P.G. Ajithkumar, J
1. The appellants filed O.S.No.261 of 1999 before the Munsiff’s Court, Perumbavoor seeking a decree of declaration and injunction, both prohibitory and mandatory. Their claim was that they prescribed right of way along plaint C schedule pathway. The respondents, part of whose property is plaintiff C schedule, opposed that claim by contending that such a pathway never existed and the same was the ridge of their paddy field. The learned Munsiff dismissed the suit as per the judgment dated 11.06.2007. In the appeal preferred by the appellants under Section 96 of the Code of Civil Procedure, 1908, the learned Additional District judge, North Paravur confirmed the said judgment and decree. Aggrieved by the same, this Second Appeal under Section 100 of the Code is preferred.
2. The substantial questions of law formulated for consideration are,-
1) Is not a dominant owner qualified to prescribe right of way along the ridge of a reclaimed paddy field?
2) Is the finding of facts by the courts below in relation to the claim of the appellants that they prescribed right of way along plaint C schedule is so irrational attracting the blame of being perverse?
3. The 1st appellant is the owner and in possession of plaint A schedule property. The 2nd appellant is the owner and in possession of plaint B schedule property. The property of the respondents abuts the public road at its northern side. The appellants claim that they have been using for the last more than 35 years a five feet wide area on the northern and western sides of the respondents' property, which starts from the public road on the northern side. The said pathway, which the appellants described in plaint C schedule, is stated to branch; one towards south and other towards west. The branch towards south reaches plaint A schedule property and the other proceeds towards the west to reach plaint B schedule property.
4. The respondents would contend that such a pathway never existed along the northern or western sides of their property. Their contention is that they had to replace the old gate on the northern side and the old mud bund on the boundary of their property. They contended that the appellants making use of that opportunity instituted the suit claiming a pathway, which never had existed or enjoyed by the appellants. The respondents further contended that the appellants have been using two pathways; one along the Church property situated on the northern side and the other along the ridges of the paddy field, which situates further east and south of the respondents' property.
5. While the appellant tried to substantiate their case with the aid of the oral testimonies of PW1 to 6 and the successive reports of the Commissioner, the respondents apart from relying on the oral testimony of DW1, who is the 1st respondent, rely on the circumstances arising from the appellants’ evidence to urge that the claim on plaint C schedule pathway is totally baseless. The learned counsel appearing for the appellants would submit that both the courts below did not appreciate the evidence in its proper perspective whereby the nature of the C schedule pathway was not understood. It is the submission of the learned counsel that such a mistaken understanding of the facts resulted in dismissing the suit. The pathway referred to by the courts below is the one that starts from the road on the eastern side of the respondents’ property and proceeds along the ridge of the paddy fields, which is situate far away from plaint A and B schedule properties. That is the pathway suggested by the respondents as one of the alternative pathways and according to the learned counsel for the appellants, that was misunderstood by the courts below as plaint C schedule. It is pointed out that the C Schedule pathway is along the northern and western sides of the respondents’ property, which starts from the northern public road and runs abutting the compound wall of the Church property. It is in between the Church property and the respondents’ property. Thus it is contended that the courts below rejected the appellants’ case on the wrong impression that the pathway in dispute is a ridge; whereas the fact is otherwise.
6. In Cherootty Balan v. Velayudhan Nair [1998 (1) KLJ 479] the question was regarding the acquisition of right of way by prescription along a ridge across paddy fields. Plaint B schedule in that case was the disputed way which admittedly was a ridge. This Court held that the plaintiff was using the B schedule, but its user can only be permissive. It is a common feature in Indian villages that people generally pass along the ridges between two paddy fields. Their right of way can only be permissive. The Court after considering the factual situation, particularly that there was no evidence to hold that the plaintiff was enjoying the B schedule ridge as of right for a continuous period of 20 years against the interest of the true owner held that the plaintiff cannot claim easement by prescription.
7. If the disputed way is a ridge in between two paddy fields, the claim of prescriptive easement right of way, therefore, is untenable. Here, the facts are different. The definite case of the appellants is that plaint C schedule is not a ridge and the properties on its either side are not paddy fields, but dry lands. Even the respondents have no case that their property is now paddy fields having paddy cultivation and there is a need to retain water there with the help of ridges. Their case is that their property is now planted with tapioca and pineapple. It might be a fact that long before those properties were paddy fields, but now not. In the above context is the relevance of the question whether a right of way can be prescribed along a reclaimed paddy field?
8. When the paddy fields are reclaimed and there is no occasion or necessity for retention of ridges to regulate water flow between the fields, the position is totally different. The reclamation of paddy fields converts the nature of the properties and therefore the utility. As a consequence of the reclamation of a paddy field, its ridges become either part of the converted land or a bund losing its significance as a water regulating mechanism.
9. In Kalyani v. Bhaskaran [1993 (1) KLT 415] this Court restated the proposition expounded by the Judicial Committee of the Privy Council in Attorney General of Southern Nigeria v. John Holt and Company [(1915) AC 599] that the law must adapt itself to the conditions of modern society and trade, and there is nothing in the purposes for which the easement is claimed inconsistent in principle with a right of easement as such.
