Neelakantan Raveendran and Lakshmy Anandavally vs Sumathy, Palavila Puthenveedu and Velayudhan

M. Sasidharan Nambiar, J.—Plaintiffs in O.S.217 of 1994 on the file of Munsiff Court, Adoor are appellants. Defendants are respondents. Appellants instituted the suit seeking a decree for permanent prohibitory injunction restraining respondents from trespassing into plaint A and B schedule properties or altering the nature of plaint B schedule way or causing any obstruction to its usage. Plaint A schedule property is the property belonging to appellants under Ext.A1 sale deed dated 10.4.1993 executed by Sivanandan. It was under Ext.A2 sale deed dated 16.4.1980, property was purchased by Sivanandan from Retnamma. First respondent is the sister of Retnamma. It was under Ext.B1 settlement deed, plaint A schedule property was allotted to Retnamma. So also properties were allotted to first respondent and Rajamma, who are the other daughters of Kochukunju and Nani under Ext.B1. The case of appellants is that plaint B schedule way was also assigned under Ext.A1 and A2 to them and they have been in possession and enjoyment of plaint A and B schedule properties and respondents have no right to cause any obstruction to plaint B schedule way or to obstruct appellants from using the way. A decree for injunction was sought on these grounds.

Respondents in their written statement contended that they do not dispute the right and possession of appellants to plaint A schedule property. But it was contended that no way, as plaint B schedule property, exists and Retnamma, the assingor under Ext.A2 did not obtain any such right to be sold under Ext.A1 and Sivanandan, the assignee thereunder also, is not entitled to sell plaint B schedule property to appellants and appellants are therefore not entitled to claim a right of way under Ext.A1 and A2 and they are not entitled to the decree sought for. They in turn claimed a counter claim for a decree for injunction restraining appellants from using plaint B schedule property as a way.

Learned Munsiff, on the evidence of PWs 1 & 2, Dw1, Exts.A1 to A3, Exts.B1 to B3 and Ext.C1 and C1(a), found that the properties originally belonged to the family of appellants and first respondent and no right of way by easement was pleaded, still from the evidence, it is clear that there is a way having two metres of width from the road leading to the property of appellants and appellants are entitled to a decree for injunction sought for. The counter claim was rejected. Respondents challenged the judgment before Additional District Court, Pathanamthitta in A.S.78 of 2001. Learned Additional District Judge, on reappreciation of evidence, found that under Ext.A2, Sumathi can assign only the property which she obtained under Ext.B1 and under Ext.B1, she obtained only the right over plaint A schedule property and not over plaint B schedule property and under Ext.A2, she is not entitled to assign plaint B schedule property to Sivanandan and Sivanandan in turn is not entitled to assign plaint B schedule property to appellants under Ext.A1 sale deed and therefore appellants cannot claim right over plaint B schedule property under Ext.A1 and A2. It was also found that no right of way by easement was claimed and as there is no case that plaint A and B schedule properties was originally owned by the same person and there was a severance of the properties, right of easement by necessity will not arise. It was further found that there is no evidence to establish a right of way by easement of prescription and appellants have no right of way through plaint B schedule property and hence they are not entitled to a decree for injunction in respect of plaint B schedule property. Appeal was allowed and suit was dismissed. It is challenged in the second appeal.

Learned Counsel appearing for appellants was heard. The argument of the learned Counsel is that Ext.C1 report and C1(a) sketch establish that there is no other way available to plaint A schedule property except plaint B schedule property and in such circumstances, when Ext.A2 establishes that in 1980 Retnamma, the sister of first respondent assigned plaint A schedule property to Sivanandan, the way was in existence which was again assigned by Sivanandan under Ext.A1 and in such circumstances first appellate court should not have interfered with the decree granted by the trial court. Learned Counsel also submitted that when specific pleading based on right of easement by prescription was raised in the plaint, in the nature of the case, an opportunity is to be granted to amend the plaint claiming such right and in such circumstances, appeal is to be admitted.

On hearing the learned Counsel, I do not find any substantial question of law involved in the appeal. The suit was only for injunction based on the case that under Ext.A1, appellants have purchased both plaint A and B schedule property and they have got right and title to plaint B schedule property. The suit was based only on Ext.A1 and A2 and that too as the owner of the property. Therefore no claim for right of way by easement either by necessity or by prescription was raised. Learned Munsiff finding that a way exists, granted a decree. First appellate court on the evidence found that though no right of easement was claimed, a right of easement by necessity will not lie and right of prescription was not established. True, when there is no case for appellants that they have a right of way by either easement of necessity or easement of prescription and no evidence was adduced on that right, the question whether such a right is available or not cannot be decided in the suit. As the suit is based on Ext.A1 and that too claiming right and title to plaint B schedule property, right of easement by prescription does not arise for consideration. I do not find that it is in the interest of justice to grant a permission to appellants to amend the plaint and thereby change the very nature of the suit at this belated stage. On the evidence, as rightly found by first appellate court, appellants cannot claim title to plaint B schedule property. What was assigned under Ext.A2 by Retnamma is only the right which she obtained under Ext.B1. Under Ext.B1, no right over plaint B schedule property was vested on Retnamma to be assigned to Sivanandan under Ext.A2. Therefore Sivanandan has no right to transfer plaint B schedule property to appellants under Ext.A1. Appellants are not entitled to claim any right over plaint B schedule property as the owner of that property. As no right of easement by prescription was claimed, first appellate court rightly dismissed the suit. I do not find any substantial question of law involved in the appeal.

Appeal is dismissed. It is made clear that dismissal of the suit will not affect right of appellants to claim a right of way in a properly instituted suit as no right of way by easement was claimed or evidence adduced. In such circumstances, the finding on those aspects will not debar appellants from claiming the right.