R.D.SUBRAMONIAN Vs. C. B. SUKUMARA KURUP

JUDGEMENT

(1.) The defendants 3 and 4 came up with this appeal. Originally a suit for injunction with a prayer not to measure the plaint schedule property or to trespass upon the plaint schedule property was filed against the Survey authorities, the first and second defendants and also against defendants 3 and 4, the appellants herein. That suit was filed on 28.06.2003. Subsequently an amendment application was filed on 06.03.2006, wherein the suit was amended as the one for declaration of prescriptive right of easement of way over 'C' schedule. The 'B' and 'C' schedules were incorporated by way of amendment. Originally the suit was filed with respect to 'A' schedule property alone. After the amendment the suit became one for declaration of easement right over the 'C' schedule property based on the dominant heritage - 'B' schedule. The 'B' and 'C' schedule were subsequently incorporated in the plaint schedule by way of amendment dated 06.03.2006. In fact a new suit was substituted in the place of earlier one by incorporating 'B' and 'C' schedule and a relief of prescriptive easement over 'C' schedule for the convenient user of 'B' schedule. The suit was proceeded with and the Trial Court and the First Appellate Court decreed the suit granting declaration of prescriptive right of easement over 'C' schedule way for the convenient user of dominant heritage - 'B' schedule property. Aggrieved by the said decree and judgment, the defendants 3 and 4 came up with this appeal.

(2.) It is by virtue of an amendment a claim of prescriptive right of easement incorporated by scheduling dominant tenement and servient tenement. It was not there in the suit at the time when the suit was filed. Inorder to claim prescriptive right of easement, the mandate of user of right for a period of 20 years ending within two years has to be established. The expression 'ending within two years' stands for the time available for instituting a suit based on prescriptive right of easement from the date of interruption. It is an admitted case of both the plaintiff and the defendant that as on the date of amendment, there was an obstruction by the existence of an obstructive fencing at the entrance of C schedule by which its user was completely obstructed. But according to the plaintiff, the obstructive fencing was constructed on 8.4.2005 and the amendment was filed on 6.3.2006, within two years. It was disputed by the defendant stating that the obstructive fencing was constructed immediately after the suit i.e. on 30.6.2003. The suit was filed on 28.6.2003, but the amendment was filed only on 6.3.2006, after the expiry of two years from the date of obstruction, as alleged by the defenant. It was submitted that since there is a complete obstruction to the user of C schedule way, it would come under the purview of an 'interruption' as defined under section 15 of the Indian Easements Act and took reliance from the decision of this Court in Pankan Soman vs. Manoharan C.K. [2019 (1) KHC 817]. It is settled by this court that " Explanation II attached to Section 15 of the Act really explains what actually amounts to an "interruption", in a negative way that nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of any obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof. It stands for an actual cessation of the enjoyment by reason of obstruction made by the person other than the claimant." Then yet another embargo would also come into play as to whether such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof. One of the most crucial aspect now emerges from the admission of plaintiff is the date of construction of obstructive fencing which according to the plaintiff is on on 8.4.2005, but according to the defendant, it was constructed on 30.6.2003, two years prior to the amendment. There is no dispute that it was constructed during the pendency of the suit. The short question came up for consideration at this juncture is :

(3.) Once amendment to the pleadings are permitted to be incorporated in the suit without saving the question of limitation, what would be the application of 'doctrine of relation back' and whether the amendment allowed and carried out would revert back to the date of suit or would operate from the date of its amendment?