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2026 Supreme(Online)(Ker) 29849
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Easwaran S., J
Kunhan – Appellant
Versus
Muraleedharan – Respondent
RSA NO. 637 OF 2023
For the Appellants/Petitioners: C.M.Mohammed Iquabal, Istinaf Abdullah, Muhammed Ameen, P.Abdul Nishad, T.H.Raihanath, Keerthi Jayakumar
A party claiming a prescriptive easement bears the burden of establishing continuous, peaceful, and open usage through cogent and independent evidence; failing to meet this evidentiary burden results in the dismissal of the claim, regardless of the existence of alternative access.
Headnote:The appeal concerns a dispute over a prescriptive easement right under the property law framework. The appellant sought to establish a right of use over a specific pathway, asserting usage over 45 years. The trial and appellate courts dismissed the claim, noting a lack of cogent evidence and identifying inconsistencies regarding witness credibility. The appellate court affirmed these findings, observing that while the existence of an alternative path is not an absolute legal bar, the burden remains on the claimant to prove continuous and unobstructed usage, which the appellant failed to satisfy. The core issues were whether the appellant successfully established a prescriptive right of easement and whether the court below erred in its assessment of witness testimony and evidence. The court held that conclusory assertions of long-term usage, unsupported by independent evidence, are insufficient, especially when the pathway is contested as a private way. The ratio decidendi emphasizes that the burden of proof rests firmly on the party claiming an easement, requiring rigorous evidence beyond interested witness testimony to override the private nature of contested property. The appeal is dismissed.
Key Points: - The appellant bears the burden to prove continuous, peaceful, and open usage with cogent and independent evidence for prescriptive easement; failure leads to dismissal regardless of alternative access. (!) - Existence of an alternative pathway is not an absolute bar, but the claimant must prove use of the questioned pathway; private nature of the path and evidence credibility affect findings. (!) - Court held that conclusory long-term usage without independent evidence is insufficient to establish prescriptive right over a contested private way. (!) (!) - An Advocate Commissioner identified the B schedule pathway as claimed by the plaintiff, but the trial court found the plaintiff failed to substantiate the claim with cogent evidence. (!) - Credibility of witnesses (e.g., PW2) is relevant, especially when such witnesses are linked to parties; exclusion of such evidence impacts proof. (!) - Result: the appeal fails; no substantial question of law arises; findings of court below not interfered with. (!)
What is the burden of proof for establishing a prescriptive easement?
What is the effect of an available alternative pathway on prescriptive easement claims?
What evidence is required to prove continuous, peaceful, and unobstructed use of a pathway?
| Table of Content |
|---|
| 1. procedural compliance regarding filing requirements in second appeals. (Para 1 , 2) |
| 2. establishing prescriptive easement requires independent, cogent evidence to overturn private property claims. (Para 3 , 4 , 5) |
JUDGMENT
Though the appeal is filed on 13-10-2023, the appellant is yet to file the physical copy of the appeal. In view of the order passed by this Court in Sreekumari @ Priya and others v. Smitha Kurup and others (in R.S.A No.725 of 2025), the matter is listed for admission with the e-file.
2. Heard Mr. Mohammed Iqbal, the learned counsel for the appellant.
3. The appellant/plaintiff, whose claim for easement by prescription was concurrently dismissed by the courts below, has filed the present appeal. The contention of the appellant is that she has been using the B schedule pathway for the past 45 years and that the defendants attempted to obstruct her right to use the pathway. In support of this claim, the appellant took out an Advocate Commissioner, who identified the B schedule pathway and found that the pathway existed as claimed by the plaintiff. However, more pertinently, on the question of whether the appellant had succeeded in establishing her prescriptive right over the pathway, the court below concluded that the appellant was unable to substantiate her claim by adducing cogent evidence.
4. The learned counsel for the appellant, however, submits that the appellant examined PW2, a taxi driver, who deposed that he had frequently taken the appellant through this pathway to access her property. The credibility of PW2 was examined by the trial court, which found that PW2 was none other than the son-in-law of the plaintiff and, therefore, could not be considered an independent witness. If the evidence of PW2 is excluded, the plaintiff has failed to adduce sufficient evidence to establish her right over the B schedule pathway.
5. Yet another point raised by the learned counsel for the appellant is that the court below non-suited the appellant on the ground of the availability of an alternative pathway, which, according to the counsel, is not a bar to claiming a prescriptive right over the B schedule pathway. It is true that the existence of an alternative pathway is not a bar to claiming a right of easement by prescription. However, when the plaintiff claimed a prescriptive right, it is incumbent upon her to adduce sufficient evidence to establish her right to use the pathway in question. It is also pertinent to remember that the defendants have a specific case that the B schedule pathway is a private way, used exclusively by them for access to their property. Therefore, it was for the same reason that the plaintiff ought to have adduced sufficient evidence to prove otherwise. In the absence of such evidence, the findings rendered by the court below are not liable to be interfered with in exercise of the powers conferred under the Code of Civil Procedure.
Resultantly, the appeal fails as no substantial question of law arises for consideration and accordingly the same is dismissed.
