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2023 Supreme(Ker) 988

A. BADHARUDEEN
Mercy D/o Peter – Appellant
Versus
Agnus Maria E. J. W/o Joseph Sebastian – Respondent


Advocates:
Advocate Appeared:
For the Appellant : Paul K. Varghese.

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

  1. The judgment emphasizes the importance of specific pleadings and categorical evidence to establish the right of easement by prescription, as mandated under Section 15 of the Easement Act, 1882 (!) (!) .

  2. To prove easement by prescription, the claimant must demonstrate that the easement has been peaceably enjoyed, openly, continuously, as of right, and without interruption for a period of twenty years (!) (!) .

  3. The essential ingredients to establish such an easement include pre-existing enjoyment, peaceable use, enjoyment as of right, openness, continuity for twenty years, and without interruption (!) (!) .

  4. The court found that the plaintiff had sufficiently pleaded and proved these ingredients, particularly highlighting the specific contention that the use of the pathway had been continuous and peaceful for over twenty years, which was essential to establish the right by prescription (!) .

  5. The issue of alternative pathways does not necessarily negate the easement claim if the essentials are proved; the availability of a more convenient route does not automatically defeat the right of easement by prescription unless the easement is of necessity or the essentials are not established (!) (!) .

  6. The court clarified that mere user of a pathway by the public or others does not automatically confer a right of easement by prescription; the user must be peaceable, as of right, and for the requisite period (!) (!) .

  7. The court dismissed the second appeal, concluding that no substantial question of law was involved that could warrant its admission, and reaffirmed that the conditions for second appeal under the relevant procedural provisions were not satisfied (!) (!) .

  8. The overarching principle is that a second appeal can only be admitted if a substantial question of law is involved, which must be formulated and demonstrated to be of legal substance rather than factual or academic in nature (!) (!) .

  9. The final decision was to dismiss the appeal on the grounds that it lacked merit and did not involve any substantial question of law, with all interlocutory orders vacated and pending applications dismissed (!) .

Please let me know if you need further clarification or assistance.


JUDGMENT :

A. BADHARUDEEN, J.

1. This Second Appeal has been filed by the 1st defendant in O.S. No. 258/2016 on the files of the Munsiff Court, Kochi, challenging the decree and judgment in the above Suit dated 16.03.2020, confirmed by the Sub Court, Kochi in A.S. No. 38/2020 vide decree and judgment dated 30.01.2023, under Order XLII Rule 1 read with Section 100 of the Code of Civil Procedure.

2. Heard the learned counsel for the appellant/1st defendant on admission.

3. Perused the lower court records.

4. I shall refer the parties in this appeal with reference to their status before the trial court, as ‘plaintiff’ and ‘defendant’ hereafter for easy reference.

5. In this matter, the 1st defendant is the appellant herein. The plaintiff is the 1st respondent and 2nd defendant is the 2nd respondent herein.

6. The plaintiff instituted the suit asserting right of easement by prescription over plaint B schedule pathway having a length of 66 links and width of 6 links, which is on the eastern side of the plaint schedule property having access to the plaint A schedule property, originally purchased by the plaintiff as per sale deed No. 1778/1995 of S.R.O. Kochi which do form part of partition dee

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