IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 4TH JANUARY 2011 / 14TH POUSHA 1932 SA.No. 746 of 1999(E) ------------------------------- AS.48/1996 of ADDL. DISTRICT COURT, PARAVUR OS.515/1991 of MUNSIFF COURT, PARAVUR .................... APPELLANT(S): ----------------------- *1. DEVAKI, W/O.VELU, AGED 72 YEARS, KOTTUTHARA VEEDU, KARUMALLOOR KARA, NOW RESIDING AT ANGALIPARAMBIL VEEDU, PATTERIPURAM, ALUVA VILLAGE, ALUVA.(DIED) 2. GANGADHARAN, S/O. VELAYUDHAN, AHED 60 YEARS, KOTTUTHARA VEEDU, KARUMALLOOR KARA, NOW RESIDING AT ANGALIPARAMBIL VEEDU, PATTERIPURAM, ALUVA VILLAGE, ALUVA. 3. RADHAMANI, D/O. NARAYANAN, AGED 41 YEARS, KOTTUTHARA VEEDU, KARUMALLOOR KARA, KARUMALLOOR VILLAGE, PARAVUR TALUK. * ADDL. APPELLANTS R4 TO R6 IMPLEADED ADDL.R4: A.V. DASAN, S/O. DEVAKI, ANJILI PARAMBIL, PATTERIPURAM, ALUVA VILLAGE, ALUVA. ADDL.R45: A.V. SASIDHARAN, S/O. DEVAKI, AGED 55, KOTTUTHARA VEEDU, PATHAMPADI, KARUMALLOOR.P.O. ADDL.R6: A.V. GOPINATHAN, S/O. DEVAKI, AGED 45, ANJILI PARAMBIL, PATTERIPURAM, ALUVA VILLAGE, ALUVA. * ADDL. APPELLANTS 4 TO 6 IMPLEADED AS LEGAL HEIRS OF DECEASED 1ST APPELLANT AS PER ORDER DATED 13/06/2007 IN I.A. NO. 937/2007. BY ADVS. SRI.K.V.JAYACHANDRAN SRI.RAJU V.MATHEW sts S.A.NO.746/1999 RESPONDENT(S): ------------------------ 1. K. JOSHI, S/O. PURUSHOTHAMAN, AGED 68 YEARS, THANTHONNICKAL VEEDU, KARUMALLOOR KARA, KARUMALLOOR VILLAGE, PARAVUR TALUK. 2. PADMAKSHY, W/O. PURUSHOTHAMAN, THANTHONNICKAL VEEDU, KARUMALLOOR KARA, KARUMALLOOR VILLAGE, PARAVUR TALUK. 3. GEETHA, D/O. PURUSHOTHAMAN, THANTHONNICKAL VEEDU, KARUMALLOOR KARA, KARUMALLOR VILLAGE, PARAVUR TALUK. 4. REVATHY, D/O. PURUSHOTHAMAN, THANTHONNICKAL VEEDU,KARUMALLOOR KARA, KARUMALLOOR VILLAGE, PARAVUR TALUK. 5. SUDHA, D/O. PURUSHOTHAMAN, THANTHONNICKAL VEEDU, KARUMALLOOR KARA, KARUMALLOOR VILLAGE, PARAVUR TALUK. 6. SOBHANA, D/O. PURUSHOTHAMAN, THANTHONNICKAL VEEDU, KARUMALLOOR KARA, KARUMALLOOR VILLAGE, PARAVUR TALUK. 7. ANITHA, D/O. PURUSHOTHAMAN, THANTHONNICKAL VEEDU, KARUMALLOOR KARA, KARUMALLOOR VILLAGE, PARAVUR TALUK. 8. PRASAD, S/O. PURUSHOTHAMAN, THANTHONNICKAL VEEDU, KARUMALLOOR KARA, KARUMALLOOR VILLAGE, PARAVUR TALUK. 9. REJITHA, D/O. PURUSHOTHAMAN, THANTHONNICKAL VEEDU, KARUMALLOOR KARA, KARUMALLOOR VILLAGE, PARAVUR TALUK. R1, R2 & R8 BY ADV. SRI.B.RAMACHANDRAN SRI.L.P.ARAVINDAKSHAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/12/2010, THE COURT ON 04/01/2011 DELIVERED THE FOLLOWING: sts S.A. NO. 746/1999 ORDER ON CMP. NO. 2048/1999 & 2216/2000 IN S.A.NO.746/1999 DISMISSED 04/01/2011 SD/- P. BHAVADASAN, JUDGE /TRUE COPY/ P.S.T.JUDGE P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 746 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of January, 2011. JUDGMENT The defendants in O.S. 515 of 1991, who suffered a decree at the hands of the trial court and which was confirmed by the lower appellate court are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The short facts are as follows: Plaint A schedule property belongs to the plaintiffs. Plaint B schedule belongs to the first defendant and C schedule belongs to the second defendant. Plaint B and C schedule properties are situate on the eastern side of the plaintiffs' property. Eastern most property is C schedule. Beyond C schedule is a public road. According to the plaintiffs, to reach the public road, they use a pathway running through plaint B and C schedule properties, which is shown as plaint D schedule property. They claim right to use the said pathway both by way S.A. 746/1999. 2 of easement by necessity and prescription. They also allege that, that is the sole mans of access for them to the outside world. 3. The defendants resisted the suit. They denied the right claimed by the plaintiffs. According to them, there was a partition in their family in 1098 and at that point of time there was no pathway on the eastern side. The first plaintiff is one of the assignees of an executant of Ext.A1 partition deed of 1098. They would contend that the pathway made mention of on the eastern side of C schedule had come into existence only 10 to 13 years ago and therefore the plaintiffs have no manner of right to use any portion of the property owned by the defendants. They also dispute the existence of the way as alleged in the plaint. On the basis of these pleadings, they prayed for a dismissal of the suit. 4. On the above pleadings, necessary issues were raised. The evidence consists of the testimony of P.Ws. 1 and 2 and documents marked as Exts. A1 and A2 from the side of the plaintiffs. The defendants had D.Ws. 1 and 2 examined and Ext.B1 marked. Exts. C1, C1(a), C2 and C2(a) are the commission reports S.A. 746/1999. 