Easement claims require accurate pleadings; courts must allow amendments that aid in justice.

JUDGMENT

The plaintiff in a suit for injunction is before this Court aggrieved by the reversal of the judgment and decree in O.S.No.242/2007 of the Munsiff Court, Wadakanchery, by the District Court, Thrissur in A.S.No.263/2009.

2. The brief facts necessary for the disposal of the appeal are as follows:

2.1. The plaintiff claimed a right of easement by prescription and necessity over B schedule pathway having a length of 250 metres and a width of 3 metres. The plaintiff contended that A schedule property is having an extent of 152 cents and the B schedule pathway passes through the southern side of the plaint A schedule property towards west and that he is using this pathway for accessing A schedule property. Though easement by prescription and necessity were claimed, the plea of necessity was disowned. In order to identify the pathway in question, the plaintiff took out an Advocate Commissioner who filed a report. Once the report was filed, the plaintiff noticed that there was discrepancy in the extent of property described under plaint B schedule and therefore, wanted to incorporate the correct details of B schedule pathway by seeking an amendment to the description of B schedule pathway by I.A.No.1121/2009. Since the defendants opposed the same, the trial court dismissed the application, but nevertheless, based on the evidence adduced, the trial court found the existence of the B schedule pathway though not to the extent as prescribed in the plaint. Finding that there is no contra-evidence to disprove the claim of easement by prescription, the trial court decreed the suit.

2.2. Aggrieved, the defendants preferred A.S.No.

263/2009 before the District Court, Thrissur. Before the first appellate court, the reversal of the judgment was sought for on the grounds that B schedule pathway is not in existence and that the description is improper and further that the claim of easement by prescription is not properly proved. The first appellate court found that the plaintiff did not have a case with regard to the title of the B schedule pathway and further found that the existence of plaint B schedule pathway has not been proved by the plaintiff, ignoring the fact that an amendment application was dismissed by the trial court. Accordingly, the judgment was reversed and the suit was dismissed and hence, the present appeal.

3. On 12.07.2011, this Court while admitting the appeal, framed the following substantial questions of law:

1) When I.A.1121 of 2009 was filed by the appellant under Order VI Rule 17 of Code of Civil Procedure, to amend the plaint incorporating the correct description of the plaint B schedule way, in accordance with description of the way in Ext.C1 and C1(a) report and plan, submitted by the Commissioner, was the trial court justified in dismissing the application on the ground of delay, when interests of justice warrants proper description of the way.

2) When the pleading and the evidence establish the ingredients of easement of prescription, whether first appellate court was justified in reversing the decree on the ground that description of the plaint B schedule property does not tally with the way in Ext.C1(a) plan, ignoring the fact that an application for amendment was filed to amend the description of the plaint B schedule way, though it was dismissed.

4. Heard Adv.A.Balagopalan – learned counsel appearing for the appellant and Adv.Santhosh P.Poduval –

learned counsel appearing for the respondents.

5. Adv.A.Balagopalan - learned counsel appearing for the appellant, pointed out that, if the first appellate court was of the view that