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Badariya Madrassa Committee v. Antony Robert Breganza
Factual and Procedural Background
This second appeal arises from O.S. 381/1987 (Munsiff Court, Kannur). The plaintiff owned the A‑schedule property and alleged that access to that property from Kilasi Road (west) was via the B‑schedule property. The plaintiff, who used motor vehicles, asserted he had historically used Kilasi Road and the B‑schedule property to reach the A‑schedule property and claimed a right of way by prescriptive easement (asserting use for more than 70 years). The defendants began construction which, the plaintiff alleged, encroached on the B‑schedule property and obstructed his right of way.
The defendants denied any right of way, contending that Kilasi Road was a recent development (formerly only a lane), that the land in question had been bought by a committee to run a madrasa and for a hall, and that the committee had municipal plans as early as 1983. The plaintiff had filed a complaint with the Revenue Divisional Officer (RDO), who found no passage through the defendants' property. The defendants also pointed out that the plaintiff had an alternate passage in front of his house to Ayikkara Road and argued occasional use did not confer a right.
Both the trial court and the first appellate court granted relief to the plaintiff: they declared a prescriptive right of way over the B‑schedule property with a width of 6 feet 8 inches and granted an injunction against the defendants' obstructive construction. The decree incorporated Ext. C2 (a plan). The defendants (appellants) filed this second appeal challenging those findings.
Legal Issues Presented
- Whether it is absolutely necessary and essential that the plaintiff in a suit for establishment of his claim for easementary right should specifically plead and prove such right over the servient tenement?
- In the absence of a precise description or measurement of the alleged passage, whether it was proper or legal for the courts below to grant a decree basing on the Commissioner's observation that the distance between the two walls was 6 feet 8 inches, thereby holding that this distance should be presumed to be the passage used for vehicular traffic?
- Whether it is proper and legal to grant a decree when there was admittedly an obstruction to the alleged passage four years prior to the institution of the suit, that obstruction was not removed, and there was no passage for vehicles through the disputed passage within the two years immediately before the suit?
Arguments of the Parties
Plaintiff's Arguments
- The plaintiff asserted ownership of A‑schedule property and that access to it was via B‑schedule property to Kilasi Road on the west.
- The plaintiff claimed long‑standing use (over 70 years) of the B‑schedule property for vehicular traffic and sought a declaration of right of way by prescriptive easement and an injunction against obstruction.
- The plaintiff relied on the physical measurement reported by the Commissioner (distance between two defendant buildings being 6 feet 8 inches) and sought declaration of the entire space as the pathway available for his use.
Defendants' Arguments
- The defendants disputed any easementary right, contending the plaintiff had no right of way through their property.
- They submitted Kilasi Road was a recent formation (formerly a lane) and that the property had been purchased by a madrasa committee which obtained municipal plans in 1983.
- The defendants pointed to the plaintiff's complaint to the RDO (Ext. B7) and the RDO's finding that there was no passage through defendants' property; they also noted the plaintiff had an alternate route to Ayikkara Road.
- They argued that even if a narrower pathway (4 feet) existed, the plaintiff had no entitlement to appropriate the entire 6 feet 8 inches for vehicular traffic absent proper pleading and proof under the statutory requirements.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Justiniano Antao v. Bernadette B. Pereira ((2005) 1 SCC 471) | To establish prescription one must show use "as of right", peacefully and openly without interruption for 20 years, and pleadings must be categorical specifying the period of use. | The court relied on the principle that specific pleadings and proof of continuous use for the statutory period are required; used to criticize the plaintiff's lack of specific pleadings and proof of 20 years' uninterrupted vehicular use. |
| Ibrahimkutty v. Abdul Rahumankunju (1992 (2) KLT 775) | Pleadings in easement claims must be specific and precise because easement is a special right claimed over land not owned by the claimant. | The court invoked this authority to emphasize the necessity of specific, precise pleadings in claims of easement by prescription and to fault the plaint for lacking such specificity. |
| Krishnan v. Nanukuttan (ILR 1986 (1) Ker. 5261) | Enumerated the seven ingredients required under Section 15 of the Indian Easements Act for prescriptive easement (pre‑existing easement, peaceful enjoyment, as an easement, as of right, open use, 20 years' enjoyment, and without interruption). | The court used this statement to assess whether the plaintiff had pleaded and established the seven statutory ingredients; found the plaint deficient in specifying these elements, especially continuous vehicular use within the statutory period. |
| Simon v. N. Javanth (1986 KLT 457) | Decision involving easement by grant (distinguished from prescriptive easement). | The trial court relied on this case, but in this opinion the court observed that Simon concerned easement by grant and therefore was not directly applicable to a claim based on prescription under Section 15. |
Court's Reasoning and Analysis
The court conducted a fact‑driven analysis focused on (a) the sufficiency of pleadings, (b) factual interruptions to vehicular use, and (c) the statutory requirement in Section 15 of the Indian Easements Act concerning the period of enjoyment for prescriptive rights.
