IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 RSA.No. 1096 of 2008(E) ---------------------- AS.421/2000 of I ADDL.DISTRICT COURT, THRISSUR OS.115/1998 of MUNSIFF COURT,CHAVAKKAD .................... APPELLANT/APPELLANT/PLAINTIFF:- ----------------------------------------- MOIDUTTY, AGED ABOUT 79 YEARS, S/O. KARUKKALAKATH THAIPARAMBIL HYDRU MUSALIYAR, ERATTUPUZHA DESOM, KADAPPURAM AMSOM, ORUMANAYUR VILLAGE, CHAVAKKAD TALUK. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENT/RESPONDENT/DEFENDANT: ----------------------------------------------- AHAMMED, AGED ABOUT 56 YEARS, S/O. MATHILAKATH VEETTIL PUNNAYIL AAYUB, ERATTUPUZHA DESOM, KADAPPURAM AMSOM, ORUMANAYUR VILLAGE, CHAVAKKAD TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 1096 of 2008 E ========================== Dated this the 28th day of January, 2009. JUDGMENT The plaintiff in O.S. No. 115 of 1998 on the file of the Munsiff's Court, Chavakkad is the appellant in this Second Appeal. The said suit was one for a perpetual injunction restraining the sole defendant therein from obstructing the plaintiff using the plaint B schedule pathway described as having a length of 100 feet and a width of 8 feet so as to reach the plaint A schedule property belonging to the plaintiff. The basis of the right claimed was an easement of necessity. 2. The suit was resisted by the defendant contending inter alia that there was no such way as was shown in the plaint B schedule and that the plaintiff has no right to use the strip of land lying to the south of the defendant's property as a pathway. 3. Both the courts dismissed the suit holding inter alia that a pathway as described in the plaint B schedule was not in existence, that a way starting from the tarred road on the west and running eastwards through the properties of one Kayyunni, R.S.A. No. 1096/2008 : 2 : one M.V. Muhammed Yusuff and thereafter the defendant for their use was in existence, that the plaintiff did not make the said Kayyunni or Muhammed Yusuff party to the suit and that even after the report and plan submitted by the Advocate Commissioner deputed by the trial court, the plaintiff did not amend the plaint B schedule. That apart, the courts below also held that there was no severance of tenements so as to give a cause of action to the plaintiff to claim an easement of necessity falling under Section 13 of the Indian Easements Act, 1882. 4. Even before the lower appellate court, the attempt made by the appellant/plaintiff was to make out a case of severance of his property from the northern property belonging to his brother which is not enough to claim an easement of necessity over the properties of the defendant, Kayyunni and M.V. Mohammed Yusuff referred to above. The suit was, thus, dismissed for non joinder of the said persons as well as on the ground that the plaintiff has failed to make out the claim of easement of necessity as alleged. No question of law, much less, any substantial question of law arises for consideration in this R.S.A. No. 1096/2008 : 3 : Second Appeal. The questions of law formulated in the memorandum of Second Appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. Dated this the 28th day of January, 2009. V. RAMKUMAR, JUDGE. rv R.S.A. No. 1096/2008 : 4 :