Easement rights require precise pleadings and evidence demonstrating established rights; claims not adequately presented at lower levels cannot succeed in appeals.

JUDGMENT

The plaintiff in O.S.No.790 of 2015 on the file of the Additional Munsiff's Court, Alappuzha is the appellant. The defendants are the respondents. The appellant instituted the suit seeking a decree of permanent prohibitory injunction restraining the defendants from constructing compound wall on the Northern boundary of plaint schedule item No.2 property, blocking the passage and vehicular traffic of the plaintiff through the plaint schedule item No.3 property, or obstructing the same in any manner. According to the plaintiff, the plaintiff is the owner in possession of plaint item No.1 property pursuant to the settlement deed No.948/2010 of Alappuzha Sub Registrar's Office. The plaint schedule item No.2 property is admittedly the property owned and possessed by the defendants 1 and 2. The 1st defendant is the Khadi and Village Industries Board and the 2nd defendant is its Project Officer respectively. The plaint item No.3 is described as a way available through the plaint schedule item No.2 property having a width of 3.5 metres and length of 40 metres starting from the gate situated in front of the residential building of the plaintiff on the Northern boundary wall of plaint item No.1 property. The plaintiff asserted that the plaint schedule item No.3 pathway is the only way available to the plaintiff to reach Punnapra Market Junction-Beach Road and the plaintiff has perfected right of easement by prescription over the same. Apprehending obstruction of the way, the plaintiff has filed the suit.

2. The defendants 1 and 2 entered appearance and filed written statement admitting title and possession of the plaintiff over plaint schedule item No.1 property. However, the plaint schedule item No.3 pathway described in the plaint through plaint item No.2 property is denied. They have contended that they had constructed a road through plaint item No.2 property for transporting raw materials and finished goods from the Khadi Unit in the plaint schedule item No.2 property. They have further contended that the plaintiff has an alternative pathway for ingress and egress and this suit is experimental in nature.

3. During the trial, PWs.1 and 2 were examined on plaintiff's side and marked Exts.A1 to A4. Ext.B1 was marked on the side of the defendant. Ext.C1 series were marked as Court Exhibits.

4. The learned Munsiff, on the evidence of PW1, PW2, Exts.A1 to A4 and Ext.C1, rejected the case of the appellant that plaint item No.3 schedule property does not come within the purview of easement right as contemplated under Section 15 of the Easements Act and the plaintiff has failed to prove the right claimed by him. The suit was therefore dismissed. The appellant challenged the decree and judgment before the District Court, Alappuzha in A.S.No.35/2019. The learned District Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in this R.S.A.

5. Heard Sri.S.Sanal Kumar, the learned counsel for the appellant and Sri.N.Rajagopalan Nair, the learned Standing Counsel for the respondents.

6. The learned counsel for the appellant submitted that the existence of plaint schedule item No.3 pathway has been established as per Ext.B1 deed supported by the oral evidence of PWs.1 and 2. It is contended that the plaint schedule item No.3 pathway is the only pathway to the house of the plaintiff in the plaint schedule item No.1 property. It is further argued that even if no right of easement by prescription is proved, the existence of a pathway and its user as a matter of right for a long period is sufficient to invoke the principle of doctrine of lost grant in this case. Relying onSecretary of State for India in Council v. Maharaja of Bobbili [Laws (PVC) 1919 7 154 Privy Council],Raja Braja Sundar Deb & another v. Moni Behara and others [AIR (38) 1951 SC 247], Braja Kishore Jagdev v. Lingraj Samantaray & Others [ (2000) 6 SCC 540 ] andVarghese v. Jose Mathew [ 2014 (3) KLT 1065 ]