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2023 Supreme(Online)(KER) 2839
HIGH COURT OF KERALA
A. BADHARUDEEN, J
MERCY – Appellant
Versus
AGNUS MARIA E.J. – Respondent
RSA 605/2023
PAUL K.VARGHESE
To establish a right of easement by prescription, the claimant must prove continuous, peaceful use for twenty years without interruption, supported by specific pleadings.
Headnote:
Easement - Right of Easement by Prescription - Code of Civil Procedure Section 100, Order XLII Rule 1 - The court affirmed the necessity of specific pleadings and proof for establishing a right of easement by prescription and emphasized the importance of uninterrupted and peaceful enjoyment for a designated period.
Fact of the Case:
The plaintiff claimed a right of easement by prescription over a pathway, which was contested by the defendant, who argued that the pathway was not solely for the plaintiff's use and had been obstructed. The plaintiff contended that the pathway was essential for access to her property.
Finding of the Court:
The court found that the plaintiff had adequately pleaded and proven her claim of easement by prescription, based on the ongoing and peaceful use of the pathway for over 20 years, despite the defendant's objections.
Issues: Whether the plaintiff sufficiently established a right of easement by prescription over the contested pathway and if the appeal for the second time was maintainable under the provisions of the Code of Civil Procedure.
Ratio Decidendi: The court stressed that to establish a right of easement by prescription, the plaintiff must provide specific pleadings and prove consistent, peaceful enjoyment without interruption for the required period, which was satisfied in this case.
Final Decision: The appeal was dismissed without being admitted.
J U D G M E N T
This Second Appeal has been filed by the 1st defendant in
O.S.No.258/2016 on the files of the Munsiff Court, Kochi, challenging the decree and judgment in the above Suit dated 16.03.2020, confirmed by the Sub Court, Kochi in A.S.No.38/2020 vide decree and judgment dated 30.01.2023, under Order XLII
Rule 1 read with Section 100 of the Code of Civil Procedure .
2. Heard the learned counsel for the appellant/1st defendant on admission.
3. Perused the lower court records.
4. I shall refer the parties in this appeal with reference to their status before the trial court, as `plaintiff’ and `defendant’
hereafter for easy reference.
5. In this matter, the 1st defendant is the appellant herein.
The plaintiff is the 1st respondent and 2nd defendant is the 2nd respondent herein.
6. The plaintiff instituted the suit asserting right of easement by prescription over plaint B schedule pathway having a length of 66 links and width of 6 links, which is on the eastern side of the plaint schedule property having access to the plaint A schedule property, originally purchased by the plaintiff as per sale deed No.1778/1995 of S.R.O, Kochi which do form part of partition deed No.2648/1986 of S.R.O, Kochi. According to the plaintiff, plaint B schedule is the only way available to plaint A schedule property, on which the plaintiff perfected right of easement by prescription. When the defendant attempted to obstruct its use, for declaration of the said right, prohibitory injunction was sought for.
7. The 1st defendant entered appearance and filed written statement, though the 2nd defendant remained exparte. The contention raised by the 1st defendant in the written statement is that plaint A schedule property is a plot lying adjacent to the property belonging to the husband of the plaintiff. Thereafter, as per the desire of the plaintiff’s husband, 11 cents out of 11 ½ cents land belonged to the defendants and their mother was sold in favour of the plaintiff after retaining half cent to provide a pathway of 6 links for the ingress and egress to the property of Rosakutty w/o Rocky, situated on the northern side of plaint A schedule. According to the defendants, B schedule pathway is provided for the ingress and egress towards property of V.R. Charly and V.R.Antony, s/o late Rocky and they have been using the same from 1995 onwards. Therefore, the right claimed by the plaintiff over B schedule was disputed.
8. The trial court ventured the matter. PWs 1 to 3 were examined and Exts.A1 to A4 were marked on the side of the plaintiff. DW1 was examined on the side of the defendants. Ext.C1 commission report and Ext.C1(a) rough sketch also were marked as court's exhibits.
9. On analysis of the evidence and after hearing the contesting parties, the learned Munsiff granted decree declaring right of easement by prescription over B schedule pathway in favour of the plaintiff and thereby the defendants, their men and agents were restrained by a decree of permanent prohibitory injunction from causing any sort of obstruction to the plaint B schedule pathway. Aggrieved by the verdict of the trial court, the 1st defendant filed appeal before the Sub Court, Kochi and the learned Sub Judge dismissed the appeal.
10. While assailing the concurrent verdicts of the trial court as well as the appellate court, the learned counsel for the 1st defendant argued at length to convince this Court that no sufficient pleadings incorporated in the plaint to claim right of easement by prescription and the evidence available also do not suggest establishment of the said right. Therefore, the courts below went wrong in granting the relief sought for and the same would require interference by admitting the Second Appeal. It is argued by the learned counsel for the 1st defendant that mere user of the way by the plaintiff in common with general public will not confer on them right of easement by prescription and in this regard a decision of this Court reported in [2020 (6) KHC 343 : 2020
