESIDING AT SREE VEEDU, KAIKULANGARA NORTH, ANCHUKALLUMOODU, KOLLAM-691 012.

¶18

RSA.No. 782 of 2015 ()

¶19

3. RAMACHANDRAN NAIR, AGED 70, RESIDING AT JAYASANKER VEEDU, MYNAGAPPALLY SOUTH, KUNNATHOOR-690 519.

¶20

4. GOPINATHAN NAIR, AGED 81, S/O. KOCHU KUNJU, RESIDING AT CHITTAKATTU VEEDU, MYNAGAPPALLY SOUTH, PIN-690 519.

¶21

5. LEKSHMI KUTTY AMMA, AGED 73, LEKSHMI BHAVAN, MYNAGAPPALLY SOUTH, PIN-690 519.

¶22

6. KOMALAVALLY AMMA, D/O. RAJAMMA, AGED 60, KOCHU THAYYIL VEEDU, PADANAYARKULANGARA, KARUNAGAPPALLY-690 518.

¶23

7. AMBIKA KUMARI, D/O. RAJAMMA, AGED 52, JAYASANKER VEEDU, MYNAGAPPALLY SOUTH, PIN-690 519.

¶24

8. SUDHAMONY, D/O. RAJAMMA, AGED 45, CHITTAKATTU VEEDU, MYNAGAPPALLY-690 519.

¶25

9. BEENA, AGED 40,

¶26

CHITTAKATTU VEEDU, MYNAGAPPALLY-690 519.

¶27

10. A.BIJU, AGED 35, CHITTAKATTU VEEDU, MYNAGAPPALLY-690 519.

¶28

11. RAVEENDRAN NAIR, S/O. GOPALAN NAIR, AGED 55, KOCHAYYATHU VEEDU, PADANAYARKULANGARA-690 518.

¶29

12. RADHA, AGED 50, KOCHAYYATHU VEEDU, PADANAYARKULANGARA-690 518.

¶30

13. SINDHU, AGED 43, D/O. SUSEELAMMA, THIRUMANASSERI, PALLAPPUZHA MURI, HARIPPAD VILLAGE, PIN-690 514.

¶31

14. RAJAMMA, D/O. KUNJUKRISHNA PILLAI, AGED 55, CHITTAKATTU VEEDU, MYNAGAPPALLY-690518.

¶32

15. THANKAMONY AMMA, D/O. RAJAMMA, AGED 45, RAKHI BHAVAN, MYNAGAPPALLY-690 518.

¶33

RSA.No. 782 of 2015 ()

¶34

16. ANIL KUMAR, AGED 40, RESIDING AT KOCHAYYATHU VEEDU, PADANAYARKULANGARA, KARUNAGAPPALLY-690 518.

¶35

R3,R4,R6,R7,R8,R9 & R10 BY ADV. SRI.J.OM PRAKASH

¶36

THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01-11-2017, ALONG WITH RSA. 828/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶37

DSV/-

¶38

B. KEMAL PASHA, J.

¶39

................................................................ R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015

¶40

............................................................... Dated this the 1^st day of November, 2017

¶41

J U D G M E N T

¶42

Challenging the concurrent findings entered by the Additional Subordinate Judge's Court, Kollam in the common judgment in O.S.No.114/2002 and O.S.No.60/2007 followed by those of the Additional District Court-III, Kollam in A.S.No.112/2010 and A.S.No.113/2010, the plaintiff in O.S.No.60/2007 and the defendants in O.S.No.114/2002 have come up in second appeals.

¶43

O.S.No.60/2007 was filed by the appellant for a

¶44

decree declaring her right of easement by way of prescription over plaint C schedule pathway passing through the property of the defendants and also for perpetual

¶45

R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015

¶46

-: 2 :-

¶47

injunction from causing obstructions to the user of the pathway. O.S.No.114/2002 was filed by the defendants in O.S.No.60/2007 for a decree of perpetual injunction against trespass into their property and also from cutting open any new pathway through the said property. O.S.No.60/2007 was treated as the main case, in which evidence was recorded. The property of the appellant, who is the plaintiff in O.S.No.60/2007, was scheduled in the plaint as A schedule and the property of the defendants is scheduled as plaint B schedule. The pathway claimed by the plaintiff in O.S.No.60/2007 is scheduled as plaint C schedule item. The parties are hereinafter referred to as in their status shown in O.S.No.60/2007. The properties of the parties are also described as scheduled in O.S.No.60/2007.

