IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 RSA.NO. 1038 OF 2004() ------------------ AS.211/1998 OF ADDL. DISTRICT COURT (SPL.COURT), KOTTAYAM OS.403/1992 OF PRL.M.C., KOTTAYAM .................... APPELLANT/APPELLANT/PLAINTIFF: -------------------------------------------------- MUHAMMED BHASHEER, S/O. MOITHEEN KUNJU, PAKKATHU PURAYIDATHIL, MODIMATHA KARA, KOTTAYAM VILLAGE, KOTTAYM TALUK, KOTTAYAM DIST. BY ADV. SRI.T.I.ABDUL SALAM RESPONDENT(S): RESPONDENTS/DEFENDANTS: ------------------------------------------------------------------ 1. E.SHAHUL HAMEED, MULLA COLLEGE, NEAR JAJ JAMA MASJID, T.B. ROAD, KOTTAYAM. 2. MRS.SHAMEEN ANSARI, W/O. ANSARI, MULLA COTTAGE, T.B.ROAD, KOTTAYAM. 3. MRS.VAHEETHA BIJILI, W/O. BIJILI, MULLA COTTAGE, T.B.ROAD, KOTTAYAM. 4. MRS. SHAJEENA KALAM, W/O. KALAM, MULLA COTTAGE, T.B.ROAD, KOTTAYAM. ADV. SRI.RAJEEV V.KURUP THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.1038 of 2004 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 17th day of February, 2010 J U D G M E N T --------------------- Plaintiff in O.S. No.403 of 1992 of the court of learned Prl. Munsiff, Kottayam is the appellant before me. He is aggrieved though courts below granted a decree in part while prayer for prohibitory injunction concerning the disputed way towards west of his property for access to the TB road was not upheld by the courts below. 2. Suit property as well as the adjacent properties originally belonged to Fakkar Maitheen Kunju, father of appellant and on his death the properties devolved on his legal representatives including the appellant. Mother of appellant released her right to the children as per document No.4365 of 1124 M.E. Thereafter there was a partition among the children as per document No.2526 of 1968 in which the suit property - 26.250 cents was allotted to the appellant as B schedule in the partition deed. An extent of 24 cents on the west and another 3½ cents towards the north-east of the suit property was allotted to R.S.A. No.1038 of 2004 -: 2 :- appellant's sister, the late Hariffabeevi. Respondents are the legal representatives of the said Hariffabeevi. Contention of appellant is that at the time of partition as per document No.2526 of 1968 a pathway was provided towards west of the suit property along north of 24 cents allotted to Hariffabeevi so as to reach TB road on the further west. He prayed for decree for injunction against interference with his using that way and for fixation of western boundary of the suit property. Respondents denied that there was any such way provided in the partition deed towards west of the suit property for access to the TB road. According to them the way was provided only for the sharer of 24 cents for access to the TB road on the further west. It is also their contention that way provided for the appellant was towards east from the suit property leading to the ML road on the further east. Learned Munsiff found that there is no pathway provided in partition deed No.2526 of 1968 leading from the suit property towards west to reach TB road though a way was provided for the sharer of 24 cents (Hariffabeevi) on the west of suit property for such access. Trial court also found that the way provided for the appellant is towards east from the suit property to reach ML road on the further east. Trial court granted a decree for R.S.A. No.1038 of 2004 -: 3 :- fixation of boundary while refusing injunction with reference to the disputed way. First appellate court modified the judgment and decree of the trail court to the extent that injunction was granted in favour of the appellant against trespassing into the suit property. But no relief was granted in respect of the disputed pathway towards west from the suit property. Hence the Second Appeal urging by way of substantial question of law whether appellant is entitled to right of access towards west from the suit property in law and on facts of the case. Learned counsel for appellant would contend that courts below were not correct in holding against existence of way towards west from the suit property. It is also contended that at any rate appellant is entitled to claim right of way towards west under Section 13(b) of the Indian Easements Act. 3. Though Advocate Commissioner had inspected the suit properties immediately after filing of the suit no way leading from the suit property towards west and reaching the TB road on the further west could be noticed. On the other hand it came out in evidence that towards north of the 24 cents allotted to Hariffabeevi her children have constructed a lodge building and for their access there was a way from that part of the property towards further west. R.S.A. No.1038 of 2004 -: 4 :- Evidence on record do not show that there was any way as on the date of suit leading from the suit property to reach TB road. For a claim of quasi easement to be sustained there must be a formed road at the time of severance of tenements be it by assignment or partition (See Leela v. Ambujakshy - 1989 [2] KLT 142 & Kochan Ramanathan v. Kochan Natarajan – 1990[2] KLJ 617). In this case evidence on record does not support claim of appellant that there was any such formed way. Therefore appellant cannot successfully raise a claim of quasi easement over the disputed way. 4. So far as easement by way of necessity is concerned that plea can be raised only when such a way is absolutely necessary for enjoyment of the property. It has come in evidence and not disputed also that as per partition deed No.2526 of 1968 a way has been provided and it is still in the use of the appellant, originating from the suit property, going towards east and reaching the ML road. It has come in evidence that through ML road appellant can gain access to the TB road as well. It is not as if the disputed way is absolutely necessary for enjoyment of the suit property. In the circumstances claim of easement over the disputed R.S.A. No.1038 of 2004 -: 5 :- way towards west cannot be accepted. On going through the judgments under challenge and hearing counsel I do not find any substantial question of law involved in the Second Appeal requiring a decision. Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv