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2025 Supreme(Online)(Ker) 14532
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Easwaran S., J
BHASKARAN – Appellant
Versus
PARTHAN – Respondent
RSA 846/2012
SRI.SAJAN VARGHEESE K., SRI.LIJU. M.P, SRI.RAJESH SIVARAMANKUTTY
The right of easement by prescription requires continuous use, and the appellate court's reversal of the trial court's finding was unsupported by evidence.
Headnote:(A) Indian Easement Act, 1882 - Section 15 - Right of easement by prescription - Plaintiff claimed a right to take water through a ditch on defendants' property, asserting established easement rights - Trial court found in favor of the plaintiff, but the appellate court reversed this decision, citing lack of use - Court found the appellate court's reasoning legally unsustainable, emphasizing the necessity of evidence for claims of discontinuation of use. (Paras 4, 10, 12, 13)
(B) Evidence - Appreciation of evidence - The appellate court misread evidence regarding the plaintiff's use of the ditch, leading to a perverse conclusion unsupported by the record. (Paras 11, 12)
Facts of the case:
The plaintiff claimed a right of easement over a ditch for irrigation purposes, which the defendants obstructed. The trial court ruled in favor of the plaintiff, but the appellate court dismissed the suit, claiming the plaintiff had ceased using the ditch.
Findings of Court:
The appellate court's findings were not supported by evidence, and the trial court's ruling was restored.
Issues: The main issue was whether the plaintiff had established a right of easement by prescription under Section 15 of the Easement Act.
Ratio Decidendi: The court held that the appellate court's conclusion was legally unsustainable due to a lack of evidence supporting the claim that the plaintiff had stopped using the ditch.
Result: Appeal allowed.
JUDGMENT
The plaintiff in a suit (O.S. No.323 of 2005 on the files of the Principal Munsiff Court, Palakkad) for mandatory injunction has come up in this appeal aggrieved by the judgment and decree passed by the II Additional District Court, Palakkad in A.S. No.283 of 2008.
2. The brief facts necessary for disposal of the appeal are as follows:
The appellant/plaintiff instituted O.S. No.323 of 2005 before the Munsiff (Principal) Court, Palakkad, claiming that he has got a right of easement by prescription over the plaint B schedule property for taking water into the plaint A schedule property. An extent of 5.54 Acres of paddy land covered by document No.1410/60 of SRO, Palakkad is being used for cultivation of paddy in one portion and as a coconut garden in the remaining portion . The plaintiff made a ditch that starts from the plaint B schedule property for the purpose of flow of water from a river from the northern side of the plaint A schedule property. The plaintiff had obtained sanction from the District Collector in 1971 for using the water from the river for irrigating the coconut garden. The 1st defendant is having a property on the northern side of the ditch shown in the B schedule of the plaint and there is a fence to separate the ditch from the paddy field. There are ridges on both sides of the ditch of the 1st defendant. On 22.2.2005 the defendants made attempts to fill the ditch and caused obstructions to the flow of water. But due to the intervention of the plaintiff , they did not succeed in their attempt. The plaintiff contended that the ditch shown in B schedule property is situated in Resurvey Nos.178/4, 178/3 and 176/6. The portion of the said ridge in resurvey No.178/4 belongs to the plaintiff. It is further contended that the defendant had no right to cause obstructions to the plaintiff from taking water through the ditch passing through resurvey No.178/3. The defendants 1 and 2 entered appearance and filed a written statement opposing the plea of the plaintiff. It is contended that there is no such ditch as alleged by the plaintiff in the suit. It is incorrect to say that the plaintiff had obtained sanction from the District Collector to pump water from the river for irrigating his property. The property shown in the B schedule is part and parcel of the property belonging to the defendants. In fact the plaintiff had approached the defendants to permit him to pump water through the property for irrigating his paddy field and offered that he would supply sufficient water to the defendants. Accordingly, the defendants had allowed the plaintiff to pump water through their properties. The plaintiff demanded huge sum from the defendants for supplying water and the defendants were not ready for the said amount and thus the plaintiff became inimical with the defendants. The plaintiff had no right to take water through the defendants’ property since the plaintiff had not renewed the licence. After filing of the suit, it appears that the defendant had blocked the ditch in the B schedule which necessitated the plaintiff to amend the suit and seek a mandatory injunction directing the defendants to restore the ditch in the B schedule property. On behalf of the plaintiff Exts.A1 to A9 documents were produced before the trial court and PW1 to PW3 were examined. On behalf of the defendants Exts.B1 to B3 were produced and DW1 was examined. An advocate commissioner was appointed for local inspection who submitted Exts.C1 and C2 series of report and sketch.
3. The trial court framed the following issues for consideration.
“ 1. Whether the plaintiff has any right over the “chal” shown in schedule B to the plaint?
2. Whether the plaintiff has any right to lay pipe line through the plaint B schedule property or to draw water through the said property?
3. Whether the plaintiff is entitled to get an injunction as prayed for?
4. Reliefs and costs?”
4. On appreciation of the evidence the trial court found that the plaintiff had established
