IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 RSA.No. 1388 of 2010() ---------------------- AS.46/2006 of DISTRICT COURT,KOLLAM OS.451/1999 of MUNSIFF COURT, KARUNAGAPPALLY .................... APPELLANT/APPELLANT/DEFENDANT ------------------------------------------ BASHEER, S/O. KADHARKUNJU, AGED 56 YRS, RESIDING AT KANICHERRY MEKKATHIL, CHOLAMURI, PANMANA VILLAGE, PANMANA P.O. BY ADV. SMT.K.G.BINDU SMT.T.S.MAYA (THIYADIL) SMT.PRINCY XAVIER RESPONDENT(S): RESPONDENT/PLAINTIFF ----------------------------------------------- SHIHABUDEEN @ SHIHAB, S/O. ALIYARKUNJU, AGED 52 YEARS, RESIDING AT VILAYILPUTHEN VEEDU, NADUVATHUCHERRY MURI, PANMANA VILLAGE, PANMANA P.O. ADV. SRI.P.B.KRISHNAN SMT.GEETHA P.MENON SRI.P.M.NEELAKANDAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.1388 OF 2010 --------------------------------------------- Dated 28th February, 2011 JUDGMENT Defendant in O.S.451/1999 on the file of Munsiff's Court, Karunagappally is the appellant. Plaintiff is the respondent. Respondent instituted the suit for fixation of boundary. Property of the respondent obtained under Ext.A1 and the property of the appellant obtained under Ext.B1 originally belonged to a common owner. He was having 33 cents of property. Out of that property eastern 1½ cents was sold to DW2, Kochu Nanu. Remaining 31½ cents of property was assigned equally to the appellant under Ext.B1 and to the respondent under Ext.A1. Each of them should therefore get 15.750 cents each. RSA 1388/10 2 Northern boundary of the property covered under Exts.A1 and B1 is admittedly the road. There are shop buildings on the northern side of both the properties covered under Exts.A1 and B1. Respondent sought to fix the boundary separating the eastern property of the appellant obtained under Ext.B1. Appellant resisted the suit contending that boundary has already been fixed by re-survey authorities and it has become final and therefore, a suit for fixation of the boundary is not maintainable. Appellant raised a counter claim contending that appellant has a right of way by easement of necessity over a portion of the property of the respondent. Case is that for formation of a way in between the properties of the appellant and respondent, portion of their properties were surrendered by both the appellant and RSA 1388/10 3 respondent and C schedule way was formed. Learned Munsiff on the evidence found that respondent is entitled to get boundaries fixed. Finding that Commissioner has fixed the boundary, learned Munsiff fixed QR line as the boundary line separating the property of the appellant from the property of the respondent as marked in Ext.C(2) plan. Counter claim was dismissed holding that appellant is not entitled to a right of way by easement of necessity as claimed. Appellant challenged the judgment before District Court, Kollam. Learned Additional District Judge on re-appreciation of the evidence found that the boundary line could only be PO line as marked by the Commissioner in Ext.C2(a) plan. Finding of the learned Munsiff that appellant is not entitled to right of way by easement of necessity was RSA 1388/10 4 confirmed. Appeal was allowed to the extent of modification of the boundary line as PO line as marked in Ext.C2(a) plan. Defendant has filed this appeal challenging the judgment. 2. Learned counsel appearing for the appellant and respondent, who appeared as notice was ordered on the application filed under Section 5 of Limitation Act to condone the delay were heard. 3. Argument of the learned counsel appearing for the appellant is that as survey authorities have fixed the boundaries, courts below should not have granted a decree fixing the boundary. It was argued that when the title deeds show that there was excess extent to the assignor, First Appellate Court was not justified in fixing OP line as the separating boundary. Learned counsel also argued that in RSA 1388/10 5 any case right of way claimed by the appellant in the counter claim should not have been upheld. It was argued that as shop buildings existed on the north, to enable vehicular traffic towards the south, one of the shop building was demolished and C schedule way was formed and while such a way was formed, portion of the property of the appellant and respondent were utilized and therefore, appellant is entitled to get right of way and the counter claim should have been allowed. 4. Learned counsel appearing for the respondent pointed out that when under Exts.A1 and B1 same assignor assigned the property in favour of appellant and respondent as per Exts.A1 and B1 deeds, each of them is entitled to equal extent, and as the assignor had alienated 1½ cents in favour of DW2 earlier the RSA 1388/10 6 balance extent available to the assignor was only 31½ cents and as rightly found by the courts below, appellant is entitled to 15.570 cents and respondent 15.750 cents. In such circumstances, appellant is not entitled to challenge the decree granted. It was argued that the right of way claimed in the counter claim is only based on easement of necessity and when northern boundary of the property obtained by the appellant under Ext.B1 is public road, there is no question of claiming right of easement by necessity and in such circumstances, there is no reason to interfere with the decree. 5. It cannot be disputed that a suit is maintainable to fix the boundary of the property of the respondent based on his title deed. Fact that re-survey boundary is fixed is RSA 1388/10 7 not a ground to deny the relief to the respondent. Learned Additional District Judge appreciated the evidence in the proper perspective and found that when both appellant and respondent are entitled to 15.750 cents each under Exts.A1 and B1, the boundary line separating the eastern property of the appellant obtained under Ext.B1 from the western property of the respondent obtained under Ext.A1 could only be OP line. I find no reason to interfere with that factual finding. 6. Then the only question is whether appellant is entitled to any right of way over any portion of the property of the respondent. The only right of way claimed in the counter claim is by easement of necessity. Even though the properties obtained under Exts.A1 and B1 originally belonged to the same assignor, RSA 1388/10 8 appellant could claim right of easement by necessity over any portion of the property obtained by the respondent under Ext.A1, only if his property cannot be enjoyed without using the other property assigned to the respondent as a way. When it is admitted case that the entire northern boundary of the property obtained under Ext.B1 is public road, in law, appellant is not entitled to claim a right of way by easement of necessity over the property of the respondent. In such circumstances, courts below rightly rejected the right of way claimed by the appellant. Though learned counsel appearing for the appellant argued that by surrender of a portion of the property by the respondent and the appellant a way from the northern public road towards the south was formed and the appellant is entitled to use RSA 1388/10 9 that way, no such claim was set up and the only easement of necessity was set up in the counter claim. Though it was contended that plaint C schedule property was formed by making use of a portion of the property of the appellant and respondent, no acceptable evidence was adduced to establish that there was a surrender of any portion of the property of the respondent for making use of said way. In such circumstances, I find that no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.