10. In view of the change in the nature and circumstances of the properties involved in this case, as stated above, the aforesaid principle has application. What follows is that if a dominant owner uses a pathway along such a reclaimed land for the statutory period of 20 years with such requirements to constitute a prescriptive easement right, the legal fiction against a claim of prescriptive right of way along the ridge of a paddy field does not apply. The dominant owner is able to prescribe right of way, provided he proves the usage of the pathway after such reclamation with characteristics required to prescribe the right including the requisite period of usage.
11. This takes us to the next question, whether the findings recorded by the courts below in regard to the existence of plaint C schedule and its usage by the appellants are perverse requiring interference by this Court. In Jagdish Singh v. Natthu Singh [(1992)1 SCC 647] the Apex Court held that there is no prohibition on entertaining a second appeal even on a question of fact, provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non - consideration of relevant evidence or by showing an erroneous approach to the matter i.e. the findings of fact are found to be perverse. It is, however, explained that the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. This principle was reiterated in Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740] and Municipal Committee, Hoshiarpur v. Punjab State Electricity Board and others [(2010) 13 SCC 216].
12. The Apex Court in Illoth Valappil Ambunhi (D) By LRs. v. Kunhambu Karanavan [(2020) 18 SCC 317] held that it is now well settled that perversity in arriving at a factual finding gives rise to a substantial question of law, attracting intervention of the High Court under Section 100 of the Code. In Narayan Sitaramji Badwaik (Dead) through LRs. v. Bisaram and others [AIR 2021 SC 2438] the Apex Court considered the extent of the jurisdiction of High Courts to appreciate factual issues under Section 103 of the Code. It was held that the High Court may decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the appeal has not been determined by the lower Appellate Court or by both the Courts below. And the second, when an issue of fact has been wrongly determined by the Court below by virtue of the decision on the question of law under Section 100 of the Code. The said principle was reiterated by the Apex Court in Azgar Barid (D) by LRs. and others v. Mazambi @ Pyaremabi and others [(2022) 5 SCC 334].
13. Therefore, it is to be considered whether the findings of fact arrived at by the courts below are by taking into consideration irrelevant material or if the findings are so outrageously defying logic. If the findings of the courts below suffer from the vice of unreasonableness and are illogical, certainly this Court can interfere with such findings.
14. PW1 is the 1st appellant. He deposed quite in terms of the case set forth in the plaint. He deposed that ever after the purchase of plaint A schedule property by his father in 1965 as per Ext.A1, the way they have been using is plaint C schedule. A building was constructed in that property and therefore the requirement of frequenting to the said property cannot be disputed. The property of the Madom is on the north of A schedule. A pathway separates the Madom property and its northern Church property. From the north-eastern corner of Madom property the pathway branches; one to south to reach plaint A schedule and the other to west to reach plaint B schedule. Existence of those two branches which are described as parts of plaint C schedule is not in dispute. The Commissioner as per the successive reports, Exts.C1, C2 and C3 reported the existence of those pathways also. The dispute is with respect to the pathway in between the Church property and its eastern side property belonging to the respondents. The claim of the appellants is that that portion of plaint C schedule is part of the respondents' property and they had been using it for the last 35 years till its usage was blocked by putting up walls at its both ends.
15. The appellants’ definite case is that the two branches of the C schedule pathway converges near the western boundary of the respondents’ property and from there it proceeds along the side of the compound wall of the Church property and through the western and northern extremity of the respondents’ property to reach the road on the northern side. The dispute is with respect to that portion of the C schedule pathway.
16. The Commissioner is PW4. He visited the properties on the third day of filing the suit. He reported that a beaten track was found along the said disputed portion of plaint C schedule. He, as per Ext.C1, which is his first report, reported that the area other than the beaten track was covered by grass. That grassy area had an average width of five feet. Besides PW1, PW3, the Priest of the nearby St.Joseph’s Catholic Church, PW5, who claimed to have conducted a stationery shop near the Church and the properties in dispute during the period from 1971 to 1979 and PW6, who claimed to have used the disputed pathway deposed in court describing the nature of that pathway. DW1 deposed that the five feet wide area on the northern and western sides of his property, along which the disputed portion of plaint C schedule pathway runs, is lying separate without having any cultivation. It is the version of DW1 that parts of the said five feet wide area has rocky formation and therefore cultivation is not possible.
17. It is true that when the Commissioner visited the second and third time, the disputed portion of plaint C Schedule pathway could not be used as a pathway, having it been covered with wild growth. The reason is obvious. From north it starts from near the gate of the respondents' property and runs in between that gate and the compound wall of the Church property. The other end is where the remaining part of plaint C schedule branches towards south and west. Indisputably at both the said ends of the disputed portion of plaint C schedule walls were put up. PW4, the Commissioner categorically reported that the said construction, which was using hollow bricks, was two days prior to his first visit. That means, the said construction was on the day of filing of the suit or the previous days. DW1, during cross-examination, has admitted also that fact.