First, the court emphasized the settled legal requirement (as reflected in the cited authorities) that claims for easement by prescription must be supported by specific and categorical pleadings indicating the precise period of uninterrupted use and by evidence showing use "as of right", peacefully and openly for twenty years. The court noted the plaint merely stated that the way had been used by prescription but did not aver the seven ingredients enumerated under Section 15 (as highlighted in Krishnan).
Second, on the facts admitted in the record the court observed that the plaintiff filed a complaint (Ext. B7) in 1983 about obstruction and admitted that the obstruction caused in 1983 was not removed prior to filing the suit in 1987. Because Section 15 requires that the twenty‑year period be taken to end within two years next before the institution of the suit, the court held that, assuming vehicular use existed prior to 1983, such use had ceased thereafter and therefore the statutory requirement for continuous vehicular enjoyment within the relevant period was not satisfied.
Third, the court considered the trial court's reliance on the Commissioner's measurement (6 feet 8 inches) and that there was no evidence the obstruction remained at the time of the inspection. The lower courts had inferred that even if vehicular use had been interrupted within the two years preceding the suit, continued pedestrian use of the way without interruption justified declaring an easement for the full 6 feet 8 inches (sufficient for vehicular traffic). The appellate court rejected that reasoning: Section 15's requirement cannot be bypassed by proving only pedestrian use or by relying on a contemporaneous physical measurement when the plaintiff has not pleaded continuous vehicular use as of right for the statutory period.
Fourth, the court addressed the suggestion that the way was a public pathway used by all. If the route were truly public, the plaintiff could not claim a prescriptive easement against the defendants as owners; moreover, the plaintiff's own complaint to the municipal authority acknowledged that the municipality considered the land private (municipality informed him it could not interfere). This undercuts any argument that the way was public and therefore available for prescription against the defendants.
Taking these legal and factual points together, the court concluded that the lower courts' grants of a prescriptive easement for the full 6 feet 8 inches were not sustainable because of the lack of specific pleadings and the interruption of vehicular use within the relevant statutory period.
Holding and Implications
Core Ruling: The second appeal is allowed and the judgment and decree passed by the lower courts are set aside.
Direct consequences for the parties:
- The earlier decree declaring a prescriptive right of way of 6 feet 8 inches and the accompanying injunction are vacated.
- The court nevertheless declared a right of way limited to a width of 4 feet through the plaint B‑schedule property for the plaintiff's ingress and egress, reflecting the width conceded by the appellants' counsel.
- Each party shall bear their own costs in this appeal.
Broader implications: The opinion applies established authorities on the requirements for establishing a prescriptive easement and underscores the necessity of specific pleadings and proof of uninterrupted use for the statutory period under Section 15 of the Indian Easements Act. The court did not purport to create a new legal principle; rather, it applied existing authorities to the facts and limited the plaintiff's relief accordingly.
1. This second appeal is filed by the defendants in O.S 381/1987 on the file of the Munsiff Court, Kannur. The suit was for declaration and injunction. The plaintiff is the owner of plaint A-schedule property. According to the plaintiff the access to the plaintiff's house and property is through the plaint B-schedule property to reach Kilasi road situated on the west. The plaintiff further alleged that he was having motor vehicles and the plaintiff used to ply his vehicles through Kilasi “road and plaint B-schedule property to reach plaint A-schedule property. The defendant started construction of a building enroaching into plaint B-schedule property and obstructing the right of way of the plaintiff which he was enjoying for more than 70 yeas. The plaintiff claimed a right of way by prescriptive easement to use plaint B-schedule property for vehicular traffic.