¶48

According to the plaintiff, she purchased plaint A schedule property in the year 1971 and she put up a building in plaint A schedule property in such a manner that building is facing south. According to her, the building was

¶49

R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015

¶50

-: 3 :-

¶51

put up in such a way as it is facing towards south, solely because of the reason that the plaint C schedule pathway starts from the southern boundary of her property and it reaches the main road from the plaint B schedule property. It has been pleaded that the plaintiff and her neighbours have been making use of plaint C schedule pathway for access to the southern main road openly and continuously as of right for more than 20 years and therefore, her right over the plaint C schedule pathway had matured into a right of easement by prescription.

¶52

According to the plaintiff, there is no other motorable access to her property other than plaint C schedule pathway. When her right was attempted to be interfered with, the suit was necessitated. Initially, the suit was filed in the year 2002 as O.S.No.183/2002 before the Munsiff's Court, Karunagappaly. On account of technical defects in the suit she had withdrawn from the suit with liberty to file a fresh suit and thereafter filed the present suit

¶53

R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015

¶54

-: 4 :-

¶55

as O.S.No.36/2006 before the Munsiff's Court,

¶56

Karunagappaly. Subsequently, the said suit was transferred from the Munsiff's Court, Karunagappally to the Subordinate Judge's Court, Kollam as per orders of the District Court, Kollam.

¶57

The defendants contended that they purchased the property through Exts.B1 to B5 sale deeds from the Cooperative Land Mortgage Bank, Karunagappally. Almost all portions of the B schedule property was reclaimed by the earlier landlords and some portions remained as wet land, which was also reclaimed by the first defendant. According to the defendants, there is a pathway starting from the northern boundary of plaint A schedule property having a width of three feet which leads to the northern road and the said pathway is the only access of the plaintiff to plaint A schedule property from the road. It is contended that a gate was affixed at the southern compound wall of plaint B schedule property and materials were taken through that

¶58

R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015

¶59

-: 5 :-

¶60

gate to the middle of the property for the construction of the remaining portions of the compound wall to be constructed. Laterite stones and sand were taken to the middle of the property by lorry from the southern road. Apart from that it was not a pathway for enabling the plaintiff to have access from the road to her plaint A schedule property. When there was an attempt from the part of the plaintiff to cut open a new pathway from her property to the gate on the southern compound wall of the plaint B schedule property, O.S.No.114/2002 was necessitated. According to the defendants, the plaintiff is not entitled to the right by way of easement by prescription or any other right over any of the portions of the plaint B schedule property.

¶61

Both the courts below have non-suited the plaintiff and decreed the suit of the defendants. Both the courts below have found that the plaintiff is not entitled to the right of easement by prescription over the plaint C schedule pathway. Apart from that plaint C schedule

¶62

R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015

¶63

-: 6 :-

¶64

pathway has not been identified.

¶65

Heard the learned counsel for the appellants on

¶66

the question of admission. The learned counsel for the respondents was also heard.

¶67

Learned counsel for the appellants has argued that the existence of the building of the plaintiff in plaint A schedule property, which is facing towards south, is a strong indication of the access of the plaintiff towards south, through the plaint C schedule property. Even though a pathway is there which starts from the northern boundary of plaint A schedule property which leads to the northern road, the building was not put up by facing towards north and therefore, it has to be considered that the plaintiff has not been making use of the said pathway whereas, the plaintiff has been making use of plaint C schedule pathway for having access to the southern main road. It has also been argued that plaint C schedule pathway is in existence in the property and the plaintiff as well as her neighbours have

¶68

R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015

¶69

-: 7 :-

¶70

been making use of the same as of right. It has been further argued that the defendants cannot claim an equitable relief of injunction in respect of plaint B schedule property when gross illegality has been committed by the first defendant in reclaiming the paddy field illegally, in violation of the provisions of the Kerala Land Utilisation Order, which was then in force.

