IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 WP(C).No. 34330 of 2009(O) -------------------------- CMA.10/2008 of PRINCIPAL SUB COURT,ATTINGAL OS.43/2008 of MUNSIFF'S COURT,ATTINGAL .................... PETITIONER(S): ------------------------ 1. BEENAKUMARI, D/O.BHARATHI AMMA, PLAVILA VEEDU, MANIKKAL MURI, MELLANADU VILLAGE. 2. BHARATHI AMMA, D/O.BHARGAVI AMMA, KOODAMONKATTU VEEDU, MELTHONNAKKAL VILLAGE. 3. SASIDHARAN NAIR, S/O.SANKARA PILLAI, PLAVILA VEEDU, MANIKKAL MURI, NELLANADU VILLAGE. BY ADVS. SRI.R.S.KALKURA, SRI.M.S.KALESH, SRI.HARISH GOPINATH, SRI.V.VINAY MENON, SRI.M.AJAY (IRUMPANAM). RESPONDENT(S): ---------------------------- RAJAPPAN PILLAI, S/O.APPUKUTTAN PILLAI, ADARSA BHAVAN, NELLUVILA, EDAKKODU VILLAGE. BY ADV. SRI.G.S.REGHUNATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.34330/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.43/2008 ON THE FILE OF THE MUNSIFF'S COURT, ATTINGAL. P2: COPY OF THE APPLICATION FILED BY THE PETITIONER AS I.A.NO.209/2008. P3: COPY OF THE OBJECTION SUBMITTED BY THE PETITIONERS TO THE I.A.NO.209/2008. P4: COPY OF THE COMMISSION REPORT SUBMITTED BY THE COMMISSIONER IN O.S.NO.43/2008. P5: COPY OF THE TAX RECEIPT NO.0216136 DTD. 30/01/2007. P6: COPY OF THE SALE DEED NO.5331/06 DTD. 27/12/2006 IN FAVOUR OF THE PLAINTIFF EXECUTED BY L.SHAILAJA AND OTHERS. P7: COPY OF THE SETTLEMENT DEED 2577/1969 EXECUTED BY NEELAKANTA PILLAI AND ANOTHER IN FAVOUR OF HIS CHILDREN. P7(A): COPY OF EXT.P7 (SETTLEMENT DEED NO.2577/1969). P8: COPY OF THE ORDER IN I.A.NO.209/2008 IN O.S.NO.43/2008. P9: COPY OF THE MEMORANDUM OF APPEAL IN CMA NO.10/2008 OF THE SUB COURT, ATTINGAL. P10: COPY OF THE JUDGMENT IN CMA NO.10/2008 DTD. 31/10/2009 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, ATTINGAL. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE RELEVANT PAGE OF BASIC TAX REGISTER. R1(B): COPY OF THE MAP. R1(C): COPY OF THE SKETCH. R1(D): COPY OF THE COMMISSION REPORT SUBMITTED BY ADV.V.K.SURESH KUMAR, DTD. 7/11/2008. R1(E): COPY OF THE COMMISSION PLAN. /TRUE COPY/ P.A.TO JUDGE Kss THOMAS. P.JOSEPH, J ---------------------------- W.P.(C) No. 34330 of 2009 ------------------------------------ Dated this the 30th day of August, 2010 J U D G M E N T Defendant Nos. 1 to 3 in O.S.No. 43 of 2008 of the court of learned Munsiff, Attingal are the petitioners herein challenging Ext.P10, judgment of learned Sub Judge, Attingal in CMA No. 10 of 2008. Respondent/plaintiff filed the suit for declaration of his right of easement over plaint C schedule pathway and for prohibitory and mandatory injunction. According to the respondent, plaint A schedule belonged to the respondent/plaintiff, while plaint B schedule Item No.I belonged to defendant No.4 and B schedule Item No.2 belonged to petitioners-defendant Nos. 1 to 3. These properties were settled in favour of predecessors-in- interest of petitioners, defendant No.4 and respondent as per settlement deed No. 2577 of 1969. It is the case of respondent that his predecessors- in-interest were gaining access to plaint A schedule situated towards northern side, from the road on the extreme south through plaint C schedule pathway situated along the eastern side of plaint B schedule items. It is also his case that he has no other means of access to plaint A schedule. When petitioners and defenant No.4 attempted to block the way and put W.P.(C) No. 34330 of 2009 2 up certain constructions he filed the suit and asked for relief as above stated. He filed IA No.209 of 2008 for an order of temporary mandatory injunction to direct petitioners and defendant No.4 to restore plaint C schedule pathway, which according to him has a length of 45 metres and width of 4 links. Petitioners contended that there is no such way as plaint C schedule and that neither respondent nor his predecessors-in- interest used any such way for access to plaint A schedule. Instead, they were gaining access to the plaint A schedule through an alternative pathway along the paddy field on the west of plaint A schedule. Learned Munsiff dismissed I.A.No.209 of 2008 mainly relying on the report of Advocate Commissioner(Ext.C1) that there is no indication of any such pathway as described in plaint C schedule. Respondent took up the matter in appeal. Learned Sub Judge referred to Ext.C1 report and Exts. A3 to A5(marked in appeal) and found that even though Advocate Commissioner had not seen indications of a pathway as claimed by respondent, on the materials on record respondent is entitled to enforce his right of easement by way of necessity and accordingly allowed IA 209 of 2008 which is under challenge in this Writ Petition. Learned counsel for petitioners contend that none of the documents relied W.P.