Heard learned counsel for the additional appellants. Additional respondents though served remained absent.
2. The substantial questions of law raised for a decision are: (1) is not the finding of the court below that the original respondent has a right of way as an easement by prescription over plaint schedule item No.3 contrary to law? (2) is the evidence on record is sufficient for finding that the original respondent has acquired a right of way by prescription having regard to the fact that people of this country make free use of the neighbour's property left unenclosed without the least idea that they are doing so as a matter of right? On hearing learned counsel for additional appellants and on going through the records, the following additional substantial question of law is raised for a decision: Whether the descriptions in the pliant schedule regarding the disputed way are sufficient to claim the right of easement by way of prescription?
3. The above questions are raised for a decision in the second appeal preferred by the defendants/appellants (original appellants died pending second appeal and their legal representatives were S.A. NO.290 of 1995 impleaded) challenging the judgment and decree passed by the first appellate court in A.S. No.24 of 1991. Original respondent claimed right of easement by way of necessity and prescription over the disputed pathway referred to as item No.3. Learned Munsiff found that both the claims are not established and dismissed the suit. In appeal at the instance of the original respondent first appellate court concurred with the finding of the learned Munsiff as regards the claim of easement by way of necessity but reversed the finding regarding easement by way of prescription and granted relief. It is contended by learned counsel that there is no sufficient evidence to prove the alleged existence of the disputed way or its alleged user as for the statutory periods. It is also contended by the learned counsel that descriptions of the disputed way in item No.3 are not sufficient to grant any relief as prayed for.
4. In the plaint schedule the disputed pathway is described in schedule item No.3 having a length of 24' and width of 5' along the eastern portion of plaint item No.2 which belonged to the original appellants. Original respondent stated in paragraph 3 of the plaint that the Pazhayakavu Kadapra road goes along the north-western side of the property belonging to the original appellants and that the only S.A. NO.290 of 1995 access to plaint item No.1 belonging to her is through the north- eastern extremity of plaint item No.2 belonging to the original appellants. Item No.3 pathway having a length of 24' and width of 5' has been in existence for over 25 years. She also claimed that she has been using that pathway as of right uninterruptedly and openly for more than the said period of 25 years. Original appellants denied the existence of the pathway and claimed that the original respondent has other means of access to her property. In the court below an Advocate Commissioner inspected the properties without notice to the original appellants and submitted Exts.C1 report and C1(a) sketch. In that report the Advocate Commissioner reported about a pathway originating from the steps towards the eastern side of the house of original respondent in item No.1 going almost towards north-western corner reaching upto a granite wall recently constructed towards the eastern boundary of the property belonging to the original appellants. Further fact reported by the Advocate Commissioner is that the width of the pathway is 60 cms. Advocate Commissioner also found a pathway having a width of 50 cms. and length of 4 metres along the property of one Ramakrishna Pillai situated north-west of schedule item No.2 and on the south-east of the Pazhayakavu Kadapra road. S.A. NO.290 of 1995
That pathway is said to be adjoining the suit property. D.W.5 inspected the properties with notice to both parties and submitted Ext.C2. In that report, the Advocate Commissioner referred to an alternate pathway available to the original respondent which both the courts below accepted to negative the claim of the original respondent for a right of easement by way of necessity. D.W.5 found granite wall towards the eastern side of item No.2 having 140' length and 4' height and 3 years old. She also found that there is a large pit towards the north-western portion item No.1 caused by quarrying granite stones. Advocate Commissioner reported that property of Ramakrishna Pillai is situated about a higher level of 2.5' from item No.2 belonging to the original appellants. Both sides adduced evidence regarding the alleged user and non-user of the disputed way. First appellate court accepted the evidence of original respondent in the light of Ext.A1 title deed in respect of plaint schedule item No.1 which is of the year 1119 M.E.
5. In this second appeal it is not necessary to go into the oral evidence let in by the parties. To sustain a plea of easement by way of prescription the fundamental requirement is to prove the existence of a then formed pathway. Of course when the original respondent came S.A. NO.290 of 1995 with an allegation that portion of the pathway along the property of the original appellants was destroyed it may not be possible to prove the existence of the pathway as on the date of institution of the suit. Even though original respondent was required to give datas sufficient to give relief of injunction with respect to the disputed way in plaint schedule item No.3, the description is that the disputed way is having a length of 24' and width of 5' towards the eastern portion of the property belonging to the original appellants. But neither of the Commissioner was able to find any such way having a width of 5'. Instead even through plaint schedule item No.1 width of pathway found by the Commissioner is only 60 cms. while along the property of Ramakrishna Pillai the width of the pathway is only 50 cms. First appellate court therefore stated that the right of easement can be granted in respect of 50 cms. It is not explained how in spite of the original respondent claiming a way having a width of 5' even through plaint schedule item No.1 Commissioner could found only way having a width of 50 cms. Obviously there was no such way in existence as refereed to in item No.3.
6. As regards the alleged user for the statutory period though Ext.A1 is of the year 1119 M.E. what the original respondent claimed in S.A. NO.290 of 1995 paragraph 3 of the plaint is only user of the pathway for more than 25 years which cannot be extended to the year 1119 M.E. As against that claim original appellants contended that Pazhayajavu Kadapra road was formed just 17 years before the institution of the suit. It is not disputed by the original respondent also. Her case is that the disputed pathway is only means of access from plaint schedule item No.1 to the said Pazhayakavu Kadapra road. She never pleaded in the plaint that there was any pathway along the direction in which the Pazhayakavu Kadapra road was formed. It is only for the first time in evidence that original respondent developed a case that before the Pazhayakavu Kadapra road came into existence there was a pathway along that direction. In the absence of plea to that effect that version of original respondent cannot be accepted.
7. It is also seen that as reported by the Advocate Commissioners property of Ramakrishna Pillai is situated about 2.5' higher level of plaint item No.2 belonging to the original appellants. None of the Commissioners was able to point out any steps or other devise to enter the property of Ramakrishna Pillai from plaint item No.2. These are also circumstances which goes against the existence of a pathway. In the these circumstances in the absence of proper S.A. NO.290 of 1995 description as to the existence of the pathway and proof of the same, the first appellate court was not justified in reversing the finding entered by the trial court. So much so that finding cannot be sustained.
Resultantly, appeal succeeds and the judgment and decree passed by the first appellate court to the extent it granted relief against the original appellants are set aside. No costs.