¶71

It has been further argued that in Ext.A4 plan, the western boundary of plaint B schedule property has been corrected through manipulation and it was with a view to snatching away portions of the properties of the KSEB. It has been further argued that Exts.C1 to C3 clearly reveal the continued user of plaint C schedule item by the plaintiff for motorable access to plaint A schedule property. It has been further argued that the only evidence to show the existence of a gate at the southern compound wall of the plaint B schedule property is the evidence of DW3 and Ext.B21. According to the learned counsel for the

¶72

R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015

¶73

-: 8 :-

¶74

appellants, Ext.B21 is a cooked up document and the contents of Ext.B21 which show the existence of the gate and fencing have not been made mention of in Exts.B1 to B5 and therefore, Ext.B21 cannot be relied on. It has also been argued that, but for the evidence of DW3, the appellate court ought to have granted a decree in favour of the plaintiff. According to the learned counsel for the appellants, the evidence of DW3 is not reliable and therefore, the lower appellate court ought to have granted a decree in favour of the plaintiff.

¶75

Per contra , the learned counsel for the respondents has argued that the evidence clearly show that any right of prescriptive easement has not been matured in favour of the defendant and that at the most the defendant might have been using the portions of the plaint C schedule property illegally and unauthorizedly for around 7 years and nothing more. It has also been argued that when the plaintiff has failed to prove her right by way of easement by

¶76

R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015

¶77

-: 9 :-

¶78

prescription over plaint C schedule portion coming within plaint B schedule item, that itself will pave the way for granting a decree of perpetual injunction in favour of the defendants. It has also been argued that the plaintiff is not entitled to a decree of declaration of easement, when plaint C schedule item has not been identified.

¶79

Both the learned counsel have taken this Court through the entire evidence and records in the suits. It is a fact that earlier an exparte Commission was taken out in O.S.No.114/2002 at the instance of the defendants who were the plaintiffs in the suit. The Advocate Commissioner visited the properties and prepared Ext.C4 mahazar report on 30.03.2002. The plaintiff, who had filed O.S.No.183/2002, had also taken out a Commission. In that suit the learned Advocate Commissioner visited the properties on 6.4.2002 and prepared Ext.A5 mahazar and report. Therefore, it is evident that the Commissioner who prepared Ext.A5 had visited the properties on the 7^th day of

¶80

R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015

¶81

-: 10 :-

¶82

the visit of the Commissioner who prepared Ext.C4. Exts.C1

¶83

to C3 were prepared by the Advocate Commissioner in O.S.No.60/2007 on 02.03..2009. Both the learned counsel appearing for the parties have taken this Court through the aforesaid three mahazars in detail.

¶84

Even though Ext.C4 was prepared by the Commissioner who was appointed exparte , the said Advocate Commissioner was examined as DW4 through whom the said Commissioner's report was marked. The contents of paragraph 4 of Ext.C4 mahazar clearly show that there was a very old compound wall at the southern boundary of plaint B schedule property and a strong gate having a width of 10 feet was seen installed at the southern compound wall towards west. The compound wall had a height of 5 feet. There was an old compound wall at the western side of the plaint B schedule property and the said compound wall was having a height of six feet. In paragraph 5, it was stated that towards the northern portion of the

¶85

R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015

¶86

-: 11 :-

¶87

plaint B schedule property at three places around 800 laterite stones were kept. Towards the north eastern portion of the plaint B schedule property, one load of sand was also unloaded. The first defendant wanted to construct a compound wall at the northern boundary of plaint B schedule property, for which the said quantity of laterite stones and the sand were unloaded in the property. In paragraph 7 of Ext.C4 it was stated that tyre marks of the lorry were there from the southern gate, which leads towards north and reaches around the middle of the plaint B schedule property. Evidently, it seems that the said tyre marks had occurred and the same were there only up to the middle portion of plaint B schedule property, when the aforesaid laterite stones and the sand were unloaded in the property.

