Prescriptive easement requires proof of 20-year uninterrupted open use; prior granted pathway claim undermines new assertion.

J U D G M E N T

The 1st plaintiff in OS No.257/2004 on the files of the Principal Munsiff’s Court, Kasaragod, a suit for injunction, has come up in the present second appeal, aggrieved by the concurrent findings rendered against him by the Additional District Court (Adhoc-II), Kasaragod in AS No.100/2008.

2. The facts in brief are as follows:

The suit was instituted by the plaintiffs claiming that the plaint 'A' and 'B' schedule properties originally belonged to a Hindu Undivided Family of which the plaintiffs and the defendants are the members. As per the registered partition in between the members of the said family on 31.10.1957, 'A' schedule properties, among other items, were allotted to the branch of the 1st plaintiff and his late brother Madhava Bhat and their ancestors, and they were put in possession of the branch of the plaintiffs. After the death of the other members of the branch, the plaintiffs continued to be in possession and enjoyment of the plaint 'A' schedule (‘A’ share in the partition deed) property. An eye-sketch is attached to the plaint. Item No.1 of ‘A’ schedule contains the house constructed by the father and the grandfather of the 1st plaintiff. After registration of the partition deed and allotment of ‘A’ share, the house was shifted in item No.1 of ‘A’ schedule. Item No.2 of ‘A’ schedule contains a ‘Daivasthanam’ (H1) and ‘Nandadeepam’ is to be lit every day and was lit prior to the partition and till Vishu, 1958. Item No.2 also contains paddy fields. Plaint 'B' schedule, among other items, was allotted to the branch of the defendants as share 'E' of the said partition deed and they are in possession of the same, subject to the right of passage for the plaintiffs. The pathway marked as ‘P’ in the eye-sketch has been used by the plaintiffs and their predecessors openly, peaceably and continuously as of right and as an easement, in open assertion of title since Vishu 1958 till 4.7.2004, when there was an obstruction. Hence, the present suit. The defendants resisted the suit by contending that the plaintiffs have no right over the pathway and that its description itself is improper. The averments regarding the existence of the house in item No.1 of ‘A’ schedule and its construction and shifting were denied. They also denied the contention that the allotment of 'B' schedule property to them is subject to the right of passage for the plaintiffs. They denied that the plaintiffs had acquired a prescriptive right over the pathway. They also denied the contention of the plaintiffs that 'P1' pathway is inconvenient for the plaintiffs. It was further pointed out that there is yet another pathway for the plaintiffs on the southern side of RS No.497/6 connecting 'P2' through RS No.497/7, and this pathway was involved in OS No.503/84 on the files of Munsiff’s Court, Kasaragod. The said pathway is even now used by the plaintiffs, and the said fact is suppressed in the plaint. On behalf of the plaintiffs, Exts.A1 to A3 were marked and PW1 was examined. On behalf of the defendants Exts.B1 to B6 were marked and DW1 & DW2 were examined. Exts.C1 to C3 are the reports/plan of the advocate commissioner. The trial court on appreciation of oral and documentary evidence, came to the conclusion that the plaintiffs have suppressed the existence of ‘P3’ pathway, which was the subject matter of OS No.503/84 on the files of the Munsiff’s Court, Kasaragod instituted by the father of the 1^st plaintiff claiming prescriptive right to use the ‘P3’ pathway, which was granted. Therefore, on an overall appreciation of the evidence, the trial court came to the conclusion that the plaintiffs had failed to establish a right of easement by prescription