IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 RSA.No. 206 of 2011(G) --------------------------------- [AS.NO.91/2004 OF SUB COURT, OTTAPPALAM, OS.NO.23/2002 OF MUNSIFF'S COURT, OTTAPPALAM] .................... APPELLANTS (APPELLANTS/PLAINTIFFS): ------------------------------------------------------------- 1. AMMUKUTTY AMMAL, AGED 74 YEARS, W/O. CHEERANTHODATH, NARIYAMPADATH KUNCHUNNI GUPTHAN, RESIDING AT KADAMPAZHIPURAM AMSOM, KULAKKATTUKURUSSI DESOM, OTTAPALAM TALUK – 678 101. 2. BALAKRISHNAN, AGED 47 YEARS, S/O.AMMUKUTTY AMMAL, -DO-- 678 101. BY ADVS. SRI.T.SETHUMADHAVAN, SRI.PUSHPARAJAN KODOTH, SRI.K.JAYESH MOHANKUMAR, SMT.VANDANA MENON, SMT.ANJU P.NAIR. RESPONDENTS/(RESPONDENTS/DEFENDANTS): ----------------------------------------------------------------------- 1. DEVAKI AMMA, AGED 67 YEARS, W/O.CHEERANTHODATH NARIYAMPADATH LATE KRISHNAN @ BALA GUPTHAN, RESIDING AT KADAMPAZHIPURAM AMSOM AND DESOM, OTTAPALAM TALUK-678 101. 2. RAJESH, AGED 31 YEARS, S/O. DEVAKI AMMA, R/AT -DO-, PIN-678 101. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/05/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 206 OF 2011 =========================== Dated this the 30th day of May,2011 JUDGMENT Plaintiffs in O.S.No.23/2002 on the file of Munsiff Court, Ottapalam are the appellants. Defendants are the respondents. Appellants instituted the suit seeking a decree for a permanent prohibitory injunction in respect of Plaint B schedule property. Plaint A schedule property admittedly belongs to the appellants under Ext.A1 partition deed. Plaint B schedule property is alleged to be the way having a width of 5 feet and a length of 48 feet starting from the southern road and reaching the plaint A schedule property on the north, and lies in between C schedule property allotted to deceased Krishnan and the D schedule property allotted to Balaguptan under Ext.A1. Respondents are the wife and son of R.S.A.206/2011 2 Krishnan to whom C schedule property was allotted. Appellants are claiming a right of way over plaint B schedule property alleging that it is the way available to the plaint A schedule property which was in existence before the partition and continued to be used by the appellants subsequent to the partition. Appellants are claiming a right of way by easement of prescription over the plaint B schedule property contending that plaint B schedule property was set apart as a way to plaint A schedule property and they have been using it openly, peaceably, continuously and without interruption since then as of right and as an easement.Respondents resisted the suit contending that plaint B schedule property does not exists and no way was provided to the A schedule property on the west of the property C schedule property allotted to Krishna and to the east of D schedule under Ext.A1 partition deed and appellants are not having any right over the way over the plaint B schedule property. R.S.A.206/2011 3 2. Learned Munsiff on the evidence of PWs.1 and 2, DW1, Exts.A1 and A2, B1, and C1 to C2(d) dismissed the suit holding that appellants did not establish any right of way through the plaint B schedule property. Appellants challenged the judgment before Sub Court, Ottappalam in A.S.91/2004. Learned Sub Judge on reappreciation of evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. When the appeal was heard finding that as the appellants and respondents are relatives and it would be advantageous to the parties to have an amicable settlement, the case was sent to the Permanent Lok Adalat for settlement, if possible. The records were sent back by the Lok Adalat stating that parties did not appear and their counsel submitted that there is no possibility of settlement. 4. Learned counsel appearing for the appellants was heard in detail thereafter. R.S.A.206/2011 4 5. The argument of the learned counsel is that though Ext.A1 partition deed does not specifically provide that plaint B schedule is a way to the plaint A schedule property, Ext.A1 shows that there is road access to all other properties allotted to the different sharers and Ext.C1 and C2 reports submitted by the Commissioner show that there is a gate put up on the southern end of plaint B schedule property, where it joins the road, and the way proceeds towards the north upto the plaint A schedule property and there are old marks on either side of plaint B schedule property to establish that the way exists since long back and in such circumstances courts below should have been granted the decree as sought for. Learned counsel argued that Ext.B1 assignment deed executed subsequently shows that the western boundary of the property is a way and it fortifies the contentions of the appellants that plaint B schedule property is a way provided to the plaint A schedule property and when there is no other direct road access to R.S.A.206/2011 5 the plaint A schedule property, a decree for injunction should have been granted. 6. Appellants are claiming right over plaint B schedule property alleging that it is the way to the plaint A schedule property allotted under Ext.A1. It is the admitted case that the plaint A schedule property as well as the remaining properties were divided under Ext.A1 partition deed and all the properties were common till 15.10.1982, when the properties were divided under Ext.A1. Under Ext.A1 plaint A schedule property was allotted to appellants, C schedule therein to Krishnan under whom respondents are claiming as his legal heirs, and D schedule property therein to Balaguptan. Ext.A1 does not show that any portion of the common property was left common to be used as a way or to be enjoyed as a common property. The western boundary of C schedule property and the eastern boundary of D schedule property are shown as the common properties divided and not as a way or a property left undivided. Ext.A1 also does R.S.A.206/2011 6 not show that while allotting plaint A schedule property, a way was provided to the plaint A schedule property, from the southern road. Therefore courts below were perfectly right in holding that plaint B schedule property was not allotted to the appellants under Ext.A1 partition deed as a way. 7. Then the question is whether appellants have a right of way over the plaint B schedule property. A right of way by easement of necessity was not claimed. If there is no other access to the plaint A schedule property, as the entire properties were divided under Ext.A1, appellants would definitely could claim a right of way by easement of necessity. But as admitted by PW1 who was examined on behalf of the appellants, when there is a way available to the plaint A schedule property towards the east through the paddy field to reach the road, they cannot claim a right of easement by necessity. Though learned counsel argued that to reach the road through the eastern R.S.A.206/2011 7 way, appellants have to walk 1 ½ kms, a right of way by easement by necessity cannot be claimed on the ground that the alternate way is difficult to walk or it would consume more time. Therefore on the facts and evidence, a right of easement by necessity cannot be claimed. 8. The question is whether appellants are entitled to a right of easement by prescription as claimed by the appellants. The suit was instituted in 2002 before the expiry of 20 years from the date of execution of Ext.A1 partition deed. When the common properties were divided under Ext.A1 only in 1982 and till 15.10.1982 plaint B schedule property was the property of the appellants, they cannot prescribe a right of way by easement by prescription till 15.10.1982. If at all they can claim to use the way as of right and as an easement only after the division of the properties on 15.10.1982. To claim a right of easement by prescription such usage must necessarily be for a period of 20 years. The suit was instituted on R.S.A.206/2011 8 11.1.2002. Hence a right of easement by prescription cannot be claimed. In such circumstances, I find no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006