IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 RSA.No. 573 of 2011() --------------------- AS.72/2008 of ADDL.DISTRICT COURT,KOTTAYAM OS.390/2005 of MUNSIFF COURT, VAIKOM .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- USHA KUMARI, W/O.SASIDHARA PANICKER, AGED 41 YEARS, PADIPPARAMBIL HOUSE, KUDAVECHOOR KERA, VECHOOR VILLAGE, VAIKOM TALUK. BY ADV. SRI.M.NARENDRA KUMAR SRI.P.B.PRADEEP SMT.LAYA SIMON RESPONDENT(S): RESPONDENTS/DEFENDANTS --------------------------------------------------------------------- 1. KARTHIKEYAN @ MANIAPPAN, S/O.VELU, AGED 56 YEARS, RESIDING AT SHELBI BHAVAN FROM KATTITHARA HOUSE, KUDAVECHOOR.P.O., VECHOOR VILLAGE, VAIKOM TALUK. PIN.686 114 2. P.N.RAJASEKHARAN, S/O.KRISHNAN NAIR, AGED 51 YEARS, RESIDING AT PALLIPADU HOUSE, THANNEERMUKKOM.P.O., THANNEERMUKKOM NORTH VILLAGE, CHERTHALA TALUK. Pin.688 526. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 573 OF 2011 =========================== Dated this the 9th day of August,2011 JUDGMENT Plaintiff in O.S.390/2005 on the file of Munsiff Court, Vaikom is the appellant. Defendants are the respondents. Appellant instituted the suit seeking a decree for declaration of right of way over item No.4 of the plaint schedule property contending that she has a right of way by easement of necessity and for a consequential injunction. Item No.1 of the plaint schedule property admittedly belongs to the appellant and item No.2 belongs to the first respondent. Item No.3 was purchased by the second respondent for the way. Item No.4 is alleged to be the way passing through plaint schedule item No.2 and 3 properties reaching item No.1 of the plaint schedule properties. Appellant contended that RSA 573/2011 2 she has a right of way over item No.4 of the plaint schedule way contending that there is no other way to item No.1 of the plaint schedule property except item No.3 and therefore she has a right of way by easement of prescription. 2. Respondents resisted the suit contending that there is no way as described in item No.4 and in any case appellant is not having any right of way through item No.2 or 3 of the plaint schedule properties. 3. Learned Munsiff on the evidence of Pws. 1 and 2, Exts.A1 and A2 and C1 to C3(a) found that item No.4 plaint schedule way does not exist and it is only an imaginary way and in any case a right of easement by necessity cannot be claimed over item No.3 of the plaint schedule properties as it never formed part of item No.1 and 2 of the Plaint schedule properties. The suit was dismissed. 4. Appellant challenged the decree and judgment before District Court, Kottayam in A.S.72/2008. Learned Additional District Judge on reappreciation RSA 573/2011 3 of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 5. Learned counsel appearing for the appellant was heard. 6. On hearing the learned counsel and going through the judgments of the courts below, I do not find any substantial question of law involved in the appeal. 7. The only right of way claimed by the appellant is easement of necessity. In order to claim a right of easement by necessity over item No.2 and 3 of the plaint schedule properties to item No.1 of the plaint schedule properties, all those properties should be owned by a common owner and there should be a splitting of the tenament and consequent to the splitting of the tenament, item No.1 could not be enjoined without using item No.2 and 3 of the plaint schedule properties as a way. It is not disputed that item No.3 originally belonged to Avira Joseph. Second respondent is an RSA 573/2011 4 assignee from Avira Joseph. Though item No.1 and 2 of the plaint schedule properties originally belonged to the family of the first respondent and subsequent to the partition in their family, appellant purchased item No.1 from the sister of the first respondent, when item No.3 of the plaint schedule properties does not form part of the property belonging to the family of the first respondent, and item No.3 was not split up from the remaining properties belonging to the family and instead belong to a third party, a right of way by easement of necessity cannot be claimed for item No.1 over any portion of item No.3 of the plaint schedule properties. In such circumstances, the appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006