IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942 RSA.No.1272 OF 2011 AGAINST THE JUDGMENT AND DECREE DATED 01-03-2011 IN AS 77/2008 OF SUB COURT, CHENGANNUR AGAINST THE JUDGMENT AND DECREE DATED 21-08-2004 IN OS 151/2002 OF MUNSIFF COURT, CHENGANNUR APPELLANT IN R.S.A.- RESPONDENT IN A.S.- DEFENDANT IN SUIT:

TOM, KOCHUPUTHENPURACKAL VEETTIL, PRAMATTAKKARA MURI, PANDANADU VILLAGE, CHENGANNUR TALUK, REPRESENTED BY HIS POWER-OF-, ATTORNEY HOLDER M.K.MAMMEN, S/O.VARGHESE MAMMEN, RESIDING AT MOOLAYIL HOUSE, ANGADICAL, CHENGANNUR VILLAGE, CHENGANNUR TALUK.

BY ADVS.

SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.B.SUBRAMANYAN RESPONDENT IN R.S.A- APPELLANT IN A.S.-PLAINTIFF IN SUIT:

SARAMMA JOHN, THATTARUZHATHIL VEETTIL, UMAYATTUKARA MURI, THIRUVANVANDOOR VILLAGE, CHENGANNUR TALUK.

PIN-689 106, THIRUVANVANDOOR PO, R1 BY ADVS. SRI.SAJJU.S SRI.K.SHAJ THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

Whether passing over through a paddy field would constitute user 'as of right' for the purpose of acquisition of prescriptive right, whether an inchoate right would constitute 'a right enforceable under law', what would be the legal position if it is at the verge of ripening into an enforceable right and whether the appellate court is justified in granting a decree of declaration of prescriptive right of easement are the questions came up for consideration.

2. The dispute is pertaining to a way claimed over item No.3 property. Admittedly, it was obtained by the defendant in the year 2000 and 2002 under Exts.B4 and B3 documents. Item No.1 is the property of plaintiff obtained in the year 1984 under Exts.A3 and A4. At that time it was a paddy field. It is in the year 1985, it was reclaimed into a garden land and a building was constructed in the year 1985 and completed in the year 1987. Prior to that, the properties were lying as paddy fields. The suit was filed on 18.5.2002. User of paddy field or crossing over unfenced paddy field either through its ridges or otherwise will not constitute user 'as of right' and as such the user of the paddy field prior to its reclamation can only be a mere user and not a user 'as of right'. The required period of twenty years not satisfied as on the date of suit from the year on which it was reclaimed as a garden land. Hence the claim of acquisition of prescriptive right will not stand. The decree and judgment of the First Appellate Court hence cannot be sustained.

3. Some other supporting factors also brought to the notice of this court by the defendant/appellant that the building constructed in the property is not facing towards item No.3 property, but facing towards east wherein there is an alternative way which was noticed by the commissioner who visited the property. It starts from Kallisseri-Prayitti PWD road on its northern side and proceeds towards north through the western side of item No.2 property. Then takes a deviation towards east and another deviation towards property of plaintiff, the item No.1 till it reaches that property.

The appeal is allowed. The decree and judgment of the first appellate court is set aside. The suit is dismissed. No costs.

Sd/-

P.SOMARAJAN JUDGE msp //TRUE COPY//

P.A. TO JUDGE