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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. Badharudeen, J.
Kunheedu – Appellant
Versus
Mymoona – Respondent
R.S.A. No. 709 of 2023
Decided On : 02-02-2024
(A) Indian Easement Act, 1882 - Section 15 - Second Appeal - The defendant challenged the decree and judgment of the trial court granting a permanent prohibitory injunction and mandatory injunction regarding a pathway. The trial court found the existence of the pathway and the plaintiffs' right of easement by prescription. The appellate court confirmed the trial court's findings. (Paras 8, 14, 20)
(B) Second Appeal - Substantial Question of Law - The court reiterated that for a second appeal to be maintainable, a substantial question of law must be formulated, which is mandatory under Section 100 of the CPC. (Paras 15, 18)
Facts of the case:
The plaintiffs sought an injunction against the defendant for obstructing a pathway essential for accessing their property, claiming a right of easement by prescription. The trial court ruled in favor of the plaintiffs, which was upheld by the appellate court.
Findings of Court:
The concurrent findings of the trial court and appellate court were upheld, confirming the existence of the pathway and the plaintiffs' rights.
Issues: The main issue was whether the plaintiffs had established their right of easement over the B schedule pathway.
Ratio Decidendi: The court held that the evidence supported the existence of the pathway and the plaintiffs' right of easement, emphasizing the necessity of a substantial question of law for maintaining a second appeal.
Result: Appeal dismissed.
JUDGMENT :
A. Badharudeen, J.
1. The defendant in O.S. No. 61/2010 on the files of Munsiff Court, Parappanangadi, has filed this Second Appeal challenging the decree and judgment in the above Suit dated 23.12.2015 and the decree and judgment in A.S. No. 22/2016 dated 12.07.2023 on the files of the Sub Court, Tirur. The plaintiffs are the respondents herein.
2. Heard the learned counsel for the defendant/appellant on admission.
3. I shall refer the parties in this appeal with reference to their status before the trial court, as ‘plaintiffs’ and ‘defendant’ hereafter for easy reference.
4. Perused the verdicts under challenge and the lower court records made available.
5. Suit was filed by the plaintiffs seeking relief of permanent prohibitory injunction restraining the defendant from obstructing use of B schedule way or to annex the same as part of the defendant's property. Later the Suit was amended with additional prayer for mandatory injunction directing the defendant to restore the B schedule pathway since there was demolition of the same during the pendency of the Suit. According to the plaintiffs, B schedule pathway available to the property of the defendant is the only access to plaint A schedule property and the house therein and the plaintiffs had got the right of easement by prescription over the same. Since the defendant attempted to obstruct the same, the present Suit was filed.
6. The defendant filed a written statement denying the entire allegations. The sum and substance of the contention raised by the defendant is that no way as B schedule is available and the same is part and parcel of the property of the defendant. Further, the plaintiffs are having another alternative pathway. The prayer for mandatory injunction incorporated by way of amendment was also resisted contending the alleged demolition of the wall on the northern side of his property as false.
7. The trial court ventured the matter. PW1 was examined and Exts.A1 to A8 were marked on the side of the plaintiffs. DW1 was examined and Exts.B1 to B6 were marked on the side of the defendant. CW1 was examined as court witness and Exts.C1 to C12 as well as Ext.X1 were also marked as court exhibits.
8. On evaluation of the evidence, after hearing both sides the trial court granted decree as under:
1. The defendant and his men are hereby directed to restore the previous position of plaint B schedule property at its entrance about 30 feet, within two months from the date of this judgment, failing which, the plaintiffs are at liberty to restore the previous position of plaint B schedule pathway by his own expenses.
2. The defendant and his men are also permanently restrained from causing any obstruction to the plaintiff' and others using the pathway and from blocking the pathway and annexing the same with the property of the defendants.
3. The plaintiffs is allowed to realise the costs of the suit.
4. OS 92 of 2010 is dismissed with costs of the defendant number one.”
Though the finding of the trial court was assailed in appeal, the appellate court also confirmed the verdict of the trial court and dismissed the appeal.
9. While assailing the concurrent verdicts, the learned counsel for the defendant vehemently argued that though on multiple occasions the commissioners visited the plaint schedule property, in none of the reports of the Commissioners, the Commissioners found a way as B schedule available, starting from Vengara-Achanambalam road towards east through the defendant's property and reaches upto the plaint schedule property. According to the learned counsel, as per Ext.C2 rough sketch, the way is not shown as one continuous available upto the house of the plaintiff. It is also pointed out that in none of the Commissioner's reports the respective Commissioners never opined availability of B schedule pathway starting from Vengara-Achanambalam road upto the plaint schedule property in any manner. Therefor
For a second appeal to be maintainable, a substantial question of law must be formulated, as mandated by Section 100 of the CPC.
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 right to use a path for accessing one's property can be established through long-term use and relevant property documents, regardless of explicit claims under the Easement Act.
Element of necessity may not be so absolute as in the case of an easement of necessity and unlike it a quasi-easement may not get extinguished by the cessation of the necessity.
A claimant must establish exclusive settled possession and document rights to land for relief against interference; admissions impacting access rights must be substantiated.
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....
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.
To establish an easement of necessity, there must be common ownership and impossibility of enjoyment of one tenement without the other; mere lack of alternative access is insufficient.
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