Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
Mercy D/o Peter – Appellant
Versus
Agnus Maria E.J. W/o Joseph Sebastian – Respondent
R.S.A. No. 605 of 2023
Decided On : 05-12-2023
EASEMENT - Right of Easement by Prescription - Section 15 of the Easement Act, 1882 - Section 15 of the Easement Act, 1882 - The court discussed the essential ingredients to establish easement by prescription as mandated under Section 15 of the Easement Act. It highlighted the need for peaceable enjoyment, open use, and uninterrupted access for twenty years. The court also referred to relevant case laws to emphasize the importance of specific pleadings and categorical evidence to establish the right of prescription.
Fact of the Case:
The plaintiff claimed right of easement by prescription over a pathway and sought a permanent prohibitory injunction against the defendants. The trial court and the appellate court granted the decree in favor of the plaintiff. The 1st defendant filed a Second Appeal challenging the verdicts of the lower courts.
Finding of the Court:
The court found that the plaintiff had pleaded and proved the essential ingredients to establish easement by prescription as per Section 15 of the Easement Act. It held that the concurrent verdicts of the trial court and the appellate court did not require interference, as they were in order.
Issues: The issues revolved around the establishment of right of easement by prescription, the sufficiency of pleadings, and the evidence presented by the parties.
Ratio Decidendi: The court emphasized the importance of specific pleadings and categorical evidence to establish the right of prescription. It also clarified the essential ingredients required to prove easement by prescription as per Section 15 of the Easement Act.
Final Decision: The Second Appeal was found to be meritless and dismissed without being admitted. All interlocutory orders and pending applications were vacated and dismissed.
Certainly. Based on the provided legal document, here are the key points:
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 (!) (!) .
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 (!) (!) .
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 (!) (!) .
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 (!) .
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 (!) (!) .
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 (!) (!) .
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 (!) (!) .
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 (!) (!) .
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 deed No. 2648/1986 of S.R.O. Kochi. According to the plaintiff, plaint B schedule is the only way available to plaint A schedule property, on which the plaintiff perfected right of easement by prescription. When the defendant attempted to obstruct its use, for declaration of the said right, prohibitory injunction was sought for.
7. The 1st defendant entered appearance and filed written statement, though the 2nd defendant remained ex-parte. The contention raised by the 1st defendant in the written statement is that plaint A schedule property is a plot lying adjacent to the property belonging to the husband of the plaintiff. Thereafter, as per the desire of the plaintiff’s husband, 11 cents out of 11½ cents land belonged to the defendants and their mother was sold in favour of the plaintiff after retaining half cent to provide a pathway of 6 links for the ingress and egress to the property of Rosakutty w/o Rocky, situated on the northern side of plaint A schedule. According to the defendants, B schedule pathway is provided for the ingress and egress towards property of V.R. Charly and V.R. Antony S/o Late Rocky and they have been using the same from 1995 onwards. Therefore, the right claimed by the plaintiff over B schedule was disputed.
8. The trial court ventured the matter. PWs. 1 to 3 were examined and Exts.A1 to A4 were marked on the side of the plaintiff. DW1 was examined on the side of the defendants. Ext.C1 commission report and Ext.C1(a) rough sketch also were marked as court’s exhibits.
9. On analysis of the evidence and after hearing the contesting parties, the learned Munsiff granted decree declaring right of easement by prescription over B schedule pathway in favour of the plaintiff and thereby the defendants, their men and agents were restrained by a decree of permanent prohibitory injunction from causing any sort of obstruction to the plaint B schedule pathway. Aggrieved by the verdict of the trial court, the 1st defendant filed appeal before the Sub Court, Kochi and the learned Sub Judge dismissed the appeal.
10. While assailing the concurrent verdicts of the trial court as well as the appellate court, the learned counsel for the 1st defendant argued at length to convince this Court that no sufficient pleadings incorporated in the plaint to claim right of easement by prescription and the evidence available also do not suggest establishment of the said right. Therefore, the courts below went wrong in granting the relief sought for and the same would require interference by admitting the Second Appeal. It is argued by the learned counsel for the 1st defendant that mere user of the way by the plaintiff in common with general public will not confer on them right of easement by prescription and in this regard a decision of this Court reported in So
The main legal point established in the judgment is the requirement for specific pleadings and categorical evidence to establish the right of easement by prescription, as well as the essential ingred....
The main legal point established in the judgment is the requirement of peaceful, open, uninterrupted, and as-of-right enjoyment for a period of twenty years to establish the right of easement by pres....
First appellate court's perverse denial of pathway existence and prescriptive easement set aside; trial decree restored on unimpeachable commissioners' reports, witness evidence proving 50+ years' op....
For a second appeal to be maintainable, a substantial question of law must be formulated, as mandated by Section 100 of the CPC.
A plaintiff must prove the existence of a claimed easement pathway with independent evidence to succeed in injunction claims.
The prescriptive right to an easement requires uninterrupted, open user of the pathway, not existing under consent, corroborated by the surrounding facts and circumstances.
Establishment of easement rights requires explicit documentation, and mere permissive rights do not confer legal easements; plaintiffs failed to prove their claim.
Easement rights require clear identification and specific evidence; the absence of a proper survey plan undermines claims for easement by prescription.
An easement of necessity requires proof of common ownership and that the easement is essential for the enjoyment of the property; mere claims of necessity without establishing these conditions are in....
'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.
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