(C) No. 34330 of 2009 3 on by the respondent would show existence of any such way as claimed by him. According to the learned counsel, that no such way could be seen by any of the Commissioners would show that until institution of the suit respondent was using some other way for access to the plaint A schedule. According to the learned counsel, there is a way along paddy field on the west of plaint A schedule and to prove that, petitioners have filed an application for issue of commission in the trial court. Learned counsel states that on the materials on record, appellate court was not justified in setting aside the order of trial court an I.A.No.209/2008 and allowing respondent to set out a pathway which in fact does not exist. Learned counsel suggested that trial court could be directed to expedite disposal of the suit rather than at this stage, respondent being permitted to set out a pathway. Learned counel for respondent contended that the Advocate commissioner inspected the property in the presence of petitioners or their representatives and at no stage, they could point out existence of any alternative way. It is also contended that Ext.A4, copy of lithosketch prepared before settlement deed of the year, 1969 and produced in appeal would show existence of pathway through eastern portion of the property dealt with under the settlement W.P.(C) No. 34330 of 2009 4 deed though not exactly abutting its eastern boundary. According to learned counsel even if it is assumed that there is any alternative way as contended by petitioners, that does not destroy the right of easement by way of necessity unless it is shown that respondent or his predecessor-in-interest had a right to use such alternative way. 2. Learned counsel states that respondent has no other means of access to the plaint A schedule and in the circumstances, appellate court was correct in allowing I.A.No. 209 of 2008. It is pointed out that it is after the trial court dismissed IA no.209/2008 that petitioners have constructed compound wall on the southern boundary of plaint B schedule property extending up to eastern boundary including the disputed plaint C schedule way as well. 3. Going by the averments in the plaint and affidavit in support of the IA No. 209 of 2008, prima facie, it would appear that respondent is claiming a right of easement by way of necessity along eastern portion of plaint B schedule. It is not in dispute that plaint A and B schedule items originally belonged to a common owner who executed settlement deed No. 2577 of 1969 and it is from the respective donees that respondent, petitioners and defendant no.4 acquired right over plaint A and B schedule items. W.P.(C) No. 34330 of 2009 5 In such a situation in the absence of an alternative way which could be used as of right easement by way of necessity would arise. That right would subsist until an alternative way over which the dominant owner has a right to use comes into existence. Advocate Commissioner could not see any alternative way. Nor did petitioners or defendant No.1 point out any alternative way to the commissioners. Commissioners say that respondent has no other access except plaint C Schedule to the plaint A schedule. Hence, question whether there is any alternative way as now claimed by petitioners and assuming so, respondent has any right of access through that way does not arise at this stage. That is a matter which petitioners have to establish in the suit. Ext. R1(c), copy of lithosketch produced by respondents in the trial court and marked in evidence in the appellate court would show existence of a way towards eastern portion of the properties covered by settlement deed though not abutting the eastern boundary. It is based on the materials on record that appellate court found, prima facie a right of easement by way of necessity for respondent. 4. True, in Ext.C1, commissioner has stated that he was not able to find any identifiable way along the east of plaint B schedule. But, I stated above, even if it is assumed that there was W.P.(C) No. 34330 of 2009 6 no user of the disputed way for some time, that by itself cannot extinguish right of easement by way of necessity. Appellate court has referred to Section 14 of the Indian Easement Act to hold in favour of respondent and allow IA No.209/2008. Finding entered by the appellate court is based on materials on record, and considering the law on the point. It is not necessary for this court to interfere at this stage. 5. Learned counsel for petitioners contend that appellate court almost decreed the suit finding that respondent has a right of way by way of necessity over the disputed way. I make it clear that whatever observations made by the learned Sub Judge are for the limited purpose of disposal of IA No. 209/2008. 6. In the circumstances stated above interference under Article 227 of the Constitution is not warranted. Resultantly, this Writ Petition is dismissed. THOMAS. P.JOSEPH, JUDGE ln