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2025 Supreme(Online)(Ker) 68232
IN THE HIGH COURT OF KERALA AT ERNAKULAM
EASWARAN S., J
K.JACOB (APPACHAN) – Appellant
Versus
ANNIE THOMAS – Respondent
RSA NO. 721 OF 2022|RSA NO. 705 OF 2022
For the Appellants/Petitioners: Sri.T.Krishnanunni (SR.), Sri.Vinod Ravindranath, Smt.M.R.Mini, Sri.M.Devesh, Smt.Meena.A, Sri.Ashwin Sathyanath, Shri.Anish Antony Anathazhath, Shri.Thareeq Anver
For the Respondents: Sri.S.Vinod Bhat, Kum.Anagha Lakshmy Raman, Smt.V.Namitha, Smt.Greeshma Chandrika.R, Smt.Gitanjali Sadan Pillai
In easement claims, plaintiffs must provide clear evidence of established usage and specific dates to support their claims.
Headnote:(A) Easement Act, 1882 - Sections 4 and 15 - Claim of easement by prescription - The plaintiff must establish precise pleadings regarding the exact date of pathway enjoyment for easement claim validity - Concurrent findings from trial court concerning the non-existence of claimed pathway upheld. (Paras 9-12)
(B) Appeals - The court noted that the concurrent findings of the lower courts were not distorted, and the appellant failed to prove the existence of the claimed pathway as an easement. (Paras 14-17)
Facts of the case:
The appeals arise from two suits; the plaintiff sought to establish a right of easement for accessing his property through a claimed pathway, while the defendant contended that the pathway did not exist.
Findings of Court:
The plaintiff could not establish the existence of the pathway, and hence his claim for easement was dismissed as non-credible.
Issues: The necessity of precise pleadings in a claim of easement by prescription, including dates and extent of usage, was central.
Ratio Decidendi: The court held that establishing a prescriptive right requires specificity regarding how long the plaintiff has used the path, and the evidence submitted did not support such specificity.
Result: Appeals dismissed.
| Table of Content |
|---|
| 1. overview of the appeals and the claim for easement. (Para 1 , 2) |
| 2. court's analysis of evidence and prior judicial findings. (Para 3 , 4 , 7 , 8 , 10 , 11 , 13 , 15) |
| 3. plaintiff's obligation to prove usage and pathway existence. (Para 5 , 6) |
| 4. legal requirements for establishing easement claims. (Para 9 , 12) |
| 5. summary of the verdict and conclusion of lack of merit. (Para 16 , 17) |
JUDGMENT
These two appeals arise out of the common judgment in O.S.Nos.309/2015 and 356/2015.
2. The brief facts necessary for the disposal of the appeals are as follows:
2.1. The appellant in these two appeals, i.e. Sri.K.Jacob, is the plaintiff in O.S.No.356/2015 and the defendant in O.S.No.309/2015. The plaintiff in O.S.No.309/2015 sought a decree of injunction against the appellant from trespassing into the plaint schedule property, cutting a road through the plaint schedule property and committing any waste. On receipt of summons in the said suit, the appellant instituted O.S.No.356/2015, by which he claimed a right of easement by prescription over B schedule property having a measurement of 10 feet width and a total length of 22 metres. According to the appellant/plaintiff in O.S. No. 356/2015, he has been using the plaint B schedule pathway (mud road) for the past 50 years, and the same was used by his father for carrying out agricultural activities. It is further contended that the mud road was laid by the plaintiff’s father for agricultural purposes. Thus he claimed that he has a right of easement by prescription to use the said pathway for the ingress and egress to the plaint A schedule property including a vehicular traffic. The plaintiff in O.S.No.309/2015 resisted the said plea on the ground that, there is no pathway as alleged by the appellant in the plaint B schedule property. It was further contended that the plaintiff in O.S.No.309/2015 had apprehended that the appellant would cut open a pathway to suit his convenience and thus, O.S.No.309/2015 was instituted and an order of injunction was obtained. Therefore, it is a case where a total denial of the existence of B schedule pathway as claimed in O.S.No.356/2015 was raised.
2.2. Both the suits were tried together. Documents were marked in O.S.No.356/2015, which was taken as the lead case. On behalf of the plaintiff, Exts.A1 to A3 documents were produced and PW1 to PW4 were examined and on behalf of the defendants, Exts.B1 and B2 documents were produced and DW1 was examined. Exts.C1 to C4 are the reports of the Advocate Commissioners. On appreciation of the oral and documentary evidence, the Trial Court came to the conclusion that the Advocate Commissioners appointed by the court below could not identify the existence of the B schedule property except a foot track as seen by the Commissioner in Ext.C2 plan and therefore, O.S.No.309/2015 was decreed in part restraining the appellant/plaintiff in O.S.No.356/2015 from trespassing into the plain schedule property except for the purpose of using the foot track. O.S.No.356/2015 was dismissed. Aggrieved, the appellant preferred A.S.Nos.57/2017 and 58/2017 before the Principal Sub Court, Thalassery. The First Appellate Court by judgment dated 15.07.2022 dismissed both the appeals and hence, the appellant has preferred these two second appeals.
3. Heard, Sri.T.Krishnanunni – learned Senior Counsel, assisted by Smt.M.R.Mini, appearing for the appellant and Sri.S.Vinod Bhat – learned counsel appearing for the respondents.
4. This Court by order dated 20.01.2023 had issued notice on admission, but, however, the appeals remained on the files of this Court without admission and hence today listed for further consideration.
5. The learned counsel appearing for the appellant would contend that, both the courts below erred egregiously in rejecting the claim of the appellant on the ground that the pathway in question has not been identified. According to him, substantial questions of law as framed in the memorandum of appeal arises for consid
