Back
High Court of Kerala
THE HONOURABLE MR. JUSTICE S.S. SATHEESACHANDRAN
Prasannakumari D/o Leelakuttyamma
Versus
Krishnakumari D/o. Saradamma & Another
RSA.No.704 of 2010
Decided on : 03-03-2011
Easement - Prescriptive Easement - Ext.A1 Partition Deed - Pathway through Defendants' Properties - Ext.C1 Report and Plan - Pathway Width and Length - Right of Prescriptive Easement
Fact of the Case:
The suit involved a claim for declaration of the right of prescriptive easement of the plaintiffs over a pathway and for injunction to restrain the defendants from causing any obstruction to the plaintiffs in enjoying such pathway. The lower appellate court reversed the decree granted in favor of the plaintiffs, leading to the appeal by the second plaintiff.
Finding of the Court:
The court found that the evidence demonstrated the existence of a pathway through the properties of the defendants, and its continuous use and enjoyment by the plaintiffs. The court modified the decree of the trial court to confine the declaration of the right of prescriptive easement to a pathway of specific dimensions as identified by the advocate commissioner.
Issues: The substantial questions of law raised for hearing of the appeal dealt with the correctness of the finding on easement by prescription, the burden on the defendants to prove the existence of an alternative pathway, and the abatement of the appeal by the death of one of the appellants pending the appeal.
Ratio Decidendi: The court held that the claim of prescriptive easement over the pathway was established based on the evidence presented, and the lower appellate court's decision to interfere with the decree of the trial court was erroneous. The court also clarified the dimensions of the pathway for the declaration of the right of prescriptive easement.
Final Decision: The appeal was allowed, and the decree of the trial court, inclusive of the prohibitory injunction, was restored in reversal of the decree of dismissal of the suit passed by the lower appellate court. Both sides were directed to suffer their respective costs.
Certainly. Based on the provided legal document, here are the key points:
The main legal issue involved the recognition and declaration of a prescriptive easement over a pathway, with the court modifying the decree to specify the pathway's dimensions [judgement_subject].
The case concerned a claim by the plaintiffs for a declaration of their right of prescriptive easement over a pathway, along with an injunction to prevent obstruction by the defendants. The lower appellate court reversed the initial decree in favor of the plaintiffs, leading to the appeal (!) .
The pathway in question, described as item No.4, was used by the plaintiffs before and after a partition, and they claimed continuous use for over the statutory period to establish prescriptive easement. The pathway's dimensions were specified as approximately 42.8 meters in length and 70 centimeters in width, based on expert reports (!) (!) .
The defendants disputed the existence of the pathway and argued that any previous use was permissive or based on easement by necessity, which they claimed had been extinguished by the existence of an alternative pathway. They also contended that the plaintiffs' claim was vague and lacked precise particulars [15000231590002] (!) .
The court found that the plaintiffs had established the existence of the pathway through credible evidence, including witness testimony and expert reports, and that their continuous use over the statutory period supported their claim of prescriptive easement. The court emphasized that the claim was not against other co-owners but was based on prior use before partition, which had matured into a prescriptive right (!) (!) .
The court noted that the lower appellate court erred in its reasoning by suggesting that a co-owner cannot claim easement against other co-owners, and clarified that the plaintiffs' claim was based on a right of easement arising from prior use, not as co-owners asserting rights against each other (!) .
The reports and plans produced by the court-appointed commissioner confirmed the existence of a pathway passing through the defendants' properties, although with some variation in measurements. The evidence was sufficient to support the plaintiffs' claim, but the declaration of easement was to be confined to the dimensions identified by the commissioner (!) (!) .
The appeal was allowed, and the decree of the trial court was restored with modifications to the pathway's length and width. Both parties were ordered to bear their own costs, and the overall judgment emphasized the importance of proper scrutiny of evidence and pleadings in easement cases (!) .
