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IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A. Abdul Hakhim, J.
Ravi S/o Late.Kunjupaniken and Ors. – Petitioners
Versus
Lekshmi (Died), D/o. Late Nangeli and Ors. – Respondents
RSA NO. 1262 OF 2011
Decided On : 11-04-2025
(A) Indian Easement Act - Section 15 - Declaration of easement by prescription - Plaintiff claimed right of easement over pathway for vehicular access, asserting use for over 50 years - Defendants contested existence and width of pathway - Trial Court dismissed suit for lack of proof - First Appellate Court allowed appeal, granting easement - Substantial question of law admitted regarding justification of First Appellate Court's decision. (Paras 12 , 26 )
(B) Easement by Prescription - To establish easement by prescription, the claimant must prove continuous and uninterrupted use for the statutory period - The existence of an alternative pathway does not negate the claim if the essentials are proven. (Paras 21 , 25 )
Facts of the case:
The plaintiff, wife of the deceased 1st defendant, claimed a right of easement over a pathway for access to her property, asserting usage for over 50 years. The defendants contended that the pathway did not exist and that any use was permissive. The Trial Court found against the plaintiff, while the First Appellate Court ruled in her favor.
Findings of Court:
The First Appellate Court's finding of easement by prescription was modified, recognizing a right of easement over a pathway of three feet width on the northern boundary of the defendants' property.
Issues: The main issue was whether the First Appellate Court was justified in holding that the pathway existed and that the plaintiff had established a right of way by easement or prescription.
Ratio Decidendi: The court held that the plaintiff failed to prove the existence of the pathway for the statutory period required for easement by prescription, but granted a modified declaration of easement for a pathway of three feet width.
Result: Regular Second Appeal allowed in part.
Certainly. Based on the provided legal document, the key points are as follows:
The case involves a dispute over the existence and rights associated with a pathway (Plaint C schedule pathway) claimed by the plaintiffs as an easement by prescription over the defendants' property. The main issue is whether the pathway has been used continuously and openly for the statutory period of 20 years to establish such a right (!) (!) .
The original ownership of the properties is admitted, but the sale of the plaint B schedule property by the first defendant to the defendants 2 and 3 occurred immediately before the suit was filed. Therefore, as of the filing date, the defendants 2 and 3 are the legal owners of the plaint B schedule property (!) .
The plaintiffs claim that they have been using the pathway for over 50 years for vehicular and pedestrian access to their property, primarily through the plaint C schedule pathway, which they assert is the only means of access. The defendants contest the existence, width, and use of this pathway, alleging that it was created only recently and that any use was permissive, not adverse or continuous enough to establish a prescriptive easement (!) (!) .
The evidence from commission reports indicates that the pathway's width is approximately 30 centimeters, which is insufficient for vehicular passage and only marginal for pedestrian use. The reports also suggest that the pathway is relatively recent, around 10 years old, which is less than the statutory period required to establish prescriptive rights (!) (!) .
The court notes that the plaintiffs' witnesses, including interested parties, provided inconsistent and unconvincing testimony regarding the existence and use of the pathway. The court emphasizes that the use of the pathway was not proven to be continuous, exclusive, or adverse for the statutory period, especially considering the alternative pathways available and the recent formation of the canal road (!) (!) .
The court distinguishes between pedestrian and vehicular use. It concludes that the evidence shows only pedestrian use over the pathway, and the claim for vehicular easement is not substantiated. The court emphasizes that a right for vehicular passage cannot be presumed from pedestrian use alone, especially without proof of continuous, adverse, and exclusive use for the statutory period (!) (!) .
The court recognizes that the first appellate court's decision to grant a broad easement of three meters was not supported by sufficient evidence. Instead, it finds that a declaration of easement by prescription for a narrower pathway of three feet (approximately 0.9 meters) on the immediate southern side of the northern boundary of the plaint B schedule property is justified. This narrower pathway is considered adequate for pedestrian use and more consistent with the evidence (!) (!) .
The court modifies the previous judgment, declaring that the plaintiffs have a right of easement by prescription over a three-foot-wide pathway on the southern side of the northern boundary of the plaint B schedule property. This pathway runs east-west from the eastern canal road to the southeastern side of the plaint A schedule property. It also issues a permanent injunction restraining the defendants from obstructing this pathway (!) .
