IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 SA.No. 450 of 1996() -------------------- AS.40/1993 of SUB COURT, KASARAGOD OS.161/1986 of PRL.MUNSIFF, KASARAGOD .................... APPELLANTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------- 1. KRISHNAN, S/O.KANNAN 2. KUNHIRAMAN, S/O.CHOYI BOTH ARE RESIDING AT KARIMBU VALAPPU, KARADKA VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O. MULLORIA. (DIED) IT IS RECORDED THAT THE 2ND APPELLANT KUNHIRAMAN DIED ON 27.10.03 (AS PER ORDER DATED 3.8.09 IN MEMO C.F. NO.2871/09 DATED 8.6.09) ADDL. APPELLANTS 3 TO 10 ARE IMPLEADED ------------------------------------------------------------------- ADDL.A3. LAXMI “ A4. BALAKRISHNAN “ A5. KAMALAKSHI “ A6. ROHINI “ A7. JANAKI “ A8. SAROJINI “ A9. AMBUJAKSHAN “ A10. SHYLAJA NO.3 IS THE WIFE AND NOS. 4 TO 10 ARE THE CHILDREN OF KUNHIRAMAN: NO.2). ALL ARE RESIDING AT KARIMBU VALAPPU, KARADKA VILLAGE, KASARAGOD TALUK, P.O.MULLERIA. ADDL. A3 TO 10 ARE IMPLEADED AS THE LRS OF DECEASED APPELLANT 2 AS PER ORDER DATED 10.2.11 IN IA 1748/09. BY ADV. SRI.K.G.GOURI SANKAR RAI SA.No. 450 of 1996() ----------------------------- RESPONDENT/APPELLANT/PLAINTIFF: ------------------------------------------------------- KRISHNAN, S/O.KANNAN, RESIDING AT MULLERIA IN KARADKA VILLAGE OF KASARAGOD TALUK AND DISTRICT, P.O. MULLERIA. BY ADV. SRI.P.K.MUHAMMED THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22.2.2011 , ALONG WITH CROSS OBJECTION NO.113/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 CROSS OBJECTION NO.113/2008 in S.A.No. 450 of 1996() ----------------------------------------------------------------------------------- AS.40/1993 of SUB COURT, KASARAGOD OS.161/1986 of PRL.MUNSIFF, KASARAGOD .................... CROSS OBJECTOR/RESPONDENT -------------------------------------------------- KRISHNAN, S/O.KANNAN, RESIDING AT MULLERIA IN KARADKA VILLAGE OF KASARAGOD TALUK, POST MULLERIA. BY ADV. SRI.P.K.MUHAMMED vs RESPONDENTS/APPELLANTS ------------------------------------------ 1. KRISHNAN, S/O.KANNAN, RESIDING AT KARIMBU VALAPPU, KARADUKA VILLAGE, KASARAGOD TALUK AND DISTRICT, P.O. MULLORIA. 2. KUNHIRAMAN, S/O.CHOYI, RESIDING AT KARIMBU VALAPPU, KARADKA VILLAGE, POST MULLERIA, KASARAGOD TALUK. (DIED) THE DEATH OF THE 2ND RESPONDENT KUNHIRAMAN IS RECORDED (AS PER ORDER DATED 3.8.09 IN MEMO C.F. NO.2871/09 DATED 8.6.09) ADDL. RESPONDENTS 3 TO 10 ARE IMPLEADED ------------------------------------------------------------------- ADDL.R3. LAXMI “ R4. BALAKRISHNAN “ R5. KAMALAKSHI “ R6. ROHINI CROSS OBJECTION NO.113/2008 in S.A.No. 450 of 1996() ------------------------------------------------------------------------------------- “ R7. JANAKI “ R8. SAROJINI “ R9. AMBUJAKSHAN “ R10. SHYLAJA NO.3 IS THE WIFE AND NOS. 4 TO 10 ARE THE CHILDREN OF KUNHIRAMAN: NO.2). ALL ARE RESIDING AT KARIMBU VALAPPU, KARADKA VILLAGE, KASARAGOD TALUK, P.O.MULLERIA. ADDL. R3 TO 10 ARE IMPLEADED AS THE LRS OF DECEASED RESPONDENT 2 AS PER ORDER DATED 10.2.11 IN IA 1748/09. BY ADV. SRI.K.G.GOURI SANKAR RAI THIS CROSS OBJECTION NO.113/2008 HAVING BEEN FINALLY HEARD ON 22.2.2011 , ALONG WITH SECOND APPEAL NO.450/1996, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK P.BHAVADASAN, J. ------------------------------------- SA No.450 of 1996-C ------------------------------------- Dated this the day of 22nd February 2011 Judgment Aggrieved by the judgment and decree of the lower appellate court, the defendants in OS No.68/88 before the Sub Court, Kozhikode, have come up in appeal before this court. During the pendency of the appeal, the second appellant died and his legal heirs have been brought on the party array as additional appellants 3 to 10. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit related to the use of a pathway shown as plaint B schedule. The plaintiff claimed to be the owner of plaint A schedule property. According to the plaintiff, the pathway was having a width of 8 feet, which was reduced by the defendants. They obstructed the plaintiff from using the pathway. The plaintiff claimed prescriptive right of easement to use the said pathway. It SA 450/96 2 is also sated that plaint B schedule pathway is the only access to his property. As the defendants were trying to block the pathway, the suit was laid. 3. The defendants resisted the suit. They denied the existence of B schedule pathway through their property. They pointed out that plaint A and B schedule properties were earlier Government lands and they were later assigned in favour of the plaintiff and defendants. According to the defendants, the plaintiff has got other means of access to his property. The defendants, on the basis of the above contentions, prayed for dismissal of the suit. 4. The trial court, on the basis of the above pleadings, raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A10 from the side of the plaintiff. The defendants had DW1 examined and Exts.B1 to B6 marked. The commissioner was examined as CW1 and Exts.C1 and C2 commissioner's report and plan were SA 450/96 3 marked. 