This judgment dismisses appeals against an appellate court's order which reversed the trial court's decree granting declaratory relief. The High Court found no evidence of user 'as of right' by the predecessor in interest to claim a prescriptive easement of way.
Both appeals dismissed.
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.SOMARAJAN
FRIDAY ,THE 01ST DAY OF FEBRUARY 2019 / 12TH MAGHA, 1940
SA.No. 725 of 2002
AGAINST THE JUDGMENT AND DECREE DATED 12-04-2002 IN AS 253/1994 of ADDITIONAL DISTRICT COURT,KOTTAYAM
AGAINST THE JUDGMENT AN DECREE DATED 30-09-1994 IN OS 332/1991 of MUNSIFF COURT, VAIKOM
APPELLANTS-RESPONDENTS-PLAINTIFFS:
1 KRISHNANKUTTY NAIR, CHERUVALLIL VEEDU, VADAKKUMBHAGOM, VADAYAR, VAIKOM
BY ADVS. SRI.T.R.HARIKUMAR
SRI.A.G.ARUN
RESPONDENT/APPELLANT/DEFENDANT:
SOMAN PILLAI, S/O PARAMESWARAN PILLAI, SREENILAYATHAYA PARAYATHU VEEDU, PADINJARE KARA, MURI, NADUVILE VILLAGE, VAIKOM.
BY ADVS. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B.
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01.02.2019, ALONG WITH SA.772/2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SA.No. 725 of 2002 & 772 of 2002 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
FRIDAY ,THE 01ST DAY OF FEBRUARY 2019 / 12TH MAGHA, 1940
SA.No. 772 of 2002
AGAINST THE JUDGMENT AND DECREE DATED 12-04-2002 IN AS 252/1994 of ADDITIONAL DISTRICT COURT,KOTTAYAM
AGAINST THE JUDGMENT AND DECREE DATED 30-11-1994 IN OS 78/1991 of MUNSIFF COURT, VAIKOM
APPELLANTS/RESPONDENTS/DEFENDANTS:
1 KRISHNANKUTTY NAIR CHERUVALLIL VEEDU,VADAKKUMBHAGOM, VADAYAR, VAIKOM.
2 RAJAMMA, WIFE OF RAGHAVAN PILLAI, DO.
BY ADV.SRI.T.R.HARIKUMAR
RESPONDENT/APPELLANT/PLAINTIFF:
SOMAN PILLAI SON OF PARAMESWARAN PILLAI, SREENILAYATHAYA PARAYATHU VEEDU, PADINJARE KARA MURI, NADUVILE VILLAGE, VAIKOM.
BY ADVS. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B.
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01.02.2019, ALONG WITH SA.725/2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SA.No. 725 of 2002 & 772 of 2002 3
JUDGMENT
These two appeals were preferred by the plaintiffs in the leading case in O.S.332/1991 of the Munsiff's Court, Vaikom in which they are the plaintiffs. The defendant in that suit is the plaintiffs in connected suit in O.S.No.78/1991 of the same Court. It was for the grant of a permanent prohibitory injunction against trespass and demolishing the compound wall around their registered holding. The leading case was filed for declaration of easement of way by prescription over
item No.4 schedule property, prohibitory and mandatory injunction. The mandatory injunction sought for removal of obstructing compound wall to an extent of 5 feet. The Trial Court decreed the leading case and dismissed the connected suit. But, in appeal the Appellate Court reversed the finding of the Trial Court and dismissed the leading case
in O.S.No.332/1991 and decreed the suit in O.S.,No.78/1991. Aggrieved by the above said two
SA.No. 725 of 2002 & 772 of 2002 4
decree and judgment, the plaintiffs in the leading case, who are the defendants in the connected suit came up with this appeal.
schedule way. The plaintiffs property scheduled in plaint as item No.1 and 2. It was obtained by the plaintiffs No.1 and 2 under a Registered Will dated 18/10/1986. The testator died on 8/10/1990. The
suit was filed in the year 1991, just after the 5 years from the date of execution of Will dated 18/10/1986. In the said Will, another way was set apart and made mention as means of access to the property of the plaintiff. There is no mentioning about the plaint schedule item No.4 way in the above said Will, though, it was executed just 5 years prior to the institution of the suit. The plaintiffs came into the ownership of the property and obtained title over the same only in the year 1990, just few months before the institution of the suit. Necessarily, there should be pleading in the plaint as to user of the way 'as of right' 'as an easement' for the required period in continuation
SA.No. 725 of 2002 & 772 of 2002 5
of the predecessor in interest namely the testator
under Ext.B3. No evidence adduced to show the user of way by the testator 'as of right' over the item No. 4 schedule property. If it was actually, used by the testator 'as of right' it might have found a place in the document executed by him bequeathing his right, title and interest over the property in favour of the plaintiffs, that too just 5 years before his death and 5 years before the suit. The omission to specify and mention the existence of the said way item No.4 in Ext.B3 Will would be self explanatory with respect to the nature of user, if any, enjoyed by the testator over item No.4 of the plaint. In order to satisfy an easement of way by prescription the user must be 'as of right'. The Commissioner who had located the way by preparing a rough sketch based on the foot marks and the way is lying in a zigzag manner passing through some what middle of the property of the defendant, bifurcating the same into two irregular pieces, this would show that the user, if any, was not 'as
of right'. The findings rendered by the First
SA.No. 725 of 2002 & 772 of 2002 6
Appellate Court, hence deserves no interference.
Both the appeals are hereby dismissed.
Sd/-
P.SOMARAJAN
JUDGE
//TRUE COPY//
P.A. TO JUDGE
msp
3 issues framed by the court
Whether the plaintiffs established user of way 'as of right' by their predecessor in interest to claim an easement of way by prescription over item No.4 schedule property.
Whether the appellant should be discharged from the appeal against the appellate court's judgment dismissing the suit for declaration of easement.
Whether the appellate court's finding that the user of the way was not 'as of right' warrants interference by this Court.
KRISHNANKUTTY NAIR
RAJAMMA
SOMAN PILLAI
P.SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
