IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 RSA.No. 1141 of 2010() ---------------------------------- AS.NO. 150/2009 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.NO. 99/2004 of MUNSIFF'S COURT,NORTH PARAVUR .................... APPELLANT/PLAINTIFF --------------------------------------- SUNAJA, AGED 53 YEARS, W/O.PRASAD, KANDATHIL VEETTIL, THURUTHIPPURAM MURI, MOOTHAKUNNAM VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.P.K.SAJEEV SRI.JOY. K.N. RESPONDENT(S): DEFENDANTS ------------------------------------------------ 1. AJITHKUMAR, S/O.SANKARAN, AGED 52 YEARS, THOZHUTHUNKAL VEETTIL, THURUTHIPPURAM MURI, MOOTHAKUNNAM VILLAGE, ERNAKULAM DISTRICT, PIN-683 026. 2. SREEDEVI, W/O.RAJ MOHAN, CHETTIYATHU VEETTIL, THURUTHIPURAM KARA, VADAKKEKARA VILLAGE, ERNAKULAM DISTRICT, PIN-683 026. R1 & R2 BY ADV. SRI.V.M.KRISHNAKUMAR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR, J. - - - - - - - - - - - - - - - - - - - - - - - R.S.A No. 1141 of 2010 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of June, 2011 J U D G M E N T Plaintiff in O.S No.99 of 2004 on the file of Munsiff Court, North Paravur is the appellant. Respondents are the defendants. Appellant instituted suit seeking a decree for declaration of easement right, mandatory and prohibitory injunction contending that Plaint A, B, C and D schedule properties originally belonged to his father under Ext.A2 sale deed and subsequently, in 1986 the father alienated 55 cents of the said property under Ext.B1 sale deed in favour of Mohanan who under Ext.B3 assignment deed assigned the property in favour of the first respondent in 1984 and first respondent assigned 6.125 cents of the said property, which is the plaint B schedule property, in favour of the second respondent and subsequently, second respondent obtained 1 cent of property for access to the plaint B schedule property, which is described as plaint C schedule property. Appellant would contend that D schedule property is the only way available to the Plaint A schedule property, which was gifted to him by his father under A1 registered gift deed in 1988, and in such circumstances he has a right of R.S.A No. 1141 of 2010(C) -2- easement by necessity over the plaint D schedule property and respondents are not entitled to deny the right or cause any obstruction. Respondents resisted the suit contending that appellant has no right of easement by necessity over their property as their property was separated from the remaining property by the father of the appellant, as early as on 1976 and therefore, no of right of easement will lie. 2. Learned Munsiff on evidence of PWs 1 and 2, DWs 1 and 2, Ext.A1, A2, B1 to B3, C1 and C1(a) dismissed the suit holding that appellant is not entitled to any right of easement by necessity over the plaint D property which is part of the property which was split up from the remaining property of the father in 1976 and as the plaint A schedule property was obtained by the appellant only in 1988. Appellant challenged the judgment in A.S No.150 of 2008. The learned Additional District Judge on re-appreciation of the evidence, confirmed the findings of the learned Munsiff and dismissed the appeal. Second appeal is filed challenging the judgment. 3. Learned counsel appearing for the appellant was heard. The argument of the learned counsel is that the Courts below did not properly appreciate the evidence and Ext.C1 report of the Commissioner in the R.S.A No. 1141 of 2010(C) -3- Ext.C1(a) sketch establish that plaint A schedule property is a water logged area and the only access available is through the plaint B schedule property and D schedule is the pathway and as there is no other way available to the plaint A schedule property, appellant is entitled a right of way by easement of necessity and the findings of the Court below is erroneous. 4. On hearing the learned counsel, I do not find any substantial questions of law involved in the appeal. The plaint A, B, C and D schedule properties originally belonged to the father of the appellant who obtained it under Ext.A2 in 1950. The plaint D schedule property is part of the plaint B schedule property obtained by the first respondent. Plaint B schedule property, 55 cents is part of the property obtained by Mohanan who in turn obtained title from the father of the appellant under Ext.B1 in 1976. As rightly found by the Court below, a right of way by easement of necessity could be claimed, when the common property was split up and consequent to the splitting up of the tenement, the remaining property cannot be enjoyed without using that portion of the property as a way. Therefore, a right of easement by necessity could be claimed over the plaint B schedule property, split up in 1976 under Ext.B1, for the remaining property covered under R.S.A No. 1141 of 2010(C) -4- Ext.A2 only if it cannot be enjoyed without using the plaint B schedule property as a way. 5. Ext.A1 itself shows that it is part of the property obtained by the father under Ext.A2 excluding the property transferred under Ext.B1. Hence Ext.B1 was not part of the property split up in 1988, when Ext.A1 was executed. Ext.A2 proves that the eastern boundary of the property is a road and the southern boundary is a pathway, which was subsequently converted into a panchayat road. The property transferred under Ext.B1 is only 55 cents of the total property covered by Ext.A2. The evidence establish that the father of the appellant was running an oil mill on the remaining property covered under Ext.A2, which was subsequently converted into a saw mill. Evidence also establish that vehicles used to be taken to that property before and after execution of Ext.B1. There is no case that it was through the plaint B schedule property. Therefore, as rightly found by the courts below, when the property covered under Ext.B1 was split up in 1976, there was way available to the remaining property covered under Ext.A2. Therefore, no right of way by easement of necessity could have been claimed by Kunjan Pilla, the father of the appellant, through the property alienated under Ext.B1. Therefore, when R.S.A No. 1141 of 2010(C) -5- under Ext.A1 a portion of the remaining property was gifted in favour of the appellant his daughter, even if there is no way to that property, the way that could be claimed by easement of necessity could only through the remaining property of the father, the doner under Ext.A1, and that could only be through the property, excluding the property covered under Ext.B1. When the plaint A schedule property was gifted in favour of the appellant in 1988, the father was not having any right in the property transferred under Ext.B1. Hence appellant is not entitled to claim a right of way by easement of necessity over the plaint D schedule property which is a part of the property alienated under Ext.B1 in 1976. In such circumstances, appeal is dismissed. Sd/- M.SASIDHARAN NAMBIAR JUDGE //TRUE COPY// P.A. TO JUDGE krj