3 and plans. The trial court found that there is a way in existence as alleged in the plaint and granted a decree in favour of the plaintiffs declaring their right to use D schedule pathway both by way of easement of necessity and by prescription. 5. The defendants carried the matter in appeal as A.S. 48 of 1996 before the District Court, North Paravur. On an independent evaluation of the materials before it, the lower appellate court concurred with the trial court and dismissed the appeal. 6. The following substantial questions of law are seen raised in the memorandum of second appeal: “i) It is come out in evidence that plaint properties and the adjoining properties were paddy fields and subsequently reclaimed. However there is no evidence as to the time of reclamation. Therefore whether the courts below are justified in granting a declaration of easement of prescription and necessity? ii) The plaintiff as P.W.1, admitted that the road on the east came into existence only 4-5 years prior to 1980. Therefore the respondents do not complete the statutory prescriptive period. Therefore whether the courts below S.A. 746/1999. 4 are justified in granting declaration of easement by prescription? iii) P.W.1 admitted that the road on the east was cut open 4-5 years prior to the take over by the Panchayat in 1980. Moreover there is no mention of any right of way in the Ext.A1 and A2 documents. The alleged severance took place in 1098 M.E. and the plaintiff purchased the property in 1966. Therefore whether the courts below are4 justified in overlooking or ignoring the non-mention of any pathway in Ext.A1 and A2 and granting decree for easement of necessity? iv) Whether the lower appellate court justified in not calling for the records as prayed by the appellants and thereafter dismissing he appeal on the ground of insufficiency of evidence?” 7. Learned counsel appearing for the appellants pointed out that both the courts below have omitted to note the essential factors necessary to attract an easement of necessity and prescription. Learned counsel pointed out that easement by necessity arises on the severance of tenement and its origin cannot be postponed to a later date. Elaborating on the above argument, it was contended that easement of necessity claimed by the plaintiffs had to be in existence at the time of Ext.A1 partition deed, that is in S.A. 746/1999. 5 the year 1098. Learned counsel pointed out that admittedly the first plaintiff is a successor in interest of one of the sharers under that document, and unless his predecessor-in-interest had a right of way by easement of necessity, the plaintiffs cannot claim the said right. As far as prescriptive right of easement is concerned, learned counsel pointed out that there is evidence to show that the road on the eastern side had come into existence only 10 to 15 years ago and the statutory period of enjoyment has not been completed. However, learned counsel pointed out that the plaintiffs, though can plead right to use the pathway by way of easement of necessity and prescription, at the time of evidence they have to elect one of them. In this case, they have not done so. On that ground also, they have to lose. In support of the above contention, learned counsel relied on the decisions reported in Periyanna Gounder v. Komarasami (2000(1) MLJ 431) and Ibrahimkutty v. Abdul Rahumankunju (1992(2) KLT 775). Learned counsel also complained that the lower appellate court has not adverted to these aspects and has merely gone by the fact that since there is a pathway, the plaintiffs are entitled to use the same. Accordingly, it is urged that there has not been a proper consideration of the law applicable to the facts of the S.A. 746/1999. 6 case and that has resulted in miscarriage of justice. 8. Per contra, learned counsel appearing for the respondents contended that both the courts below have concurrently found the existence of the pathway and its use by the plaintiffs. It has also been found by the courts below that that was the only means of access to the outside world. Commission reports also indicate the existence of the pathway and its use by the plaintiffs. These are sufficient materials, according to the learned counsel, to grant a decree in favour of the plaintiffs and that is precisely what the court below has done. According to the learned counsel, no substantial question of law arises for consideration in this appeal and it is only to be dismissed. 