IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 RSA.No. 155 of 2007(Y) ---------------------- AS.125/2005 & A.S.126/2005 of ADDL. DISTRICT COURT, PARAVUR OS.377/2001 of MUNSIFF COURT, PARAVUR .................... APPELLANT : APPELLANT/DEFENDANT: ------------------------------------- 1. VISWANATHAN, S/O.AYYAPPAN, MUNDIYATH, THURUTHIYATHU, VELIYATHUNADU DESOM, KARUMALLOOR VILLAGE, PARAVUR TALUK. 2. CHANDHRU, W/O.AYYAPPANKUTTY, CHIRAMOLATH HOUSE, VAYALODAM KARA, VELIYATHUNADU DESOM, KARUMALLOOR VILLAGE, PARAVUR TALUK. 3. JANAKI, W/O.THANKAPPAN, PERAKKATTIL HOUSE, ATHANI KARA, NEDUMBASSERRI VILLAGE, ALUVA TALUK. BY ADV. SRI.G.G.MANOJ RESPONDENT:RESPONDENT/ PLAINTIFF: ---------------------------------------------- SUBHADRA, W/O.PAPPUKUTTY, MUNDIYATH, THURUTHIYATHU BHAGAM, VELIYATHUNADA DESOM, KARUMALLOOR VILLAGE, PARAVUR TALUK. BY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 20/02/2008, ALONG WITH RSA NO. 492 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO. 155 & 492 OF 2007 =========================== Dated this the 20th day of February, 2008 JUDGMENT Plaintiff in O.S.474/2001 who is the first defendant in O.S.377/2001 on the file of Munsiff Court, North Paravur is the appellant. R.S.A.155/2007 was filed challenging the judgment in O.S.377/2001 as modified in A.S.125/05 and R.S.A.492/2007 as against the judgment in O.S.474/2001 on the file of Munsiff Court, North Paravur as confirmed in A.S.126/2005 on the file of Additional District Court, North Paravur. O.S.377/2001 was filed for a declaration of right of easement of way and for permanent and mandatory injunction. O.S.474/2001 was filed by the first defendant and in O.S.377/2001 against the plaintiff in O.S.377/2001 seeking a decree for permanent prohibitory injunction contending that respondent has no right or possession over the plaint schedule property and he attempted to trespass into the R.S.A.155 & 492/2007 2 plaint schedule property. Plaint A schedule property in O.S.377/2001 is admittedly the property belonging to the respondent under Ext.A1 which in turn was obtained from the father of appellant. Plaint B schedule property is the remaining property which belong to the father of appellant which subsequently vested with the appellant under Ext.B1 settlement deed. Plaint C schedule property is the portion of plaint B schedule property which according to respondent is a pathway. According to respondent, on the eastern side of plaint B schedule property is Thuruthiyath Vayaloram Panchayath road and plaint C schedule pathway runs through plaint B schedule property and reaches the panchayath road and plaint C schedule is the only way available to plaint A schedule property and respondent is entitled to a right of way through plaint B schedule property and appellant or other defendants in that suit are not entitled to cause any obstruction. Contending that defendants in that suit caused obstruction to the pathway and R.S.A.155 & 492/2007 3 inspite of a complaint filed before the police the pathway was not restored a decree for mandatory injunction was sought for. Defendants in that suit resisted the claim contending that there is no pathway as claimed or plaint C schedule way and respondent is not having any right of way through plaint B schedule property and the suit is to be dismissed. In O.S.474/2001 appellant raised a similar contention and sought a decree for injunction against the respondent. Respondent claimed a right of way by easement of necessity as pleaded in O.S.377/2001. 2. Learned Munsiff tried both the suits together. On the evidence of Pws.1 to 3, DW1 and DW2 and Exts.A1 to A3, B1 and Ext.C1 to C2(a) learned Munsiff found that plaint A schedule property was separated from plaint B schedule property under Ext.A1 assignment deed and there is no way available to plaint A schedule property except through plaint B schedule property. Learned Munsiff found that respondent has a right of R.S.A.155 & 492/2007 4 easement by necessity over plaint C schedule way and granted a decree in O.S.377/2001 declaring a right of way by easement of necessity over plaint C schedule way and appellants in R.S.A.155/2007 were restrained from interfering with that right mandatory injunction was not granted. O.S.474/2001 was dismissed. Appellant challenged the judgment before District Court, North Paravur in A.S.125/2005 & A.S.126/2005. Learned Additional District Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed A.S.125 of 2005. A.S.126/2005 was partly allowed confirming the finding on right of way by easement of necessity, an option was given to the appellant to provide that way either on the northern or southern extremity having a width of 3 links and a preliminary decree was passed. It is challenged in the second appeals. Defendant in O.S.No.377/2001 have filed R.S.A.155 of 2007 and plaintiff in O.S.474/2001, R.S.A 492/2007. 2. Learned counsel appearing for appellants R.S.A.155 & 492/2007 5 was heard. 3. The argument of learned counsel is that courts below did not properly appreciate the evidence and in the absence of pleading with regard to splitting of the tenement courts below should not have upheld the plea of easement by necessity. It was argued that as there exist alternate way available to plaint A schedule property, respondent is not entitled to a right of way by easement of necessity. 4. On hearing the learned counsel and on going through the judgments of the courts below, I do not find that any substantial question of law involved in the appeal. 5. Plaint A schedule property was split up from the remaining property belonging to deceased Ayyappan. In 1965 under Ext.B1 the remaining properties were settled in favour of the children of Ayyappan and thus appellant is entitled to the plaint B schedule property. Therefore it cannot be contended that there was no splitting up of R.S.A.155 & 492/2007 6 tenements. The courts below on the evidence found that there is no other way available to plaint A schedule property except through plaint B schedule property. Learned counsel argued that there is another alternate way available to the plaint A schedule property. The finding of fact rendered by courts below on appreciation of evidence cannot be interfered in exercise of the powers under section 100 of Code of Civil Procedure. As it is established that there was a splitting of tenement and there is no other way available to the plaint A schedule except plaint B schedule property, courts below rightly granted the right of way by easement of necessity over plaint C schedule way. As plaint C schedule way is a burden on the property, first appellate court granted an option to shift the way at the option of the appellants either to northern extremity or the southern extremity of plaint B schedule property. As respondent has established a right of way by easement of necessity, I do not find any reason to interfere with the discretion R.S.A.155 & 492/2007 7 exercised by the first appellate court. As no substantial question of law is involved in the appeal, appeals are dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006