5. The trial court, on an evaluation of the evidence, came to the conclusion that the plaintiff cannot claim prescriptive right of easement over the pathway and the issue was found against him. Accordingly, the suit was dismissed. In appeal, the lower appellate court concurred with the findings of the trial court that no prescriptive right of easement is established, but, however, held that plaint B schedule pathway is the only means of access to the plaintiff's property and therefore, granted a decree in respect of plaint B schedule pathway as seen and reported by the commissioner. It is the said judgment and decree that are assailed in this second appeal. 6. Notice is seen issued on the following questions of law raised in the second appeal : A)In a suit where the plaintiff purports to claim an easement of absolute necessity, can the suit be decreed in the absence of a specific pleading and proof of 'absolute necessity'? If not, has not the lower appellate SA 450/96 4 court committed an error of law in granting a decree on the ground of 'absolute necessity'? B)In a suit claiming easement of absolute necessity, if the plaintiff admits the existence of an alternative pathway, can a court grant a decree on the ground of absolute necessity ? If not, has not the lower appellate court committed an error of law in decreeing the suit in spite of the admission of PW1 regarding the existence of an alternative pathway ? C)Has not the lower appellate court committed an error of law in granting a decree by relying on the report of the commissioner, when the said report is proved to be incorrect by the evidence of the plaintiff ? D)Is not the decision of the lower appellate court opposed to the provisions of Section 13 of the Easements Act ? E)On the facts and circumstances of the case, is the decision of the lower appellate court sustainable ? 7. The learned counsel for the appellant pointed out that the lower appellate court has erred in law and on SA 450/96 5 facts in granting reliefs to the plaintiff. The plaint contains allegations setting up a claim of prescriptive right of easement and there are not ingredients of easement of necessity pleaded in the plaint. The learned counsel, referring to Ext.C2 plan, pointed out that the plaintiff has got an opening to the Government land on the north eastern side, through which he can gain access to the outside world. The learned counsel further pointed out that the lower appellate court has erred in law in granting a decree in favour of the plaintiff. 8. There seems to be considerable force in the submission made by the learned counsel for the appellant. On going through the plaint, it is found that what is pleaded is prescriptive easement of right. There is no averment at all regarding the claim for easement by necessity, in the plaint. Nowhere it is stated that as a result of severance of tenements, the plaintiff was constrained to use plaint B schedule pathway for absolute enjoyment of his property. All that is stated is that the property of the defendants is SA 450/96 6 situated near to the property of the plaintiff and nothing more. 9. Easement right is precarious right. Both the courts below have found that what was claimed was prescriptive right of easement and that has not been established by the plaintiff. Merely because there is no other pathway, that does not give a right to the plaintiff to use the pathway which runs through the property of the defendants, to gain access to the outside world. It is well settled that for establishing easement by necessity, there should be severance of tenements and consequently, the necessity to use the servient tenement is an absolute one. The lower appellate court has rightly noticed that there is no claim of severance of tenements. The lower appellate court finds that the plaintiff has got no other way for access to the outside world and therefore, granted a decree in his favour. Law does not recognise such a right. Easement of necessity is covered by Section 13 of the Indian Easement Act. Unless the claim of easement by necessity is proved, SA 450/96 7 he cannot succeed in this regard. The result is that the judgment and decree of the lower appellate court are clearly unsustainable in law and they are liable to be quashed. Accordingly, this appeal is allowed. The judgment and decree of the lower appellate court are set aside and that of the trial court are restored. The suit will stand dismissed. However, there will be no order as to costs. In view of the dismissal of the suit, the cross objection stands dismissed. P.Bhavadasan, Judge sta SA 450/96 8