IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 RSA.No. 972 of 2004() --------------------- AS.321/2001 of DISTRICT COURT, THRISSUR OS.850/1998 of MUNSIFF COURT,CHAVAKKAD .................... APPELLANTS/RESPONDENTS/DEFENDANTS: ----------------------------------------------------------------- 1. RAVI, AGED ABOUT 61 YEARS, S/O. PURAKKOLIPARAMBIL KRISHNANKUTTY, RESIDING AT THALIKKULAM AMSOM, DESOM, CHAVAKKAD TALUK. 2. RUGMINI, AGED ABOUT 51 YEARS, W/O. PURAKKOLIPARAMBIL RAVI, RESIDING AT THALIKKULAM AMSOM, DESOM, CHAVAKKAD TALUK. BY ADV. SRI.K.B.MOHANDAS SRI. T.G. LELLULAL . RESPONDENT: APPELLANT/PLAINTIFF: ------------------------------------------------------------- SIDHAN @ SIDHARTHAN, AGED 51 YEARS, S/O. KALAPPURAKKAL KUNJAKKAN, THALIKKULAM AMSOM, DESOM, CHAVAKAD TALUK. ADV. SRI.PEARLY JOSE FOR R1 SRI.U.RAVISANKAR FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 7 / 12/ 2011, THE COURT ON 07/12/2011 PASSED THE FOLLOWING:- M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 972 OF 2004 =========================== Dated this the 7th day of December,2011 JUDGMENT Defendants in O.S.850/1998 on the file of Munsiff Court, Chavakkad are the appellants. Respondent is the plaintiff. Respondent instituted the suit seeking a decree for permanent prohibitory injunction contending that plaint A schedule property belongs to him under Ext.A1 sale deed and he purchased the property in 1989 and since then he has been in exclusive possession and enjoyment of the property. Respondent contended that on the north of the plaint A schedule property, there exist an ancient way which leads to the public road, which lies to the west. That is the only way available to the plaint A schedule property, when he purchased the property and he has been using the way as of right, as an RSA No.972/2004 2 easement, openly peaceably and without interruption for more than 50 years and no other way is available to the plaint A schedule property and plaint B schedule way passes through the property of the appellants and they have no right to cause any obstruction to the way. Alleging that appellants attempted to cause obstruction, a decree for permanent injunction was sought for. Appellants resisted the suit contending that plaint B schedule property has never been used by the respondent as a way and the way to the plaint A schedule property is from the southern beach road and respondent has not prescribed any right of way over plaint B schedule property and he has no right to use any portion of the property of the appellants as a way and therefore the suit is to be dismissed. 2. Learned Munsiff on the evidence dismissed the suit holding that respondent did not establish a right of way and he is not entitled to the decree sought for. Respondent challenged the decree RSA No.972/2004 3 before District Court, Thrissur in A.S.321/2001. Learned District Judge on reappreciation of the evidence found that plaint A schedule property and the property of the appellants which lies to the west were originally owned by the same person and by splitting up of the tenement and subsequent transfer appellants obtained the property under Ext.A3 and the respondent obtained plaint A schedule property under Ext.A1 sale deed and the only way available to the plaint A schedule property is through the property of the appellants and it proceeds from the plaint A schedule property towards the west, then towards the south and then towards the west, then towards the north and thereafter proceeds towards the west and joins the western Ithikkadu road and appellants are not entitled to cause obstruction to the way. The appeal was allowed and a decree restraining the appellants from causing obstruction to the way was granted. It is challenged in the second appeal. 3. Second appeal was admitted formulating the RSA No.972/2004 4 following substantial questions of law. 1. Whether an easement of necessity can be inferred from a recital in the documents of the dominant tenements that the dominant and servient tenements originally belonged to the same person? 2. Whether in the facts and circumstances of the case the finding of the courts below that the respondent is entitled to claim right of passage by easement of necessity? 3. Whether easement of necessity can be claimed without proving the unity of ownership of properties within the same boundary RSA No.972/2004 5 and the severance of properties? 4. Learned counsel appearing for the appellants and the learned counsel appearing for the respondent were heard. 5. The argument of the learned counsel is that the western Ithikkadu road came into existence only five years prior to the institution of the suit and therefore the case of the respondent that plaint B schedule way was being used to reach the the western road can never be true. Learned counsel argued that the way which was available to the plaint A schedule property is from the southern beach road and when the evidence establish that there is an alternate way available to the respondent, respondent is not entitled to the right of way by easement of necessity and on the evidence first appellate court was not justified in granting the decree. 6. Learned counsel appearing for the respondent argued that the evidence of the first appellant as RSA No.972/2004 6 DW1 establish that though the western road was formed later, there existed a public way on the west earlier which was later widened to a road and the way from the property of the appellants is towards the said public way on the west and the northern boundary of the property of the appellants, as is clear from Ext.A3, is nadavaramba which establishes that there exists a way on the north of the property of the appellants as claimed by the respondent. It was also argued that case of the appellant was not that the way which starts from the western road is exclusively to the property of the appellants and it does not proceed further towards the east and instead it was denial of the very existence of the way. Learned counsel argued that even if there is any other way available to the plaint schedule property, unless the respondent has a right to use that way, based on the existence of a way, the right of way by easement of necessity cannot be denied. 7. The fact that the property of the appellants RSA No.972/2004 7 and the respondent originally belonged to the same person and it was divided later and by subsequent assignment under Ext.A1 plaint A schedule property came to vest with the respondent and under Ext.A3 the western property came to vest with the appellants is admitted. In such circumstances when the joint tenement was split up and plaint A schedule could not be enjoyed without making use of the property of the appellants, which lies to the west, as a way respondent is entitled to a right of way by easement of necessity. Though learned counsel appearing for the appellants vehemently argued that the western Ithikkadu road was formed only five years prior to the institution of the suit and therefore there could not be a way in existence in 1989 when the respondent purchased plaint A schedule property, evidence of DW1 itself is sufficient to hold that there existed a public way on the west much earlier which was subsequently converted into a public road. Ext.A3 shows that the northern boundary of the property of the RSA No.972/2004 8 appellants is a nadavarmba. There is subtle difference between varamba and nadavaramba. Varamba is a ridge and nadavaramba is a ridge through which people walks and use as a way. When the northern boundary of the property of the appellants is shown as nadavaramba appellant cannot dispute the existence of the way. Reports submitted by the Commissioner establish the existence of the way from the western public way to the property of the appellants. If it is a way leading to the property covered under Ext.A3 alone, then the northern boundary would not have been shown as nadavaramba. That itself is sufficient to hold that on the north of the property of the appellants covered under Ext.A3, a way exist. It is the way which is claimed by the respondent, as rightly found by the courts below. Eventhough it was argued that respondent has a way towards the southern beach road, there is no evidence to prove that respondent has any right to use that way. In such circumstances first appellate court rightly RSA No.972/2004 9 granted a decree for injunction restraining the appellants from causing obstruction to the way, upholding the right of way by easement of necessity. The fact that respondent has claimed a right of way by easement of prescription does not mean that if a right of way by easement of necessity is available, it will be lost by the said plea. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006