Legal precedents must be considered in determining the 'user as of right' necessary for declaring a prescriptive easement.

JUDGMENT

The defendants came up with these appeals against the decree and judgment of both the trial court and the first appellate court by which a decree for declaration of prescriptive right of easement over the B schedule property was granted besides the grant of a prohibitory injunction.

2. RSA No.848 of 2005 is against the concurrent finding of decree and judgment rendered in O.S.No.163 of 1989 and the first appeal there under. The other appeal in RSA No.850 of 2005 is against the decree and judgment in O.S.No.216 of 1989 and the first appeal there under. The leading case is suit in O.S.No.163 of 1989. It is filed for declaration of easement right and for perpetual injunction. It was granted by both the courts below. The other suit was filed by the defendants against the plaintiff for a grant of permanent prohibitory injunction against trespass. That suit was dismissed by both the courts below, against which the defendant in the leading case, i.e. O.S.No.163 of 1989 came up with these two appeals.

3. B schedule is the way in dispute. Two set of commissioners were deputed, who in turn filed the report and rough sketch. Ext.C1 is the first rough sketch prepared and Ext.C3 is the second rough sketch prepared. The commissioner reported B schedule as a ridge starting from southern public road leading towards north. There is an opening at the entrance of A schedule property i.e southern boundary of A schedule property. The southern boundary bounded by a compound wall with the said opening. The commissioner in Ext.C2 reports that the property of the defendant lying on a lower level along with A schedule property from that of the southern road. The ridge is also reported as having two feet width. It was also reported by the commissioner that the ridge found to be a new one which was admitted by the plaintiff. According to the plaintiff it was restored just few days before the visit of the commissioner as the earlier ridge in existence was demolished.

4. Apart from the substantial questions raised at the time of admission, the following questions would also came up for consideration:

(i) What would be the nature of the user of a ridge lying in between the paddy field intended to regulate field to field irrigation, as means of access and whether it is amounts to 'user as of right' ?

(ii) Is there any difference in the legal position when the ridge lies on the side of paddy when the other side reported as a reclaimed land ?

(iii) What actually constitute an 'user as of right' so as to bring up a case of acquisition of prescriptive easement ?

5. Both the trial court and the first appellate court decreed the suit in terms of the plaint declaring the prescriptive right of easement over B schedule way and by granting permanent prohibitory injunction. But the legal position settled by this court inCherootty @ Balan v. Velayudhan Nair ( 1998 (1) KLJ 479 ) regarding the user of a ridge between the paddy field or ridge lying adjoining to the paddy field neither considered nor adjudicated by both the courts below. The question user 'as of right' should be addressed necessarily based on the decision rendered by this court in Cherootty's case. The legal position was subsequently reiterated in several decision of this court including the decision in RSA No.626/2008 dated 11.1.2010 drawn in K.Sarojini vs. Poondath Gopalakrishnan and SA No.425/2014 dated 3.6.2014 drawn inPaulson vs Rajesh and another. The omission to consider the above said legal position based on the factual issue involved in the case is fatal to the decision rendered by both the trial court and first appellate court. Ext.C3 rough sketch revealed the landed property lying on either side of the way partly as paddy field partly as 'kuni' which stands for partly reclaimed paddy field. The above said question requires consideration by the first appellate court for that purpose, the decree and judgment of trial court and the first appellate court are hereby set aside. Appeal is allowed in