IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 SA.No. 683 of 2002(F) --------------------- AS.11/2000 of SUB COURT, THIRUVALLA OS.457/1994 of MUNSIFF COURT, THIRUVALLA .................... APPELLANT(S): (APPELLANT/PLAINTIFF): ------------------------------------ P.KAMALAKSHI AMMA, AMBADIYIL VEEDU, PERUMTHURUTHY MURI, KAVUMBHAGAM VILLAGE, THIRUVALLA TALUK. BY ADV. SRI.R.HARIKRISHNAN SRI.N.C.SAJITH SMT.R.REMA SRI.C.HARIKUMAR SRI.SHAMIER MARICKAR RESPONDENT(S): (RESPONDENTS/DEFENDANTS): ---------------------------------------- 1. THOMAS CHERIAN @ PAINUMMOOTTIL KUNJU, PAINUMMOOTTIL, PERUMTHURUTHY MURI, KAVUMBHAGOM VILLAGE, NOW THOMAS CHERIAN,ENGINEER, PAINUMMOOTTIL, ROOM NO.8A, 8TH FLOOR, FLAT NEAR MOHANLAL'S LANE, KAWADIAR ROAD,THIRUVANANTHAPURAM. 2. DR.OOMMEN CHERIAN, PAINUMMOOTTIL, PERUMTHURUTHY MURI, KAVUMBHAGAM VILLAGE, THIRUVALLA TALUK. THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07/10/2009, ALONG WITH SA NO. 716 OF 2002 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.Nos.683 & 716 of 2002 -------------------------------------- Dated this the 7th day of October, 2009. JUDGMENT These Second Appeals arise from common judgment and decree of learned Sub Judge, Thiruvalla in A.S.Nos.11 of 2000 and 12 of 2000 arising from common judgment and decree of learned Munsiff, Thiruvalla in O.S.Nos.457 of 1994 and 514 of 1994. Parties are referred as plaintiffs and defendants as in the trial court for convenience. 2. O.S.No.457 of 1994 is a suit for declaration of right of easement by way of necessity and for prohibitory injunction. Plaint schedule item No.I is the property which plaintiff therein claimed as per assignment deed No.460 of 1981. Plaint schedule item No.II is situated on the immediate south of item No.I and belongs to the defendants. According to the plaintiff, item No.III is a pathway having width of ten feet and length of 120 feet starting from item No.I and reaching Panchayat road going along the eastern boundary of item No.II in north-south direction. Plaintiff claimed that she has no other means of access to item No.I and has got a right of easement by way of interest. Defendants attempted to obstruct the use of the way. Defendant No.2 filed written statement on his own and on behalf of defendant No.2 as power of attorney holder contending that there is no such pathway as alleged and that plaintiff has alternative way along the northern and eastern sides of item No.I. Defendant SA Nos.683 & 716/2002 2 No.1 in O.S.No.457 of 1994 filed O.S.No.457 of 1994 against plaintiff in O.S.No.457 of 1994 and others alleging that they are attempting to trespass into the property belonging to defendant No.1 (plaintiff in O.S.No.514 of 1994). Defendant No.1 also claimed that plaintiff in O.S.No.457 of 1994 and others destroyed the wire fencing he had put up on the boundary of the property which according to the plaintiff in O.S.No.457 of 1994 is including the disputed pathway. Learned Munsiff found that plea of easement by way of necessity is not established and consequently dismissed O.S.No.457 of 1994 and decree for prohibitory injunction was granted in O.S.No.514 of 1994. That common judgment and decree were confirmed by the first appellate court. The common judgment and decree of the first appellate court are under challenge in these Second Appeals. The substantial question of law urged in these appeals is regarding right of easement by way of necessity claimed by plaintiff in O.S.No.457 of 1994 and defendants in O.S.No.514 of 1994. 3. To sustain a plea of easement by way of necessity apart from pleading and proving that there is no other alternative way for access to the dominant tenement it is also to be pleaded and proved that there is severance of tenements which necessitated the right of way. I went through the copy of plaint in O.S.No.457 of 1994 and written statement in O.S.No.514 of 1994 filed by the same person who claimed right of easement by way of necessity and find SA Nos.683 & 716/2002 3 that there is no plea of severance of tenements between the property of plaintiff and defendants. In respect of the properties referred to in the plaint schedule there is no case or evidence that those properties originally belonged to the same owner and by severance it reached plaintiff and the defendants respectively. 4. It is true that advocate commissioner who inspected the properties reported that there is no alternative way along northern and eastern sides of item No.1 belonging to plaintiff in O.S.No.457 of 1994 as pleaded by defendants therein and plaintiff in O.S.No.514 of 1994. But, there is reference to the canal bund on the north of the property of plaintiff which according to the defendants in O.S.No.457 of 1994 and plaintiff in O.S.No.514 of 1994 is being used by plaintiff in O.S.No.457 of 1994. According to the plaintiff in O.S.No.457 of 1994 that canal bund cannot be used during rainy season and reached only upto the engine shed. At any rate, in the absence of plea and proof of severance of tenements even if it is assumed that there is no alternative way for plaintiff in O.S.No.457 of 1994, she cannot sustain a plea of easement by way of necessity. Moreover, I also find that the advocate commissioners could not find any way as described in item No.III in the plaint schedule in O.S.No.457 of 1994, a way having width of ten feet and length of 120 feet. Commissioners have reported that the way described as item No.III is covered by full of grass like the SA Nos.683 & 716/2002 4 rest of the property belonging to the defendants in O.S.No.457 of 1994. It is in these circumstances that courts below found against the claim of easement by way of necessity and granted decree in favour of plaintiff in O.S.No.514 of 1994. The decision entered by the courts below is based on the plea of the parties and the evidence on record and no substantial question of law is involved in these appeals requiring its admission. Resultantly, these Second Appeals fail and are dismissed. THOMAS P.JOSEPH, Judge. cks SA Nos.683 & 716/2002 5 Thomas P.Joseph, J. S.A.Nos.683 & 716 of 2002 JUDGMENT 7th October, 2009.