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IN THE HIGH COURT OF KERALA
P. Bhavadasan, J.
Joy Joseph and others - Petitioners
Versus
Jose Jacob alias Thankachan - Respondent
S.A. No. 42 of 1996
Decided On : 20-08-2010
Easement - Property Dispute - Ext. A1, Ext. B1, Ext. C3(a) - The court discussed the claim of easement by necessity and prescriptive right of easement. It concluded that the defendants were not entitled to use the pathway by way of easement by necessity or prescriptive right of easement. The court found that the statutory period for prescriptive right of easement had not been completed and there was no evidence to show that the pathway was in existence prior to 1971. The court also upheld the finding that the plaintiff's right over the disputed property had been lost by adverse possession and limitation.
Fact of the Case:
The plaintiff claimed ownership of a property and filed a suit for declaration, recovery of possession, and permanent prohibitory injunction against the defendants who had trespassed and enclosed a portion of the plaintiff's property within their compound wall. The Trial Court dismissed the suit, but the lower Appellate Court reversed the decision regarding the defendants' right to use the pathway.
Finding of the Court:
The court found that the defendants were not entitled to use the pathway by way of easement by necessity or prescriptive right of easement. It upheld the finding that the plaintiff's right over the disputed property had been lost by adverse possession and limitation. The appeal and cross objection were dismissed.
Issues: The issues included the defendants' claim of easement by necessity and prescriptive right of easement, the plaintiff's right over the disputed property, and the finding of the lower Appellate Court.
Ratio Decidendi: The court concluded that the defendants were not entitled to use the pathway by way of easement by necessity or prescriptive right of easement. It upheld the finding that the plaintiff's right over the disputed property had been lost by adverse possession and limitation.
Final Decision: The appeal and cross objection were dismissed. There was no order as to costs.
Certainly. Based on the provided legal document, here are the key points summarized:
The court held that the defendants were not entitled to claim easement by necessity or prescriptive right of easement for the pathway in question. The evidence did not support the existence of the pathway prior to 1971, and the statutory period for prescriptive easement had not been completed (!) (!) .
The court confirmed that the plaintiff's right over the disputed property was extinguished by adverse possession and limitation, as the defendants had been in long-term possession and had made valuable improvements (!) (!) .
The case involved a dispute over a pathway used by the defendants to access their property, with claims based on easement by necessity and prescription. The courts found that the pathway's existence was not established prior to 1971, and thus, the defendants could not claim a prescriptive easement (!) (!) .
The lower appellate court's decision to set aside the trial court's judgment regarding the defendants' claim of prescriptive easement was upheld, as the statutory period had not been met and the pathway's existence was not proven before 1971 (!) (!) .
The court emphasized that the claim of easement by necessity was rightly rejected, especially since the pathway was found to have been created after the relevant period and there was an alternative means of access available to the defendants (!) (!) .
The plaintiff's claim of ownership and the right to recover possession was dismissed based on adverse possession, with the court affirming that the defendants had been in continuous and hostile possession for the statutory period (!) .
The appeal and cross-objection were dismissed, with the court noting that there was no merit in the arguments challenging the findings of adverse possession and the denial of prescriptive easement (!) .
The court also clarified that the rights of the kudikidappukars (tenant farmers) did not establish an easement of necessity, particularly since the pathway was found to have been created after their occupancy and there was an alternative access route (!) (!) .
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P. Bhavadasan, J.
The defendants in Original Suit 243/1987, who had got a decree in their favour from the Trial Court, but found themselves deprived of the benefits of the decree by the lower Appellate Court are the appellants. The parties and facts are hereinafter referred to as they are available before the Trial Court.
2. The plaintiff claimed to have obtained plaint A schedule property as per Ext. A1 sale deed dated 27/08/1974. A portion of the property having a width of 5 links and an extent of 2 cents comprised in 24 cents of property also belongs to the plaintiff. First defendant purchased property on the northern side of the plaintiff’s property. He has a means of access from his property to the road lying on the northern side of the plaint schedule property through the adjacent property on the eastern side. He also purchased a property lying adjacent to his property on the western side having a width of 3 links from the side of M.C. Road towards east and then at a width of 5 links towards north upto his property for pathway and the first defendant has been using that portion of the property as a way for his ingress and egress to his property from the M.C. Road. He has no need to use the 5 links width pathway having an extent of 2 cents to gain access to the outside world. Defendants 2 and 3 are residing on the western side of the plaint schedule property and there is a boundary wall demarcating the property of the first defendant. It is found that a portion of the plaint schedule property has been trespassed upon by the defendants and enclosed within their compound wall. Under these circumstances, it became necessary to institute suit for declaration, recovery of possession and for permanent prohibitory injunction etc.
3. In the written statement filed by the first defendant, he contended that item No. 2 in the written statement having a width of 5 links is lying on the western side of the plaintiffs property in north-south direction and it leads from the M.C. Road to the property shown as item No. 1 in the written statement. He claimed right of easement by necessity and prescription over that way. It is pointed out that the plaintiffs tried to dispute the use of the way, police was informed and the plaintiffs had to remove the obstruction. A counter claim was also received by the first defendant for declaration of right of way "over the portion of way lying on the western side of plaint schedule property described as item No. 2 in the written statement.
4. Defendants 2 and 3 also resisted the suit. They denied that the plaintiff had any manner of right over 2 cents as alleged in the plaint and the suit had been filed with the ulterior motive of annexing the portion of the pathway to the property of the plaintiff. It is contended that the defendants and their predecessors have been using the pathway for a considerably long period and there is no other means of access to the property of the first defendant. They therefore prayed for a prescriptive right of easement.
5. The plaintiff filed a reply to the counter claim raised by the first defendant. He denied the allegation that the way in question was not at all used by the defendants, who have other means of access to their property.
6. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 to 4 and documents marked as Exts. A1 to A3 from the side of the plaintiff. The defendants examined DWs 1 to 6 and had Exts. B1 to B6 marked. Exts. C1 to C3(a) are the commission reports and plans. Exts. X1 to X6 are third party exhibits.
7. On an evaluation of the evidence in the case, the Trial Court came to the conclusion that the plaintiff has lost his title to plot No. D shown in Ext. C3(a) commission plan by way of adverse possession and limitation. It was also held that the defendants have a prescriptive right of easement to use the pathway. Accordingly the suit was dismissed.
8. Plaintiff took up the matter in appeal as A
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