Point of Law: 'Easement' is a precarious and special right. The right of easement is one which a person claims over a land that is not his own.

JUDGMENT :

1. The appellants filed O.S.No.261 of 1999 before the Munsiff’s Court, Perumbavoor seeking a decree of declaration and injunction, both prohibitory and mandatory. Their claim was that they prescribed right of way along plaint C schedule pathway. The respondents, part of whose property is plaintiff C schedule, opposed that claim by contending that such a pathway never existed and the same was the ridge of their paddy field. The learned Munsiff dismissed the suit as per the judgment dated 11.06.2007. In the appeal preferred by the appellants under Section 96 of the Code of Civil Procedure, 1908, the learned Additional District judge, North Paravur confirmed the said judgment and decree. Aggrieved by the same, this Second Appeal under Section 100 of the Code is preferred.

2. The substantial questions of law formulated for consideration are,-

1) Is not a dominant owner qualified to prescribe right of way along the ridge of a reclaimed paddy field?

2) Is the finding of facts by the courts below in relation to the claim of the appellants that they prescribed right of way along plaint C schedule is so irrational attracting the blame of being perverse?

3. The 1st appellant is the owner and in possession of plaint A schedule property. The 2nd appellant is the owner and in possession of plaint B schedule property. The property of the respondents abuts the public road at its northern side. The appellants claim that they have been using for the last more than 35 years a five feet wide area on the northern and western sides of the respondents' property, which starts from the public road on the northern side. The said pathway, which the appellants described in plaint C schedule, is stated to branch; one towards south and other towards west. The branch towards south reaches plaint A schedule property and the other proceeds towards the west to reach plaint B schedule property.

4. The respondents would contend that such a pathway never existed along the northern or western sides of their property. Their contention is that they had to replace the old gate on the northern side and the old mud bund on the boundary of their property. They contended that the appellants making use of that opportunity instituted the suit claiming a pathway, which never had existed or enjoyed by the appellants. The respondents further contended that the appellants have been using two pathways; one along the Church property situated on the northern side and the other along the ridges of the paddy field, which situates further east and south of the respondents' property.

5. While the appellant tried to substantiate their case with the aid of the oral testimonies of PW1 to 6 and the successive reports of the Commissioner, the respondents apart from relying on the oral testimony of DW1, who is the 1st respondent, rely on the circumstances arising from the appellants’ evidence to urge that the claim on plaint C schedule pathway is totally baseless. The learned counsel appearing for the appellants would submit that both the courts below did not appreciate the evidence in its proper perspective whereby the nature of the C schedule pathway was not understood. It is the submission of the learned counsel that such a mistaken understanding of the facts resulted in dismissing the suit. The pathway referred to by the courts below is the one that starts from the road on the eastern side of the respondents’ property and proceeds along the ridge of the paddy fields, which is situate far away from plaint A and B schedule properties. That is the pathway suggested by the respondents as one of the alternative pathways and according to the learned counsel for the appellants, that was misunderstood by the courts below as plaint C schedule. It is pointed out that the C Schedule pathway is along the northern and western sides of the respondents’ property, which starts from the northern public road and runs abutting the compound wall of the Church property. It is in between the Church pr