9. In the nature of the findings and conclusion drawn by the trial court and by the lower appellate court, it may not be possible to say that no substantial question of law arises for consideration. The trial court has held that the plaintiffs are entitled to use the pathway both by easement of necessity and prescription. Obviously this cannot be correct. The lower appellate court has not adverted to S.A. 746/1999. 7 this question at all and since the trial court has found the existence of the way and its use by the plaintiffs, the appellate court felt that, that would be sufficient. Both the courts below have not addressed themselves to the question regarding the origin of the two types of easement and the distinction between them, so also the nature of right others had accrued to the plaintiffs. 10. As per Ext.A1 document dated 17.3.1908 four persons divided the properties among themselves. They are Velayudhan, Ayyappan, Raman and Anchakkan. Velayudhan was given A schedule property, Ayyappan B schedule property, Raman C schedule property and Anchakkan D schedule property. The plaintiffs in the suit are the successors in interest of Ayyappan, who has given B schedule property as per Ext.A1. The defendants are the successors in interest of Velayudhan and Anchakkan. If one looks at the boundary of the properties dealt with under Ext.A1 document, it can be seen that the entire property was surrounded by paddy fields. There is nothing to indicate that any portion of the property dealt with under Ext.A1 was abutting a pathway on the eastern side. Ext.A2 is the document by which the plaintiffs came S.A. 746/1999. 8 into possession of the property. The extent is about 20 cents. One may note the boundaries shown in Ext.A2. They are:- east - the property belonging to Velayudhan; south - the property belonging to Anchakkan; west paddy field and - north - paddy field. There is absolutely no mention of any pathway in Ext.A2, which enables the vendee under Ext.A2 to make use of that pathway. It is significant to notice that the prior document mentioned in Ext.A2 is neither produced nor has the vendor of Ext.A2 been examined. One has to notice that Ext.B1 document is dated 2.3.1983. That is a partition deed among the legal heirs of Valayudhan, who obtained the property under Ext.A1. It is significant to notice that this document provides for a way for access to the shares given to various sharers. It is for the first time in this document, we find the mentioning of existence of a way on the eastern side of the property dealt with under Ext.B1. 11. One may at this juncture refer to the oral evidence of the plaintiffs. The second plaintiff was examined as P.W.1. In chief examination he speaks about the case as put forward in the plaint. He says that ever since the purchase, they have been using D S.A. 746/1999. 9 schedule property as the means of access to the outside world. In cross-examination, he admits that there is no mention of the D schedule pathway in any of the documents produced by the plaintiffs. He also says that four persons had properties on the southern side of plaint A schedule property, none of them used the disputed pathway. The road on the eastern side, to which access is now claimed by the plaintiffs through the property of the defendants and which is known as MLA road was handed over to the Panchayat in 1980. In no less terms he says that before the way was handed over to the Panchayat, about 4-5 years prior to that, people of the locality had cut open that way. He would say that the properties had been surrendered for the said purpose. In cross examination he admits that at the time of surrender, the properties so surrendered were paddy lands. It has come out in evidence that there was a road passing along on the western side of their property with two or three other properties in between. 12. P.W.2 was examined to support the plaintiffs. He is a resident of the locality. It is interesting to note that this witness in chief examination itself says that prior to the coming into existence of S.A. 746/1999. 10 the road, there was a varamba there. He also says that MLA road was formed by people surrendering the property and the inhabitants of the locality cut open a way. At that time, even according to him, the properties were paddy lands, and there were ridges in those paddy lands. 