18. The respondents contended that the gate on the northern side of their property has been in existence for long. It is their plea and also the version of DW1 in court that just before filing of the suit, the old gate was replaced and the blockade was put up while they replaced the old mud-bund on the boundary of their property.
19. If the case of the respondents that their property was a paddy field, and pineapple and tapioca cultivation started there before 6 or 7 years only, their claim that such a gate was there for quite a long cannot be true, for no one will install a gate for a paddy field. PW3, who is a Priest, stated in that regard that recast pillars were brought by a group of people and newly installed in the respondents’ property and on such pillars the gate was installed. Of course, PW3 is interested in avoiding a pathway along the Church property. But, when there is a boundary wall around the Church property, and even according to DW1 the appellants cannot use the Church property for their ingress and egress as of right and without permission of the Church authorities, PW3 need not state falsehood for the purpose of avoiding a pathway along the Church property alone. Moreover, the oral testimony of PWs.5 and 6 probabilised usage of a pathway along the five feet wide stretch in between the compound wall of the Church property and the respondent’s property. That five feet wide portion is not suitable for cultivation due to rock formation. In such circumstances, that portion could never be a ridge, even when the respondents' property was cultivated with paddy earlier as they claimed.
20. In the light of the said evidence, the only probable conclusion is that a walkable way was in existence along the disputed portion of plaint C schedule, and the appellants had been using it to reach their respective properties. The way towards the west and towards south are like an extension of the disputed portion of the plaint C schedule. The southern branch that proceeds to plaint A schedule, indisputably, has a width of three feet. Therefore, the right the appellants is to claim a pathway of three feet width alone.
21. Existence of a ridge that starts from the road on the further eastern side of the respondents’ property and along southern side of a few paddy fields has been reported by the Commissioner. Existence of one another pathway reaching the properties of the appellants from western side is suggested by the respondents. But the Commissioner did not report availability of such a way in the nature of being usable by the appellants. No other evidence in that regard was let in also by the respondents. As pointed out above, the appellants cannot use the Church property for their access, without permission of the Church authorities. Even if a ridge as described above, which is a circuitous one, has been in existence and used by the appellants, that does not disentitle them from claiming right along the disputed pathway; since they succeeded in establishing the existence and usage of it with the characteristics of an easement. Also, it is legally impermissible for the appellants to use the ridge to pass through as of right.
22. As held by this Court in Ibrahimkutty v. Abdul Rahumankunju [1992 (2) KLT 775] ordinarily, a Court can appreciate the evidence and decree a suit only based on the pleadings of the parties. Where an easement right is claimed, it is necessary that the pleadings shall be specific and precise. There is a reason therefore. 'Easement' is a precarious and special right. The right of easement is one which a person claims over a land that is not his own. Since the right of easement is a precarious and special right claimed over the land of another, the pleadings must be precise.
23. In Justiniano Antao and others v. Smt. Bernadette B. Pereira [(2005) 1 SCC 471] the Apex Court held that to establish a right by way of prescription, one must show that the incumbent has been using the land as of right peacefully and openly and without any interruption for a period of 20 years. In addition, there should be categorical pleadings that from what date to which date has one been using the access thereby constituting the period of 20 years. Therefore, to establish a right of prescription which is detrimental to the other party, one has to have specific pleadings and categorical evidence.
24. In Justiniano Antao (supra) there was no pleading by the plaintiff that she used the pathway in question for a period of 20 years. Holding that in the absence of such a pleading which is elementary and essential to claim a prescriptive easement right, the Apex Court held that the date from which the right of way was started to use should have been pleaded. The pleadings set forth by the appellants in this case certainly constitute sufficient pleadings to claim easement by prescription. It is true that they did not plead as to from which date they started using that pathway. They, however, pleaded that for the last more than 35 years they have been using that pathway. In the light of such a specific pleadings the law laid down in Justiniano Antao [(2005) 1 SCC 471] does not disentitle the appellants from claiming the relief.
25. From the evidence adverted to above existence and usage of plaint C schedule pathway by the appellants at least from the period of purchase of plaint A schedule property by the predecessor of the 1st appellant, which was in the year 1965, can well be found. The ridge on the far eastern and southern sides of the respondents' property was mistaken for the disputed pathway by the courts below and that resulted in reaching totally a wrong conclusion by the courts below. I am of the view that this Court is obliged to correct the said mistake although it is a question of fact. In that view of the matter the inevitable conclusion is that the alternative pathway suggested by the respondents were not the one used by the appellants as of right and their right to claim prescriptive easement along plaint C schedule pathway is undeniable. The contrary findings of the courts below are liable to be reversed. The substantial questions of law are answered accordingly.
Resultantly, this appeal is allowed and the suit is decreed as follows,-
(1) The right of the appellants to use the pathway at a width of three feet along plaint C schedule portion adjoining to the compound wall of the Church property, which is plot No.5 in Ext.C3(a) sketch is declared;
(2) The respondents shall remove the blockade at both ends of the said pathway within one month from today, failing which the appellants can get it removed through the court;
(3) The respondents are restrained from causing any obstruction to the right of the appellants to use plaint C schedule pathway as described above;
(4) Ext.C3(a) sketch will form part of the decree; and (5) No costs.
