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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Sreekumar G, J
SETHULAKSHMY AGED 68 – Appellant
Versus
SAROJINI – Respondent
Regular Second Appeal | RSA No.1334/2011
Cross-Examination of the Defendant
You have claimed that there is an existing pathway on your property. Can you produce any documentary evidence, such as a survey plan or property map, that clearly shows the existence of this pathway? (!)
Are you able to point out the exact location of this pathway on your property? Would you agree that if no physical or documentary evidence can be produced, the existence of such a pathway remains unsubstantiated? (!)
Have you personally observed or used this pathway? If so, can you specify the duration and frequency of its use? (!)
Can you confirm that there are no physical signs, such as a cleared track or worn-out surface, indicating the presence of a pathway at the location you claim? (!)
Have any neighbors or other third parties ever recognized or identified this pathway in their property records or during their use? (!)
Are you aware that the petitioner has contested the existence of this pathway? Have you reviewed any survey or expert reports that support the petitioner's claim that no such pathway exists? (!)
Do you have any photographs, plans, or other evidence to substantiate your claim that a pathway exists at the location you describe? (!)
Is it correct to say that your claim of an existing pathway is based solely on your personal assertion without any supporting evidence? (!)
Have you ever acknowledged, in writing or verbally, that there is no designated or established pathway on your property? (!)
Do you agree that if no physical or documentary evidence of the pathway can be produced, the claim of its existence remains unproven? (!)
Are you willing to allow a surveyor or court-appointed officer to inspect the property to verify the existence or non-existence of the pathway? (!)
In light of the absence of concrete evidence, do you still maintain that a pathway exists, or do you concede that the claim is unsubstantiated? (!)
Thank you.
| Table of Content |
|---|
| 1. right of servient owner to seek shifting of easment. (Para 1) |
| 2. plaintiffs, as servient owners, challenged the existing easement. (Para 2 , 3) |
| 3. contentions of the defendants regarding the shifting of pathway. (Para 4 , 5 , 6) |
| 4. court's approach to hearing the appeal. (Para 7 , 8) |
| 5. interpretation of sections 22 and 23 of the easement act. (Para 9 , 10 , 11 , 12) |
| 6. permitting shifting of easement under conditions without detriment. (Para 13 , 14) |
| 7. possibility of shifting kudikidappu under relevant land reform acts. (Para 15) |
| 8. easement act remedies and implications. (Para 16 , 17) |
| 9. court's final decision on shifting easement. (Para 18) |
| 10. result of the appeal and remand for fresh consideration. (Para 19) |
JUDGMENT
RSA No.1334/2011
1. The question involved in this Regular Second Appeal is whether the Servient owner has right to seek for shifting of easement to another part of the Servient Heritage for the convenient use of the Servient Heritage, in view of Section 22 of the Indian Easement Act, 1882 .
2. The appellant is the 1st plaintiff in the suit. The second plaintiff is her son. They are the owners of the Servient Heritage. The defendants are the owners of Dominant Heritage, having right of way through Servient Heritage from the main road situated on the eastern boundary of Servient Heritage. The Dominant heritage is having an extent of 10 cents which is situated in the middle of Servient Heritage having an extent of 1.15 acres. Dominant Heritage is surrounded by Servient Heritage on its eastern, western and southern sides. Servient Heritage is assigned to the predecessor of the defendants - Kurumba from the plaintiffs by way of Kudikdappu. Excluding Dominant Heritage, the Servient Heritage has 1.05 acres of land, which is the plaint A schedule property. The way to the Dominant Heritage is through the middle of the eastern part of the Servient Heritage. According to the plaintiffs, the width of the way is three feet, and according to the defendants, it is four feet. The plaintiffs filed the suit to shift the way to the northern extremity of the Servient Heritage. A Way having a width of 3 feet in the northern extremity of the Servient Heritage is included in the Plaint B Schedule.
3. The suit was one for declaration and permanent prohibitory injunction and compensation. The prayers are to declare that plaint B schedule property is to be used by the defendants for their ingress and egress into their property, to restrain the defendants from trespassing into plaint A schedule property and committing any act of waste therein and to direct the defendants to pay Rs.500/- by way of damages.
4. The Defendants contended that the plaintiffs have no right to shift the pathway into the plaint B schedule pathway.
5. The Trial Court dismissed the suit finding that the plaintiffs have no right to shift the existing pathway into any other pathway because the defendants have got easement right of way through the existing pathway as per S.13 of the Easement Act. The prohibitory injunction and the damages sought for were denied, finding that there is no proof in support of the same from the part of the plaintiffs.
6. The plaintiffs filed an Appeal before the First Appellate Court challenging the judgment and decree of the Trial Court. The First Appellate Court dismissed the appeal confirming the judgment and decree of the Trial Court finding that plaintiff do not have any right to shift the existing pathway to plaint B schedule pathway which is prohibited by S.23 of the Easement Act.
7. This Court had issued notice before admission on 24.02.2012 to the respondents. In spite of serving notice, the respondents did not appear. Thereafter, this court considered the matter for admission on 10.10.2024 and this Court admitted the Regular Second Appeal formulating the Substantial Question of Law. Since the appeal is of the year 2011, notice by Special Messenger was ordered to respondents 1 to 7 dispensing notice to the 8th responden
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