13. From the documentary evidence produced as well as from the oral evidence, one fact becomes clear that at the time of execution of Ext.A1 there was no way on the eastern side of the properties dealt with under Ext.A1. In fact the evidence would suggest that the property dealt with under Ext.A1 was surrounded by paddy lands. In all probability, people might have been walking along the ridges of the paddy land to get access to the outside world. There is absolute want of evidence in this case to show that Ayyappan, who obtained property under Ext.A1, had made use of any portion of the property obtained by the other sharers as a pathway to get access to the outside world. The mere fact that at a later stage a pathway had come into existence does not enable the plaintiffs to claim right to use the pathway by way of easement of necessity. S.A. 746/1999. 11 14. Easement of necessity would arise only at the time of severance of tenements. It does not depend upon reasonableness or convenience. The necessity should be such that the dominant tenement cannot be enjoyed at all without burdening the servient the easement. The existence of alternate way militates against the claim of easement of necessity. In the decision reported in Maniyan Krishnan v. Nanukuttan (1986 KLT 203), it was held as follows: “Easement of necessity arises on the severance of tenements. The rationale or the legal basis of this king of easement can be traced to the creation of an implied grant. Really, easement of necessity is an easement, which under particular circumstances the law creates by virtue of the doctrine of implied grant to meet the necessity of a particular case. It is an easement which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one without which that tenement cannot be used at all. An easement of necessity arises where normally both the dominant and servient tenement have been in common ownership so that the creation of an easement by implication of law may be said to be the outcome of the former jointness of the two tenements. S.A. 746/1999. 12 the disposition which causes a cessation of the common ownership that gives rise to the creation of an easement, may be of either tenement, or a simultaneous disposition of both tenements. The plaintiff has no case that both the servient and dominant tenements were in common ownership and that by a disposition there was cessation of that common ownership. In view of this fundamental fact, the plaintiff cannot sustain the claim of an easement of necessity.” 15. Learned counsel appearing for the respondents was unable to point out that at the time of execution of Ext.A1 document, there was a way passing through the property owned by the predecessor-in-interest of the defendants, which, the predecessor-in-interest of the plaintiffs had made use of to gain access to the way on the eastern side. A close reading of the evidence would indicate that the pathway on the eastern side now mentioned in the plaint came into existence long after Ext.A1 had been executed. May be that, the plaintiffs have no other means of access to the outside world. But that is not a ground to allow use of any portion of the property of the defendants as a pathway. This vital aspect has not been considered by both the courts. S.A. 746/1999. 13 16. Apart from the above facts, as rightly pointed out by the learned counsel for the appellants, the claim of easement of necessity and prescription are made in the plaint. A reading of paragraph 3 of the plaint would indicate this aspect. True, in paragraph 3 of the plaint easement of necessity is specifically mentioned and there is no mention of easement by prescription. But the ingredients to attract easement by prescription are specifically mentioned in the said paragraph. It is also significant to notice that the trial court considered the issue on that basis. It is interesting to note that in the relief portion all that is stated is that a decree may be granted declaring that the plaintiffs have a right of easement through plaint D schedule for having access to plaint A schedule property. The nature of the easement right is not specifically seen mentioned therein. 17. In the decision reported in Periyanna Gounder's case (supra) , it was held as follows: “No doubt, it is true that in one paragraph of the plaint it is averred claiming easementary right both both S.A. 746/1999. 14 by prescription and necessity. The very claim by prescription and necessity is itself inconsistent. An easement of necessity means an easement without which the property cannot be used at all. Mere convenience is not the test of an easement of necessity. A man cannot acquire a right of way as an easement of necessity, if he has got other means of access to his land, however, more inconvenient it may be than by passing over the land of neighbours.” 