2. The defendants contended that the plaintiff was not entitled for any such declaration or injunction. The plaintiff had no right of way through defendants' property. The Kilasi road itself came into existence recently. It was only a lane earlier. The defendant committee has been constituted to conduct a Madrasa for imparting religious education to the children of the locality. The committee has purchased the land for construction of the hall for this purpose. The committee has obtained the plan from the municipality for construction of the hall as early as in 1983. Plaintiff had filed a complaint before the Revenue Divisional Officer, Tellicherry alleging that his right of way was infringed. On enquiry the RDO found that there was no passage through defendant's property. The plaintiff has got passage in front of his house on the eastern side which leads to Ayikkara road. Even if the plaintiff used to used the passage occasionally it would not confer any right on the plaintiff.
3. Both the trial court as well as the first appellate court have granted a decree declaring plaintiff's right of way over plaint B-schedule property having a width of 6 feet 8 inches by prescriptive easement right and the defendants are injuncted from making any construction so as to prevent free passage enjoyed by the plaintiff to plaint A-schedule property. Ext. C2 plan was directed to form part of the decree.
4. In this second appeal notice was ordered on the following questions of law formulated in the memorandum of appeal.
i) It is not absolutely necessary and essential that the plaintiff in a suit for establishment of his claim for easementary right should specifically plead and prove such right over the servient tenement?
ii) In the absence of a precise description or measurement of the alleged passage was it proper or legal for the courts below to grant a decree basing on the observation by the Commissioner that he found the distance between the two wall on either side of the passage is 6 feet 8 inches, thereby holding that this distance of 6 feet 8 inches should be presumed to be the passage used for vehicular traffic?
iii) Is it proper and legal to grant a decree when admittedly there was an obstruction of the alleged passage four years prior to the institution of the suit, which obstruction admittedly was not removed and there was no passage for vehicles through the disputed passage within two years next before the institution of the suit?
5. It will be advantageous to bear in mind the law declared by the Apex Court and by this Court before a detailed discussion of the above questions of law formulated in the background of the facts of the case.
6. The Supreme Court in Justiniano Antao v. Bernadette B. Pereira ((2005) 1 SCC 471) held as follows:
“But in order to establish a right by way of prescription one has to show that the incumbent has been using thee land as of right, peacefully and openly and without any interruption for the last 20 years. There should be categorical pleadings that since what date to which date one is using the access for the last 20 years. In order to establish the right of prescription to the detriment of the other party, one has to aver specific pleadings and categorical evidence. In the present case, after going through the pleadings as well as the statement of the witnesses it is more than clear that the plaintiff has failed to establish that she has been using the access, peacefully, openly, as of right for the last 20 years.”
7. In Ibrahimkutty v. Abdul Rahumankunju (1992 (2) KLT 775) Paripooman, J. (as his Lordship then was) held as follows:
“In a case, where the claim is for an easement right, it is all the more necessary that the pleadings should be specific and precise. There is reason therefor. ‘Easement’ is a precarious and special right. The right of easement is one which a person claims over a land which is not his own.”
8. Apart from stating that the way has been used by prescription there is no specific pleading involving all the seven ingredients of Section 15 of the Act ie (1) There must be pre-existing easement which must have been enjoyed by the dominant owner; (2) the enjoyment must have been peaceable; (3) the enjoyment must have been as an easement; (4) The enjoyment must have been as of right; (5) the right must have been enjoyed openly; (6) the enjoyment must have been for a period of twenty years and (7) the enjoyment for 20 years must have been without interruption.” (Krishnan v. Nanukuttan (ILR 1986 (1) Ker. 5261
9. Apart from the absence of such pleadings the finding of the trial court on the admitted facts reveals the following facts. The suit was filed only in 1987. In 1983 there was obstruction to the taking of vehicles at the instance of the defendants and Ext. B7 complaint was filed. The plaintiff also admitted that after 1983 till the filing of the suit that obstruction was never removed. Therefore even assuming that there was a right to take vehicles till 1983 it ceased to exist thereafter till 1987 when the suit was filed. Can it be said that “the right existed for twenty years within two years next before the institution of the suit” as required under Section 15 of the Act for the purpose of taking vehicles for which alone the entire 6 feet width of property is claimed. I think not.