The court also addressed procedural issues regarding the death of one of the appellants during the appeal process, concluding that the appeal had abated and that the disposal on merits was proper because the appeal was originally filed jointly by the defendants as a whole (!) .
Overall, the judgment reinforced that a right of prescriptive easement can be established through continuous, open, and peaceful use over a statutory period, even if the pathway is not precisely identified in the pleadings, provided credible evidence supports such use (!) (!) .
Please let me know if you need further analysis or specific legal advice regarding this case.
The 2nd plaintiff in the suit is the appellant. Suit was for declaration of the right of prescriptive easement of the plaintiffs over a pathway, and for injunction to restrain the defendants from causing any obstruction to the plaintiffs in enjoying such pathway. First plaintiff is the mother of the appellant/2nd plaintiff. Suit was decreed in favour of the plaintiffs, but, pending appeal by the defendants, the 1st plaintiff passed away, and the 2nd plaintiff thereupon was recorded as her legal heir. The decree granted in favour of the plaintiffs, after re-appraisal of the evidence, was reversed by the lower appellate court which non-suited them. Feeling aggrieved, the second plaintiff has preferred this appeal.
2. Brief facts necessary for disposal of the appeal can be summed up thus:
Four items of properties are described in the plaint. Item No.1 is the property of the plaintiffs comprising their residential building which was allotted under the partition effected by the members of their tarwad towards the share of their thavazhi. Ext.A1 is the partition deed. Item No.2 lying to the south of item No.1 was obtained by the 1st defendant under the same deed. Item No.3 which lies to the south and east of item No.2 belonged to the 3rd defendant. To the south of item Nos.2 and 3, there is a panchayat road lying in east-west direction, which joins a National Highway situate on the east. Through item Nos.2 and 3 properties, the plaintiffs are enjoying a pathway from plaint item No.1 to reach the panchayat road. That pathway described as item No.4 which had been enjoyed even before the partition under Ext.A1 by the members of the tarwad continued to be enjoyed by the plaintiffs after partition, and now, they have prescribed a right of prescriptive easement over the same by their uninterrupted use for more than the statutory period, was the basis of the case set up to claim the reliefs canvassed in the suit alleging threat of obstruction to the enjoyment of the pathway by the defendants. The pathway running through the properties of defendants 1 and 3, is described as having a width of 2 meters and length of 45 meters. 2nd defendant was impleaded in the suit alleging that he is in management of item No.2 belonging to the 1st defendant. Suit claim was resisted by defendants 1 and 3 filing a joint written statement, in which disputing the existence of the pathway, item No.4, through item Nos.2 and 3, they contended that previously when the properties remained unbounded, the plaintiffs used to pass through their properties on permission given. The plaintiffs have not prescribed any right of prescriptive easement or easement by necessity over any portion of item Nos.2 and 3 properties for use and enjoyment as a pathway, according to them. They also contended that considering the relationship of the parties, they have set apart a pathway touching upon the boundaries of item Nos.2 and 3 of the plaint properties for the use of the plaintiffs as a pathway to item No.1 property from the panchayat road situate on the south.
3. Suit instituted for the reliefs of declaration of right of prescriptive easement and for perpetual prohibitory injunction was later amended by the plaintiffs to seek a decree of mandatory injunction also alleging that obstruction had been caused to item No.4 pathway by the defendants by enclosing the pathway constructing a compound wall.
4. On the materials tendered by both sides, which consisted of Pws.1 to 3 and Exts.A1 and A2 for the plaintiffs, Exts.B1 and B2 for the defendants, and, Exts.C1 and C2 series reports and plans prepared by an advocate commissioner deputed by the court for local inspection, the trial court negativing the challenges of the defendants upheld the claims raised by the plaintiffs and granted a decree declaring their right of prescriptive easement over item No.4 pathway, and also restraining the defendants by prohibitory injunction from causing any obstruction to them in using item No.4
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
