IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 RSA.No. 636 of 2011() --------------------- AS.147/2003 of SUB COURT, OTTAPPALAM OS.205/1996 of MUNI-MAGI.COURT,PATTAMBI .................... APPELLANTS/ APPELLANTS/ PLAINTiffS 2-4 : ------------------------------------- 1. SANJAY KUMAR,S/O.VAZHAKKATTU THAZHATHETHIL YESODA AMMA,R/AT KALLADIPATTA AMSOM, PEROKKARA DESOM,OTTAPALAM TALUK. 2. YASODA AMMA,D/O.DECEASED CHEERU & AMMU AMMA,IN DO. DO. 3. SARALAKUMARI,D/O.YASODA AMMA, RESIDING IN DO. DO. BY ADV. SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.B.SUBRAMANYAN RESPONDENT(S): RESPONDENTS 2 TO 6 / DEFENDANTS 2 TO 6 : --------------------------------------- 1. VALSALAKUMARI AMMA,D/O.DEVAKI AMMA, R/AT NETHIRIMANGALAM AMSOM,PULACHERIKKARA DESOM, OTTAPALAM TALUK. 2. JAYALAKSHMI AMMA,D/O.DO. R/AT KALLADIPAPTTA AMSOM,PULACHERIKKARA DESOM,OTTAPALAM TALUK. 3. MEENAKSHIKUTTY AMMA,D/O.DO. RESIDING IN DO. DO. 4. KRISHNAKUMAR,S/O.DO. RESIDING IN DO.DO. 5. GOPALAN NAIR,R/AT KAIPPATTE KATTALATH HOUSE,KALLADIPATTA AMSOM & DESOM,OTTAPALAM TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 22/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.636 OF 2011 --------------------------------------------- Dated 22nd June, 2011 JUDGMENT Plaintiffs 2 to 4 in O.S.205/1996 on the file of Munsiff court, Pattambi are the appellants. Defendants are the respondents. Appellants instituted the suit for a declaration of right of way and for fixation of boundary. Plaint A schedule property admittedly belonged to the appellants and plaint B schedule property to the respondents, under Ext.A1 partition deed dated 10/5/1974. Property of the respondents lies to the east of plaint A schedule property. The Panchayat road is running north-south through the eastern boundary of the plaint B schedule property of the respondents. Appellants would RSA 636/11 2 contend that they have a right of way through plaint B schedule property and that was the way which was being used even prior to Ext.A1 partition deed. Even after the partition, they have been using the plaint B schedule way as of right and as an easement, openly and peaceably without interruption and therefore, they have prescribed a right of way over the way. Respondents resisted the suit contending that appellants have not been using the way through plaint B schedule property as of right and as an easement and they are not entitled to the decree sought for. 2. Learned Munsiff on the evidence dismissed the suit finding that appellants did not establish a right of way by easement of prescription through the plaint B schedule property. Appellants challenged judgment before RSA 636/11 3 Sub court, Ottapalam in A.S.147/2003. Learned Sub Judge on re-appreciation of the evidence confirmed the findings of the learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned Senior counsel appearing for the appellants was heard. 4. Argument of the learned Senior counsel is that it was under Ext.A1 partition deed plaint A and B schedule properties were divided and at the time of Ext.A1 partition deed, eastern Panchayat road was in existence and the only way to the plaint A schedule property, on severance of the property, is through the plaint B schedule property as claimed by the appellants and courts below were not justified in holding that appellants did not claim a right of way by easement of RSA 636/11 4 necessity. Learned Senior counsel pointed out that appellants have pleaded in the plaint that even before the partition deed and subsequent to the partition deed the way to the plaint A schedule property was through plaint B schedule property and in such circumstances, findings of the courts below is erroneous. Learned Senior counsel also argued that on the evidence, courts below were not justified in rejecting the claim of right of way by easement of prescription when there is no evidence to prove that appellants have been using a way either towards west or towards further east at the point SSS and PP marked in Ext.C2 plan and hence the right of way should have been granted. 5. On hearing the learned Senior counsel, I do not find any substantial RSA 636/11 5 question of law involved in the appeal. Though it was argued that appellants are entitled to a right of easement by necessity as both plaint A and B schedule properties were the joint properties, before they were divided under Ext.A1 and after the division, plaint A schedule property cannot be enjoyed without using a portion of the plaint B schedule property as a way, as rightly found by the courts below there was no pleading on the ingredients of easement of necessity. Though it was pleaded that properties were divided under Ext.A1 partition deed, there is no pleading that at the time of severance in 1974, plaint A schedule property cannot be enjoyed without using any portion of the plaint B schedule property was a way and no other way was available to the plaint A schedule RSA 636/11 6 property. The plea that the way to the plaint A schedule property, before and after execution of Ext.A1, was through the plaint B schedule property is not sufficient plea to attract the ingredients of right of easement by necessity. Hence, courts below were justified in holding that right of easement by necessity as such was not claimed by the appellants. 6. Then the only question is whether appellants have established a right of easement by prescription. Courts below on the evidence found that plaint B schedule property could be used as a way, only through the gate as noted by the Commissioner and the very existence of the gate establishes that the way is not being used by the appellants as of right. In the light of the evidence on record, findings of the courts below that appellants have not RSA 636/11 7 established a right of way by easement of prescription is also correct. As no substantial question of law is involved in the appeal it is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.