¶88

Ext.C4 does not show that the said tyre marks

¶89

which ended up to the middle portion of the plaint B schedule property had extended towards further north. Over

¶90

R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015

¶91

-: 12 :-

¶92

and above it, it has not been mentioned in Ext.C4 that any beaten track was seen from the place where the tyre marks ended.

¶93

According to the learned counsel for the appellants, DW4 was asked to note down the place upto which the tyre marks of the lorry were there and therefore, the Commissioner had not noted down the continuation of the pathway as a beaten track. On perusing the deposition of DW4 in cross-examination, it seems that the fact as to whether there was continuation of the said pathway from the place at which the tyre marks ended, was not put to DW4.

¶94

Now the contents of Ext.A5 prepared almost seven days after the preparation of Ext.C4 have to be considered. The Advocate Commissioner who prepared Ext.A5 was examined as PW3. As per Ext.A5 the gate fixed on southern compound wall of plaint B schedule property was seen. The said gate had a width of three metres. PW3 has noted that tyre marks were there from the said gate and

¶95

R.S.A. No. 782 of 2015 &

¶96

R.S.A. No. 828 of 2015

¶97

-: 13 :-

¶98

it extended up to almost the middle portion of plaint B schedule item. From that spot onwards a beaten track having a width of one foot was seen extending up to the south eastern corner of plaint A schedule property.

¶99

It is pertinent to note that DW4 had not noted down any such beaten track. In Ext.C4 as well as Ext.A5, the 3 feet width pathway, which starts from the northern boundary of plaint A schedule property and ends at the northern road, was noted. As noted above, the Commissioner, who prepared Exts.C1 to C3, had visited the property on 02.03.2009 only i.e., almost seven years after Exts.C4 and A5. By then, the gate installed at the southern compound wall of plaint B schedule property was not there. It was removed by somebody. Diagonally, portions of plaint B schedule property were made use of for taking vehicles through the portions of plaint B schedule property. Even at that time, a well formed pathway or road as plaint C schedule item was not seen passing through plaint B

¶100

R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015

¶101

-: 14 :-

¶102

schedule item. Even the said portions, through which vehicles were seen taken, were almost filled with bushes and plants.

¶103

According to the learned counsel for the appellants, the 1^st defendant, who purchased plaint B schedule property, was residing at Kayamkulam, which is far away from the plaint B schedule property and therefore, in his absence, the plaintiff and her neighbours have been making use of portions of the said property as pathway and therefore, the said continued user has matured into a right of easement by prescription. Exts.C4 and A5 reveal the existence of a strong gate at the southern compound wall of plaint B schedule property. The said gate was there even on 06.04.2002. At the same time, by 02.03.2009, the said gate was removed and the compound wall at the southern side was also destroyed. The aforesaid argument forwarded by the learned counsel for the appellants clearly militates against the case of the appellants for a right of prescriptive

¶104

R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015 -: 15 :-

¶105

easement. The user to invite a right of prescriptive easement should be open, continuous and as of right. If such an exercise was made by misusing the absence of the 1^st defendant, it can never be said that the said user was as of right. Even if it is assumed that they had made use of portions of plaint B schedule property as a pathway, at the most, it could only be for the period from 06.04.2002 to 02.03.2009. The suit was filed in the year 2002. The entire exercise in transforming portions of the plaint B schedule item as a pathway, that too, diagonally through the plaint B schedule item was evidently made after the filing of the suits and not prior to it. Through the said exercise, the plaintiff cannot claim a right of prescriptive easement. Had there been any pathway in existence as claimed by the plaintiff as plaint C schedule item, definitely, it would have found a place in Ext.C4. There is no evidence to note down that there was open, continuous user for 20 years or more by the plaintiff over plaint C schedule item, as of right, prior to the

¶106

R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015 -: 16 :-

¶107

suit.

¶108

The plaintiff is also heavily relying on the contents of Ext.A5. The said Commission was taken out by the plaintiff herself. The said Commissioner visited the property on 06.04.2002 and prepared Ext.A5. The contents of Ext.A5 do not reveal any pathway as the one noted in Exts.C1 to C3. Therefore, evidently, the said pathway as noted in Exts.C1 to C3 was created, if at all it is a pathway, during the pendency of the suits and not prior to that. Both the courts below have disbelieved the claim of the plaintiff for user for more than 20 years over the plaint C schedule item.

