IMPORTANT POINT
Right of easement by prescription – When a material fact is suppressed, same would disentitle relief of equitable or discretionary relief.

JUDGMENT

This regular second appeal has been filed under order XLII Rule 1 read with Section 100 of the Code of Civil Procedure (“CPC” hereinafter) challenging the decree and judgment in A.S. No.40 of 2021 dated 19.09.2023 on the files of the Court of the IV Additional District Judge, Thrissur arose from decree and judgment in O.S. No.8256 of 2015 dated 30.03.2021 on the files of the Principal Munsiff Court, Thrissur. The appellant herein is the plaintiff and the respondent is the defendant in the above suit.

2. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondent. Perused the relevant materials and the verdicts under challenge.

3. Parties in this appeal shall be referred as “plaintiff” and “defendant” with reference to their status before the trial court.

4. On hearing both sides this appeal stands admitted by formulating the following substantial questions of law:—

1. What are the essentials to establish right of easement by prescription as provided under Section 15 of the Indian Easements Act, 1882?

2. Whether the trial court and the first Appellate Court justified in finding suppression of material fact as one among the reasons for denying the right of easement by prescription claimed by the plaintiff, over the plaint B schedule way?

5. In this matter, the plaintiff instituted the suit contending that plaint A schedule property was obtained by the plaintiff by virtue of Settlement Deed No.1441/2013 from his mother Gouri. According to the plaintiff, plaint B schedule way available to the plaintiff has been running through plaint C schedule property owned by the defendant, having a width of 3 feet. According to the plaintiff, the way has been in existence for the last 30 years and from 09.02.1990, the plaintiff and his predecessors have been using plaint B schedule way openly, peaceably, without interruption and as of right. Since, the plaintiff apprehended obstruction of the plaint B schedule way, the present suit for prohibitory injunction was pressed into.

6. The defendant filed written statement and resisted the suit. It was contended inter alia that no way is available as plaint B schedule and the plaintiff or his predecessors never used the said way. In the title deed in respect of plaint A schedule property, northern boundary is mentioned as a private way, but in the plaint that has been deliberately suppressed. Therefore, the suit would fail.

7. The trial court recorded evidence and tried the matter after addressing rival contentions. PWs 1 to 3 examined and Exts. A1 to A5 marked on the side of the plaintiff. DW1 examined and Exts.B1 to B7 and B9 marked on the side of the defendant. Exts.C1 and C2 series were also marked.

8. Finally, the trial court dismissed the suit on the finding that, even though the existence of an alternative way did not affect the claim of easement by prescription, a way when provided in Ext.A3, the title deed of the wife of the plaintiff and non mentioning of the said available way is a material suppression, which would disentitle the relief claimed by the plaintiff. It was also found by the trial court that the plaintiff not established the use of plaint B schedule with essential ingredients to perfect easement by prescription, since apart from PW3, nobody was examined to prove the said use before 2013 (prior to the purchase of the property by the plaintiff and his wife). Regarding the evidence of PW3, the trial court found that since, PW3 though supported existence of plaint B schedule way, he pleaded ignorance about several vital aspects, which would have easily answered, if he was familiar to the property and plaint B schedule way as stated by him in his chief affidavit.

9. Though, appeal was filed before the Appellate Court, vide A.S. No.40/2021, the learned District Judge confirmed the finding of the trial court and dismissed the appeal.

10. While assailing the concurrent verdicts, it is submitted by the learned counsel for the plain