No Invariable Rule That Prescriptive Easement Right Of Way Can't Be Claimed Over Ridge Of Paddy Fields, Burden Lies On Claimant: Kerala HC

The Division Bench comprising Justice Sathish Ninan and Justice Johnson John observed that there is a significant presumption of permissiveness since villagers commonly use the ridges of paddy fields to pass and re-pass over the paddy fields for convenience as a permissive user, rather than as a matter of a right.

“To sum up, we hold that there is no invariable rule that prescriptive easement right of way cannot be claimed over ridges of paddy fields. But there is a very strong presumption that the user was only permissive and not as of right. The burden would be heavy upon the claimant to establish that the user was, “as of right”. The reference is answered accordingly.”

The Division Bench was considering a reference over the single bench decision in Thottathil Thamasikkum Cherootty alias Balan v. Puliyaratharayil Velayudhan Nair (1998). The single bench had held that villagers commonly used ridges between paddy fields as a permissive right.

In the facts of the case, the plaintiffs seek access to prescriptive easement right of way over a paddy field owned by the defendant. The defendant contended that the paddy field consists of ridges having a short width only and denied the existence of a way. The trial court and first appellate court dismissed the plaintiff's claims and they approached the High Court in a second appeal.

The Court referred to the decisions of the Allahabad High Court in Smt.Balley and another v. Rama Shanker Lal and others (1976) and Vidya Sagar v. Ram Das (1976) and the single bench decision in Cherootty (supra) to state that there is no absolute prohibition in claiming prescriptive easement right of way over the ridges of paddy field. However, the Court stated that it was common practice to permit villagers to use these ridges for their convenience, rather than as a right.

The Court said, “Thus, it is having due regard to the habits of the people in this Country that it was held that, generally, the presumption is that the user of ridges of paddy field for passing and re-passing is not under a colour of right, but is generally considered to be a permissive user.”

The Court also noted that there is frequent realigning of ridges to help with irrigation for paddy cultivation. It stated that ridges do not have a defined course and are not intact to claim a prescriptive right of way over the ridges.

The Court thus stated that there should be sufficient evidence to rebut the presumption of permissiveness to claim right over the ridges of paddy fields.

In the facts of the case, the Court held that there are no specific pleadings by the appellant regarding prescriptive easement right of way. It also stated that the plaintiff and others were using the paddy field of the defendant for passing and re-passing, as permissive users. It thus stated that the plaintiff has failed to establish the claim of prescriptive easement right of way through the ridges of the paddy field.

As such, the appeal was dismissed.

Counsel for Plaintiffs: Senior Advocate P K Suresh Kumar, Advocate K P Sudheer

Counsel for Respondents: Senior Advocate Sumathy Dandapani, Advocate Millu Dandapani

Case Number: SA NO. 18 OF 2001

Case Title: Chirakkal Sankaran Nair v Ponguzhi Parambath Sreedharan Nair

Citation: 2024 Live Law (Ker) 552

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