MARTHOMA SYRIAN CHURCH Vs. JESSIE THAMPI

JUDGEMENT

(1.) A suit for declaration of prescriptive right of way over C schedule property and mandatory injunction to remove D schedule gate installed at the entrance of C schedule to the southern road was dismissed by the trial court, but it was decreed by the first appellate court, against which defendants 1 to 3 came up with this appeal.

(2.) Out of a large extent of 97.5 cents, an extent of 62.5 cents along with a right of way over 8 feet width land set apart through the eastern boundary of the large extent, was purchased in the year 1953 under Ext.B2 document by the defendants 1 to 3. Later on, the balance extent of 35 cents including the title over the way set apart in the year 1953 was also purchased under Ext.B3 in the year 1961 by the defendants. The claim of plaintiff is that she had perfected prescriptive right of easement of way by long, continuous, uninterrupted use of way 'as of right', 'as an easement', from time immemorial. She had installed a gate in front of their registered holding opening towards the said way. The commissioner who visited the property reported its oldage as more than 30 years. In the document of purchase, Ext.B2 of the year 1953, the right of way given to use the 8 feet width land through the eastern extremity of the large extent of property is well evident. It would show its existence right from the year 1953. The commissioner reported the existence of way and the gate having more than 30 years oldage provided by the plaintiff to her registered holding from the above said the way. The user of the said way 'as of right' 'as an easement' continuously for last more than 30 years is well evident from the above said facts. When some portion of property was lying as a way and set apart for using it as a way to a certain person, the user of the said way by some other person having adjoining property as means of access to their registered holding would always be construed a user 'as of right' unless the contrary is proved. The expression 'as of right' should be understood just opposite to a permissive user and stands for user in derogation of the right of the title holder with an open assertion to use the same as means of access, for the purpose of Section 15 of the Indian Easement Act. The installation of a permanent structure, a gate in front of the dominant heritage enabling user of servient heritage by the dominant owner itself would constitute an open assertion of animus to use the servient heritage as an easement and as of right.

(3.) The suit was filed within two years from the date of obstruction by the installation of D schedule gate at its entrance from the southern road. Even otherwise, the alleged installation of D schedule gate would only be a partial obstruction and cannot be brought under the purview of an 'interruption' as defined under Section 15 of the Indian Easement Act. What amounts to 'interruption' as defined under Section 15 of the Indian Easement Act was settled by this court in Pankan Soman v. Manoharan C.K. ( 2019(1) KHC 817).