¶109

Regarding the argument that the defendants are not entitled to an equitable relief of perpetual injunction, when the 1^st defendant has committed gross illegality by reclaiming the wet land by violating the provisions of the Kerala Land Utilisation Order, 1967, this Court is satisfied that it will not improve the case of the plaintiff in any manner. When prescriptive right of easement is sought for, it goes

¶110

R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015

¶111

-: 17 :-

¶112

without saying the plaintiff has admitted the title of the defendants over plaint B schedule property. After admitting the said title, the plaintiff cannot contend that the defendant is not entitled to protect plaint B schedule property. The plaintiff has claimed prescriptive right of easement through the alleged plaint C schedule item, which is passing through plaint B schedule property. When there is nothing to show that any such user as claimed by the plaintiff has matured into a prescriptive right of easement, it goes without saying that the defendants are entitled to protect plaint B schedule property.

¶113

Regarding the argument that there is excess extent of 0.12 Ares is there in the plaint B schedule item, this Court is of the view that the same also will not improve the case of the plaintiff. If any excess land is there, in the absence of any claim from the neighbouring owners, the defendants can continue to possess, the said excess extent also, if any. The plaintiff has no case that plaint B schedule

¶114

R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015

¶115

-: 18 :-

¶116

item is not identifiable. In such case, when the right claimed by the plaintiff has been discarded, automatically, it paves way to the granting of a decree in favour of the defendants. Even though the right claimed by the plaintiff is a statutory right and the relief sought for by the defendants is an equitable relief, when the statutory relief has been denied, there is nothing wrong in granting the equitable relief claimed by the defendant.

¶117

Learned counsel for the appellants has invited the attention of this Court to the decision in Suhara and another v. Robert and others [2012 (1) KLJ 351] , wherein it was held that when it is shown that the respondents and their predecessors-in-interest were using the disputed pathway without permission of the appellants for more than the statutory period, it is possible to draw an inference that the user was “as of right”. The decision in Suhara (supra) has no application to the facts of the present case.

¶118

Learned counsel for the respondents has relied

¶119

R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015

¶120

-: 19 :-

¶121

on the decision of this Court in Raveendran v. Lohithakshan [2017 (2) KLT 865] , wherein it was held in paragraph 15 as follows:-

¶122

“In order to grant the reliefs prayed for in the plaint, there should be a plan having sufficient measurements, showing the actual lie of the properties and the existing pathway, prepared by a competent surveyor. in the absence of any such plan, this Court is of the view that a decree cannot be passed in terms of the plaint.”

¶123

Here, in this particular case, plaint C schedule item has not been properly identified. Any Survey Commission was not taken out. Plaint C schedule property has not been identified and demarcated and therefore, the relief sought for by the plaintiff in respect of the plaint C schedule item cannot be granted. Learned counsel for the appellants has sought for the remand of the matter for the identification of the plaint C schedule item. This Court could have done it, had there been evidence to establish the right

¶124

R.S.A. No. 782 of 2015 & R.S.A. No. 828 of 2015

¶125

-: 20 :-

¶126

of easement by prescription. In the absence of any such evidence, this Court is of the view that it will be a futile exercise to remit the matter.

¶127

From all the above, this Court is satisfied that the impugned judgments and decrees passed by both the courts below are not liable to be interfered with. These appeals are devoid of merits and are only to be dismissed, and I do so.

¶128

In the result, these Regular Second Appeals are dismissed. No costs. All pending interlocutory applications in these appeals are closed.

¶129

Sd/- B. KEMAL PASHA, JUDGE.

¶130

ul/aks/-

¶131

// true copy //

¶132

P.S. to Judge.

Gopalan Nair v. Rajamma Suseelamma

Case brief

What is this about?

What did the court decide?

Gopalan Nair v. Rajamma Suseelamma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

N.C.Mathew Vs Shantimol and Another

Vishalakshy Vs Bhaskaran

Siby Joseph Vs Kerala State

Mani Vs Kochammini

Vijayan Vs Vijayamma

Mohanan Vs Thomachan Kadavan