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2012 Supreme(Ker) 3
High Court of Kerala
THOMAS P. JOSEPH
Suhara & Another
Versus
Robert & Others
R.S.A. No. 346 of 2005
Decided on: 03-01-2012
For the Petitioners:Rajit, Advocate.
For the Respondents:K. Ramachandran; K. Mohammed Faisal Naha; K.P. Sreekumar & Rajesh R. Pillai, Advocate.
The central legal point established in the judgment is the recognition and protection of easement rights under Section 15 of the Easement Act, based on long-term use without permission and the infringement of such rights by unauthorized construction.
Headnote:
Easement Rights - Disputed Way - Section 15 of the Easement Act - [SUBSTANTIAL QUESTIONS OF LAW] - [a), b), c), d), e), f)] - [SUMMARY]
Fact of the Case:
The dispute concerns a way, its dimension, and user. The original plaintiff claimed a right of easement by prescription over a way with a width of six feet, which was the only access to the property. The defendants contested the existence and width of the way, leading to a trial court judgment in favor of the defendants. The respondents appealed, challenging the trial court's findings.
Finding of the Court:
The appellate court upheld the right claimed by the respondents over the disputed way and directed the removal of a basement constructed by the defendants, based on the evidence and facts presented.
Issues: The substantial questions of law raised by the appellants included the interference with trial court findings, the width of the disputed way, the existence of natural boundaries, the credibility of witnesses, and the impact of construction by the defendants on the plaintiff's easement rights.
Ratio Decidendi: The court upheld the right of the respondents over the disputed way based on evidence of long-term use without permission, and found that the construction of the basement by the defendants infringed on the respondents' easement rights, leading to the direction for its removal.
Final Decision: The Regular Second Appeal was allowed in part, modifying the judgment and decree to uphold the injunctions granted by the lower courts and directing the removal of the disputed basement and the construction of a compound wall by the respondents at their expense.
Certainly. Based on the provided legal document, here are the key points summarized with appropriate references:
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The case concerns a dispute over a right of easement for a pathway, with the original claim based on long-term use without permission, which was recognized as establishing a prescriptive easement under Section 15 of the Easement Act (!) (!) .
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The dispute involves the width and existence of the disputed way, which the original plaintiff claimed to be six feet wide and the only access to their property. The trial court found that the way did not have the claimed width, but the appellate court upheld the respondent's right based on evidence of long-term use (!) (!) .
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The appellate court considered whether the user was as of right and whether the user was with or without permission. It found the user to be as of right, based on long-term use without permission, and thus established a prescriptive easement (!) .
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The court examined whether the construction of a basement and other structures by the defendants infringed on the easement rights. It concluded that the basement was a new development that encroached upon the easement and ordered its removal (!) .
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The court discussed the natural boundaries and physical features such as old trees and septic tanks, which support the existence and boundaries of the easement, and found no justification to ignore these natural boundaries (!) .
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The court addressed the credibility of witnesses and the evidence of interested witnesses versus expert reports, ultimately relying on the evidence and findings of the court-appointed Advocate Commissioner (!) .
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The court acknowledged that the user of the way was continuous and without permission for a period exceeding statutory limits, leading to the inference of a right of easement by prescription (!) .
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The final decision was to allow the appeal in part, uphold the injunctions, and direct the removal of the basement structure up to the level of the existing pathway, and to have the respondents construct a new compound wall at their expense, under supervision (!) .
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The court emphasized that the respondents should undertake the removal and construction work at their own expense, to resolve the long-standing dispute and prevent further litigation (!) .
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All pending interlocutory applications were dismissed, and the parties were to bear their own costs (!) .
Please let me know if you need a specific legal analysis or further assistance.
Thomas P. Joseph, J.
1. Defendants in O.S. No.793 of 1997 of the court of learned Munsiff, Chavakkad are the appellants before me, requesting to decide the following substantial questions of law.
(a) Was the lower appellate court justified in the facts of the case in interfering with the well reasoned findings of the trial court?
(b) In a suit claiming right of easement by prescription where, at the commencement the way has only a width of 3½ feet, can the appellate court find the existence of a way having a width of 6 feet?
(c) Was the appellate court justified in ignoring the natural and existing boundaries enclosing ‘B’ schedule way, namely, old trees, old septic tank, tank, car porch, etc?
(d) Is the evidence of interested witnesses, sufficient to over ride the fact finding report and evidence of the advocate Commissioner?
(e) Has not the plaintiff lost his right of easement by prescription by his act of silence, when the septic tank, car porch & tank was constructed by the defendants?
(f) Was not the act of putting up the car porch, septic tank & tank a challenge to the open and hostile user of way by the plaintiff?
2. The dispute concerns a way, its dimension and user. It is not very much in dispute that the disputed way described as plaint B schedule runs along the eastern boundary of property of appellants. Mother of respondents filed the suit claiming that plaint A schedule originally belonged to her husband as per Exts.A1 and A2, and that on the death of the husband plaint A schedule devolved on herself and children, the suit was filed on behalf of the children as well. Later, original plaintiff died and his representatives were impleaded, who are the respondents before me. According to the original plaintiff, plaint B schedule is having a width of six feet, is the only access to plaint A schedule and on account of user of the way as of right for more than 20 years, original plaintiff and others acquired a right of easement under Section 15 of the Easement Act over plaint B schedule. Alleging that appellants attempted to reduce the width of plaint B schedule by two feet by constructing a basement encroaching into the plaint B schedule, original Plaintiff sued the appellants for mandatory and prohibitory injunction. Appellants contended that there is no such way as described in B schedule though there is a way along the eastern side of their property having a width of three feet through which occasionally original plaintiff and others used to walk. Learned Munsiff, on a consideration of the evidence found that the way does not have six feet width as claimed by the original plaintiff. Learned Munsiff observed that the Advocate Commissioner noticed three coconut trees towards west of basement which was allegedly constructed trespassing into the way, those coconut trees are pretty old and it is unlikely that projecting into the road and beyond the level of coconut trees appellants would construct the basement. On that premise learned Munsiff refused to grant mandatory injunction to remove the basement but in respect of the available way, a decree for prohibitory injunction was granted. Respondents were not satisfied with the judgment and decree of trial court and filed A.S. No.259 of 2001 in the court of learned District Judge, Thrissur. Learned District Judge held that even as per the reports and sketch submitted by the Advocate Commissioner, the way is not having uniform width, it is pretty old and the disputed basement is a new development. Learned District Judge concurred with the finding of learned Munsiff regarding right of respondents over the way and by a mandatory injunction directed removal of the basement. That judgment and decree are under challenge in this Second Appeal at the instance of defendants raising the above substantial questions of law.
3. It is contended by learned counsel for appellants that there was no reason for the learned District Judge to interfere with the findings entered by
