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2025 Supreme(Online)(KER) 10780
IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.A. ABDUL HAKHIM, J
RAVI S/O LATE.KUNJUPANIKEN, KANNIMEL PARAMBIL HOUSE – Appellant
Versus
LEKSHMI (DIED), D/O.LATE NANGELI – Respondent
RSA NO. 1262 OF 2011
For the Appellants/Petitioners: SRI.M.V.THAMBAN, SRI.B.BIPIN, SRI.R.REJI, SMT.REVATHY P.NAIR, SMT.THARA THAMBAN
For the Respondents: SRI P.MARTIN JOSE, SRI P.PRIJITH, SRI SIJU KAMALASANAN, SRI. ANEESH JAMES, SMT. DHANYA CHANDRAN
The court clarified that permissive use does not establish easement by prescription and emphasized the necessity of evidence for continuous usage over the statutory period.
Headnote:(A) Indian Easement Act - Section 15 - Right of easement by prescription - Plaintiff claimed easement over pathway for over 50 years, but defendants contested existence and usage - Trial Court dismissed suit, but First Appellate Court allowed it, leading to second appeal - Court held that evidence did not support vehicular access claim and found that pathway width was insufficient for vehicular passage, thus modifying the decree in favor of plaintiff for pedestrian access only. (Paras 26, 27)
(B) Evidence - The court emphasized that mere permissive use does not establish easement by prescription and the distinction between pedestrian and vehicular access must be clear. (Paras 24, 25)
Facts of the case:
The plaintiff sought a declaration of easement over a pathway used for access to her property, asserting long-term use. The defendants challenged the claim, stating that the pathway did not exist as claimed.
Findings of Court:
The court found insufficient evidence to support the claim of vehicular access and limited the easement to pedestrian use only, establishing a pathway width of three feet.
Issues: The main issue was whether the plaintiff had established a right of way by easement or prescription under the Indian Easement Act.
Ratio Decidendi: The court ruled that the evidence did not substantiate the claim for vehicular passage and clarified the difference between pedestrian and vehicular easement rights, emphasizing the necessity of proving continuous usage for the statutory period.
Result: The Regular Second Appeal is allowed in part, modifying the First Appellate Court's decree.
| Table of Content |
|---|
| 1. plaintiff seeks easement over pathway used for access. (Para 1 , 2 , 3) |
| 2. defendants contest existence and usage of the pathway. (Para 4 , 5 , 6) |
| 3. court emphasizes distinction between permissive use and easement. (Para 15 , 16) |
| 4. court assesses evidence regarding pathway width and usage. (Para 17 , 18 , 19) |
| 5. court concludes insufficient evidence for vehicular access. (Para 20 , 21 , 22 , 23) |
| 6. court modifies decree to allow pedestrian access only. (Para 24 , 25) |
| 7. final judgment allows easement for pedestrian use. (Para 26 , 27) |
JUDGMENT
The appellants are the defendants 2 and 3 in the suit. They are
1.
husband and wife. The 2nd defendant is the nephew of the 1st defendant. The plaintiff is the wife of the 1st defendant.
Plaintiff filed suit for declaration of easement by prescription
2.
over 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.
Plaint A schedule property having an extent of 58.5 cents of land
3.
and 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.
As per the plaint allegations, the residential building in the Plaint
4.
A 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.
The 1st defendant filed a Written Statement opposing the suit
5.
inter 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