18. In the decision reported in Ibrahimkutty's case (supra), almost an identical issue was considered. It was held as follows: “Ordinarily a court can find a case and decree the suit only on the basis of the pleadings of the parties. In case, where the claim is for an easement right, it is all the more necessary that the pleadings should be specific and precise. There is reason therefor. 'Easement' is a precarious and special right. The right of easement is one which a person claims over a land which is not his own. Since the right of easement is a precarious and special right claimed over the land of another, it is highly essential that the pleadings should be precise. On a careful reading of the plaint in the case, it should be S.A. 746/1999. 15 stated that he plaintiffs did not specifically plead the nature of the easement claimed by them. Indeed, the issue framed in the case is also of a general and vague nature. that is why the trial court found in favour of easement of necessity and also by prescription. the lower appellate court found customary easement and easement by prescription. The qualitative and quantitative requirement for the different kinds of easements are to a great extent mutually exclusive. That is the reason why the courts have always insisted that whenever a right of easement is claimed, the pleadings should be precise and clear and not vague.” 19. It therefore follows that a claim of easement of necessity and prescription cannot co-exist. The origin of easement of necessity is on severance of tenements, while easement by prescription originates from express or implied grant. True, easement of necessity is also an implied grant. But that is a statutory right granted to the owner of the dominant tenement. The volition of the servient tenement holder may not be very relevant in the case of easement of necessity except for setting out the pathway which the dominant tenement holder is entitled to make use of. If one goes deep into the matter, in cases where both easement of S.A. 746/1999. 16 necessity and prescription are claimed, it can be seen that easement by prescription commences only when easement of necessity ends. Whatever that be, the trial court was not justified in holding that the plaintiffs are entitled to have a right to use the way both by easement of necessity and prescription. 20. As per Section 41 of the Indian Easements Act, easement of necessity comes to an end in certain circumstances. Those aspects do not affect the claim of prescriptive right of easement. As already stated, the origin, nature, continuance and termination of the two types of easement are totally different. 21. At the risk of repetition, one may notice that easement of necessity has to necessarily arise at the time of severance. It cannot be postponed to a later date. If on the date of severance of tenement, it is found that dominant tenement holder did not have to use or did not use any portion of the property of the servient tenement owner, the dominant tenement owner at a later stage cannot claim a right of way as easement of necessity. Merely S.A. 746/1999. 17 because there may not be a way for the plaintiffs to reach the outside world is not a ground to grant decree in their favour. 22. These vital aspects have been omitted to be noticed by the court below. The lower appellate court also went wrong in not considering whether there is sufficient evidence to show that the claim set up by plaintiffs has been established. One may recall here that going by the evidence the MLA road has came into existence about 10-15 years ago and according to P.W.2, prior to that there was only a ridge, which was being used as a way. It is well settled that walking along the ridges of a paddy field does not confer a right on any person. It is also significant to notice that the Commissioner in his report has not assessed the age of the way, which he claims to have seen running through the property of the defendants. These factors, which are fatal, have not been considered by the lower appellate court. It is felt that a reconsideration of the order is necessary at the hands of the lower appellate court. 23. Hence this appeal is allowed, the impugned judgment and decree are set aside and the matter is remanded to the lower S.A. 746/1999. 18 appellate court for fresh disposal in accordance with law and in the light of what has been stated above. The parties shall appear before the court below on 28.01.2011. The lower appellate court may make every endeavour to dispose of the suit as expeditiously as possible, at any rate, within six months from the date of receipt of a copy of this judgment. Office shall return the records forthwith. P. BHAVADASAN, JUDGE sb.