In this regular second appeal, the appellant challenged the dismissal of his suit for permanent prohibitory injunction claiming prescriptive easement. The High Court upheld the dismissal, holding that the appellant failed to prove the existence of a pathway as of right for 20 years and that his user was permissive.
The second appeal is 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.
RSA NO. 184 OF 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 14 T H DAY OF MAY 2024 / 24TH VAISAKHA, 1946 RSA NO. 184 OF 2023
AGAINST THE JUDGMENT AND DECREE DATED 08.02.2023 IN AS NO.24 OF 2019 OF ADDITIONAL DISTRICT COURT-II, ALAPPUZHA ARISING OUT OF THE JUDGMENT AND DECREE DATED 27.02.2019 IN OS NO.282 OF 2015 OF ADDITIONAL MUNSIFF COURT, ALAPPUZHA
APPELLANT/APPELLANT/PLAINTIFF:
P.K. OMANAKUTTAN
AGED 59 YEARS, S/O PADMANABHAN, RESIDING AT KALARICKAL VAISHNAVAM, PUNNAPRA P O, ALAPPUZHA, PIN - 688003
BY ADVS. K.S.HARIHARAPUTHRAN PINKU MARIAM JOSE
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, ALAPPUZHA, PIN - 688001
2 ASSISTANT EDUCATIONAL OFFICER ALAPPUZHA, PIN - 688001
3 THE HEADMASTER GOVERNMENT C.Y.M.A U.P SCHOOL, PUNNAPRA P O, ALAPPUZHA, PIN - 688003
BY SMT.K.B.SONY, GOVERNMENT PLEADER
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18.12.2023, THE COURT ON 14.5.2024 DELIVERED THE FOLLOWING:
RSA NO. 184 OF 2023
2
T.R. RAVI, J.
R.S.A. No.184 of 2023
Dated this the 14 th day of May, 2024
JUDGMENT
This appeal is preferred by the plaintiff in a suit for permanent prohibitory injunction based on a claim for easement by prescription, against the dismissal of the suit by the trial court and the appeal by the First Appellate Court. When the case came up for admission, the Government Pleader took notice for the respondents and this Court had called for the records of the case. The case has been posted for admission, after receipt of the trial court records. The parties are referred to as per their status before the trial court.
RSA NO. 184 OF 2023
3
easement by prescription over the property, that there is no pathway through the property of the 3rd defendant as claimed by the plaintiff, that there is a temporary fence on the incomplete portion of the compound wall on the southern side, and that when the construction was started on the incomplete portion of the compound wall on the southern side, the plaintiff’s wife obstructed the construction.
RSA NO. 184 OF 2023
4
easement over plaint schedule item No.2. The trial court as well as the First Appellate Court have, on appreciation of the evidence on record, found that the plaintiff has failed to establish such a right. The determination regarding the existence of a way in the manner described in the plaint is a pure question of fact. For establishing a right of prescriptive easement, the plaintiff should be able to show the existence of the way and the user of the way as of right without any obstruction for the prescribed period of 20 years. It is seen from the judgment of the trial court and the First Appellate Court that, the Advocate Commissioner has noted a pathway in the report and plan. However, the Advocate Commissioner has not identified the way as shown in plaint schedule item No.2 since neither the width of the way nor the length of the way has been shown by the Advocate Commissioner. What is stated is that the way cannot be stated to have a uniform width. It is also proved that there is a gate on the western compound wall of the school which is kept locked except during school hours. The evidence of DW1 in this regard has not been challenged in the cross-examination. The witnesses examined on behalf of the plaintiff also stated about the existence of the gate. PW2, who was an independent witness examined, specifically stated that that gate would be locked in the evening. PW4 who is the Advocate Commissioner has
RSA NO. 184 OF 2023
5
stated that the gate can be locked. PW1 , the plaintiff, has admitted that the gate came into existence 15 years back. He says that the fact was brought to the notice of the Headmas ter of the School and the Headmaster had given consent to the plaintiff’s user. The above factors were, as rightly found by the courts below, at best an indication of a permissive user of the school compound by the plaintiff. Such a permissive user cannot ripen into a right of prescriptive easement. Even if the plaintiff has used a portion of the school's compound for access to a public road through the gate of the school, the same cannot be termed as a user as of right and as easement. The tria l court and the first appellate court have dealt with the evidence on record in detail and from the correct perspective and the findings do not warrant any interference.
No substantial questions of law arise for consideration. The second appeal fails and is dismissed.
Sd/-
T.R. RAVI
JUDGE
Pn
3 issues framed by the court
Whether the appellant has been able to establish a right of prescriptive easement over the pathway in the third defendant's school property.
Whether permissive user of the school compound ripens into a right of prescriptive easement.
Whether the findings of the lower courts regarding the failure to establish a right of prescriptive easement warrant interference.
P.K. Omanakuttan
State of Kerala
Assistant Educational Officer Alappuzha
Headmaster Government C.Y.M.A U.P School, Punnapra P O, Alappuzha
T.R. Ravi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