10. The trial court considered this aspect in para 18 of the judgment. The admission of the plaintiff that he filed an application before the R.D.O complaining obstruction of passage in question by the Madras committee in 1983 and further admission that after the filing of that complaint the obstruction caused was never removed were also taken note of by the trial court. According to the trial court when the commissioner inspected the property in 1987 the distance between two buildings constructed by the defendants in their land was 6 feet and 8 inches. Defendants had no case that the obstruction was there at the time when the commissioner inspected the property. The trial court found against the contention of the appellants by-observing as follows:
“DW1 has stated during his evidence that the width of the pathway was not reduced after the Madrasa committee purchased the property in question. Therefore the version of the plaintiff that after 1983 the obstruction was not removed only mean that he was not able to take vehicle through the passage in question after 1983 in view of the obstruction by the defendants. Apparently at the time when the commissioner inspected the property for the preparation of Ext. C1 and C2 width of the passage in question was 6 feet 8 inches. At this time there was no obstruction to the use of the pathway having a width of 6 feet 8 inches. The defendants have no case that the obstruction was there at that time. Therefore it is to be presumed that even at the time institution of the suit the plaintiff was using the passage in question without any interruption, though not for vehicular traffic. (emphasis supplied). Even if the plaintiff has not been taking vehicles through the passage in dispute within a period of 2 years, the plaintiff will be entitled to have the use of the passage having the same width as that was in use prior to the institution of the suit.”
11. In appeal, the first appellate court has confirmed this finding of the trial court. According to both trial court as well as the appellate court there was a way in use and even if there was obstruction for vehicular traffic within two years prior to the filing of the suit the prescriptive right of easement will be available for the entire pathway claimed for vehicular traffic also. The trial court relied on the decision of this court reported in Simon v. N. Javanth (1986 KLT 457). In that case the question involved was easement by grant. In the present case we are concerned with a claim of easement by prescription and Section 15 of the Indian Easements Act specifically provides that period of 20 years shall be taken to be a period ending within two years next before the institution of the suit. The finding of the trial court as well as the appellate court that even if there was obstruction for vehicular traffic for more than two years prior to the suit the mere use of way by walking uninterruptedly, the plaintiff can claim easement for the entire width of 6 feet 8 inches does not seem to be correct in view of the provision contained in Section 15 of the Indian Easements Act. Even in the plaint there is no clear averment that the plaintiff has been using the pathway having a width of 6 feet 8 inches as of right and from what period. The commissioner has reported that the distance between the two buildings of the defendants through which there is a pathway is 6 feet 8 inches. Therefore the plaintiff wants that entire space to be declared as a pathway available for the plaintiff's use. It is also stated that this a public pathway and all the members of the public are using this pathway. If that is so there is no question of easement by prescription as against the defendants since it is only if the plaintiff admits the defendant as the owner of the land that easement by prescription can be claimed as against the defendants. The plaintiff himself has admitted in Ext. B7 complaint that he made a complaint before the RDO, Kannur that he had filed a complaint before the municipal authority and they had informed him that it is a private property and the municipality cannot interfere in this matter. Therefore B-schedule property was not recognised as public pathway by the Kannur Municipality.
12. Learned counsel for the appellants submitted that there was a pathway through plaint B-schedule property and it is haying only 4 feet width and the defendants will not prevent the plaintiff from using the pathway. Defendants' only objection is for making use of the entire area as the pathway of the plaintiff. According to the learned counsel unless and until the plaintiff satisfies the entire ingredients of Section 15 of the Indian Easements Act no right of prescription can be declared in respect of plaint B-schedule property for vehicular traffic through B-schedule property. In view of the provisions contained in Section 15 of the Indian Easements Act and the precedents referred to earlier, the reasoning of the trial court as well as the first appellate court cannot be sustained. The second appeal is therefore allowed and substantial question of law formulated on which notice was issued are found in favour of the appellants. The judgment and decree passed by the lower courts are therefore set aside. But the right of way through 4 feet width now available in the plaint B-schedule property as conceded by the learned counsel for the appellants for the ingress and egress of the plaintiff to his property is declared. The parties shall, bear their costs in this appeal.
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