The court's decision emphasizes that the existence of an alternative pathway and the recent formation of the canal road weaken the plaintiffs' claim for a broader or vehicular easement. The focus is on establishing a limited, pedestrian easement based on actual use and proven continuity over the relevant statutory period (!) (!) .
The appeal is allowed in part, with the judgment and decree of the first appellate court being modified accordingly to reflect the narrower, more supported easement rights and restrictions against obstruction by the defendants (!) .
These points summarize the court's findings, reasoning, and final decision regarding the easement claim based on prescription, emphasizing the importance of continuous, adverse, and open use over the statutory period.
JUDGMENT :
M.A.ABDUL HAKHIM, J.
1.The appellants are the defendants 2 and 3 in the suit. They are husband and wife. The 2nd defendant is the nephew of the 1st defendant. The plaintiff is the wife of the 1st defendant.
2. Plaintiff filed suit for declaration of easement by prescriptionover C schedule pathway and consequential injunction. On account of the objection of non-joinder of parties, the 3rd defendant who is the wife of the 2nd defendant was impleaded in the suit. The 3rd defendant remained exparte.
3. Plaint A schedule property having an extent of 58.5 cents of landand the residential building therein belongs to the plaintiff as per Ext.A1. Plaint B schedule property having an extent of 11.20 Ares of land belongs to the 1st defendant. Plaint B schedule property is situated on the south-eastern side of plaint A schedule property. Canal Road is situated on the eastern side of B schedule property. Plaint C schedule pathway is shown as having a length of 48 meters and 3 meters width situated on the northern extremity of Plaint B schedule property starting from the Canal Road on the eastern side and ending at the south- eastern side of the plaint A schedule property. The suit was filed on 10.07.2002. The 1st defendant had executed Ext.B2 Sale Deed dated 05.07.2002 with respect to plaint B schedule property in favour of the defendants 2 and 3, and thus, they also became parties to the suit.
4. As per the plaint allegations, the residential building in the PlaintA schedule property is having an age of more than 100 years facing towards east. The plaintiff and her predecessors have been using plaint C schedule property for the last more than 50 years for passage including vehicular passage from canal road to Plaint A schedule property. Plaint C schedule pathway is the only means of access to plaint A schedule property. The plaintiff travels through the eastern side of plaint A schedule property towards south from the house and enters plaint C schedule pathway for traveling to the eastern public road which was converted into a canal road about 22 years back. On account of age-related diseases, the plaintiff has been frequently going for treatment in the car through Plaint C schedule property. The 1st defendant is also residing in the house in the plaint A schedule property. He also has been using Plaint C schedule property for access. Though the plaintiff and the 1st defendant have been residing in the same house, they have been remaining in bitter inimical terms. Hence, 1st defendant has been attempting to obstruct the plaint C schedule pathway. He has been attempting to create some documents in favour of the defendants 2 and 3 to defeat the rights of the plaintiff.
5. The 1st defendant filed a Written Statement opposing the suitinter alia prayers, contending, , that there is no pathway through plaint B schedule property. Plaint A schedule property is having access to the PWD road situated on the northern side through a pathway starting from the northern side of plaint A schedule property. The plaintiff is not in need of any other pathway. The canal road on the eastern side of plaint B schedule property came into existence only in the year 1986. Hence the contention of the plaintiff that the plaintiff has been using the pathway through the Plaint B schedule property to access the canal road on the eastern side for the last more than 50 years is incorrect. Even according to the plaintiff, the canal road came into existence about 22 years back, and hence, she could not contend that she has been using pathway through plaint B schedule property for the last more than 50 years. Since the plaintiff is the wife of the 1st defendant, the 1st defendant has permitted the plaintiff to access the Canal Road through the plaint B schedule property for walking and on the basis of the said permission, the plaintiff has been walking through plaint B schedule property for accessing the Canal road on the western side. It will not create an easement by
Easement by prescription requires proof of continuous use for the statutory period; mere permissive use does not establish a right.
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....
Easement rights require clear identification and specific evidence; the absence of a proper survey plan undermines claims for easement by prescription.
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....
'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.
Establishment of easement rights requires explicit documentation, and mere permissive rights do not confer legal easements; plaintiffs failed to prove their claim.
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.
The existence of an alternate way does not negate a party's right to assert an easement by grant under a testamentary disposition.
The court held that the plaintiff did not establish easement by prescription due to insufficient evidence of prior usage and ownership rights over the pathway.
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