Plaintiff failed to prove prescriptive easement right under Section 15, Easements Act due to lack of evidence of continuous use, direct alternative access, and unmarked title deeds.

J U D G M E N T

The defendant in OS No.30/2001 on the files of the Munsiff's Court, Ettumanoor, a suit for declaration of prescriptive easement right and permanent prohibitory injunction, has come up in the present appeal, aggrieved by the reversal of the dismissal of the suit by the first appellate court.

2. Brief facts necessary for the disposal of the appeal and the cross objection are as follows:

Three items of properties described in the schedule to the plaint are A, B and C. 'A' schedule property consists of 23 cents of land with a line building having 8 rooms. 'A' schedule property vested with the plaintiff by deed No.3234/1996 of SRO Ettumanoor. 'B' Schedule property of the defendant lies on the eastern side of 'A' schedule property. Ettumanoor – Neendoor public road passes on the southern side of the 23 cents of land in the east-west direction. The industrial estate road of the defendant is on the eastern side of the 'B' schedule property. 'C' schedule property is a 10 feet width road upon the 'B' schedule property towards 'A' schedule property of the plaintiff. The plaintiff claims that he, as well as his predecessors are using 'C' schedule pathway, continuously as of right peacefully and openly without any obstruction for the last 40 years. The suit was instituted when the plaintiff obtained information regarding the attempt made by the defendant to sell off 'B' schedule property, destroying 'C' schedule pathway. Defendant entered appearance and contested the suit, contending that no public road passes through 'B' schedule property. The road which connects the Ettumanoor-Neendoor public road and the industrial estate road is not a public road. The road that leads to the estate is a private road and that road proceeds to the production centre unit of the Government of India. The road was connected exclusively for the smooth functioning of the industrial estate. Neither the plaintiff nor his predecessor has a legal right to proceed towards the Neendoor - Ettumanoor public road by passing through the 'B' schedule property. The 'C' schedule property (pathway) described in the plaint is forming part of the property of the defendant. The defendant thus contended that the plaintiff has not acquired any prescriptive right of easement over the 'C' schedule property shown in the plaint. On behalf of plaintiff, Exts.A1 and A2 were marked and PW1 to PW4 were examined. On behalf of the defendant, DW1 was examined. Exts.C1 and C1(a) are the report and the rough sketch filed by the advocate commissioner. The trial court framed the following issues for consideration:

“1. Is the suit not maintainable?

2. Whether the extend of the item No.B shown in plaint is correct or not?

3. Whether prayer for declaration of prescriptive easement right over 'C' schedule can be allowable?

4. Whether prayer for permanent prohibitory injunction can be allowable?

5. Reliefs and costs.”

The trial court, on appreciation of the oral and documentary evidence, came to the conclusion that the plaintiff failed to adduce cogent evidence to prove that he had perfected the prescriptive right of easement over 'C' schedule pathway. Accordingly, the suit was dismissed with cost of the defendant alone. Aggrieved, the plaintiff preferred AS No.1/2003 before the Additional District Court (Adhoc)- I, Kottayam and by judgment dated 19.2.2007, the first appellate court allowed the appeal, reversed the dismissal of the suit and granted a decree in favour of the plaintiff. Hence, the present second appeal by the defendant.

3. On 14.8.2013, while admitting the appeal, this Court frame