IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 SA.No. 904 of 1998(G) --------------------------- AS.161/1996 of PRL.SUB COURT, KOZHIKODE OS.971/1993 of PRL.MUNSIFF COURT KOZHIKODE-I .................... APPELLANT(S): 1ST RESPONDENT/PLAINTIFF ----------------------------------------------------- MATHIYEDATH JANU, W/O. LATE ANDIKUTTY, RESIDING AT KUTTIYEDATH, PERUNTHURUTHI, ELATHUR, KOZHIKODE. BY SRI.M.C.SEN, SENIOR ADVOCATE ADVS.SMT.SHAHNA KARTHIKEYAN SRI.M.P.SREEKRISHNAN RESPONDENT(S):APPELLANTS & 2ND RESPONDENT. ------------------------------------------------------------- 1. KORAPPATTIL SOBHANA, AGED 38, W/O. SUKUMARAN, ELATHUR AMSOM AND DESOM, KOZHIKODE. 2. KORAPPATTILSUKUMARAN, AGED 50, S/O. RARICHAN, DO. 3. SUNIL KUMAR, AGED 27, S/O. UNNI PERAVAN, PONNATTIL HOUSE, ELATHUR VILLAGE, KOZHIKODE. R1 & R2 BY ADVS. SRI.K.P.BALASUBRAMANYAN SRI.T.K.AJITH KUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO.2727/1998 IN S.A. NO.904/1998 DISMISSED 07/04/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE. svs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 904 of 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of April, 2011. JUDGMENT The plaintiff, who was non-suited by the lower appellate court is the appellant. 2. The plaintiff owned plaint A schedule property. He sold a portion of it which is shown as plaint B schedule property which subsequently came to vest with the first defendant. Balance portion excluding B schedule from A schedule is shown as C schedule. D schedule is the pathway, which runs along the southern boundary of B and C schedule properties. Claiming that the defendant who had no manner of right to use any portion of plaint C schedule property, and alleging that they are trying to trespass into the property and make use of C schedule as a means of access, the suit was laid. S.A.904/1998. 2 3. The defendants resisted the suit. They pointed out that there is a way running through C schedule property, which is the only means of access to the plaint B schedule property. As regards plaint D schedule property, it is contended that it is a water logged area and does not provide access to plaint B schedule property. The entry points shown on southern side of the property of the plaintiff is a temporary act done by the plaintiff to make it appear that there is an entrance from the water logged area to plaint C schedule property. They therefore prayed for a dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendants had D.Ws.1 and 2 examined and Exts.B1 to B4 marked. Exts.C1 and C2 are the commission report and plan. The trial court relying on the commission report and Ext.B4 came to the conclusion that there is a pathway shown as D schedule running along S.A.904/1998. 3 the southern boundary of plaint B and C schedule properties and that was the means of access to plaint B schedule property. The trial court was also unable to locate any pathway from the northern side of plaint C schedule property leading to plaint B schedule property as claimed by the defendants. Accordingly the suit was decreed. 5. Defendants 1 and 2 carried the matter in appeal as A.S.161 of 1996 before the Sub Court, Kozhikode. The lower appellate court on a reconsideration of the evidence in the case differed from the view taken by the trial court and held against the plaintiff. The appeal was accordingly allowed and the suit stood dismissed. That brings the plaintiff before this court. 6. Notice is seen issued on the following questions of law: “1. Whether the lower appellate court was correct in holding that an easement by necessity arises by way of presumed grant implied by legal fictions on severance in order to facilitate enjoyment which is otherwise impossible. S.A.904/1998. 4 2. Whether on the facts proved in the case the lower appellate court was justified in holding that the defendant is entitled to a right of way through plaint B schedule property by way of an easement by necessity. 3. Whether the lower appellate court was correct in holding that the 1st defendant is entitled to easement by necessity even though an alternate way is established on the ground that sometimes the way is water logged. documents mentioned in the grounds of appeal not necessary at the admission stage.” 7. Learned counsel appearing for the appellant pointed out that the lower appellate court has erred both in law and on facts in allowing the appeal and in dismissing the suit. It has omitted to notice certain vital aspects including that there is no pathway running from the northern side of plaint C schedule property to plaint B schedule property as claimed by defendants 1 and 2. The lower appellate court was not justified in holding that the southern way shown as D schedule is a water logged area and it S.A.904/1998. 5 cannot be used as a pathway. Learned counsel also drew the attention of this court that even assuming that plaint C schedule was using as a pathway, there is no attempt on the part of the defendants to ascertain the pathway running through C schedule property leading to plaint B schedule property. According to learned counsel, the judgment and decree of the lower appellate court are clearly unsustainable both on facts and in law and need to be interfered with by this court under Section 100 of the Code of Civil Procedure. 8. Learned counsel appearing for the respondents reported no instructions. 9. To say the least, the judgment and decree of the lower appellate court are clearly unsustainable both on law and in facts. As rightly pointed out by the learned counsel for the appellant, the lower appellate court has misdirected itself both on facts and in law and has not appreciated the evidence in the proper perspective. 10. The commissioner in his report has clearly identified plaint A, B and C schedule properties. Plaint B S.A.904/1998. 6 schedule lies on the eastern side of plaint C schedule property and is shown as HCDFE. The commissioner has reported that along the lines HC and FH there is a well laid boundary separating plaint B schedule property from plaint C schedule property. There is nothing in the commission report or in the commission plan to show that there is any way leading to the plaint B schedule property running through plaint C schedule. 11. One must remember that the claim of defendants 1 and 2 that they have a right to use plaint C schedule as a way will have to fail unless it is located. One would have atleast expected defendants 1 and 2 to identify the pathway used by them. They had the obligation to point out the two termini of the pathway they claimed to have been using. It has come out in evidence that the public road on the northern side of plaint C schedule property is of recent origin and therefore the lower appellate court took the view that there must have been a means of access S.A.904/1998. 7 through plaint C schedule property and that must have been the only way to the southern side. 12. The fact that there is a well laid fencing along HC and HF would clearly indicate that there was no way running through plaint C schedule property leading to plaint B schedule property. There is no opening either on the northern side of plaint B schedule or on its western side, which would indicate that any portion of plaint C schedule property is being used as an access to plaint B schedule property. 13. The view of the lower appellate court that plaint D schedule is a water logged area is not fully correct. So also the finding that the said way cannot be used as a pathway is also not correct. One has now to refer to Ext.B4. Ext.B4 is relating to a portion on the southern side of D schedule property. That document shows its northern boundary as 'എടവഴകവട സല ' which would clearly indicate that there is a lane running on the northern side of the S.A.904/1998. 8 property covered under Ext.B4. That could only be plaint D schedule property. 14. Strangely enough, if the appellate court decree is to be sustained, it would mean that defendants 1 and 2 could pass through any portion of plaint C schedule property to make use of it as a way, something which is not contemplated in law. Defendants 1 and 2 having claimed a right to use plaint C schedule property by way of easement by necessity, the burden is on the defendants to establish the existence of the way and its use by them. The lower appellate court has based its conclusion on conjunctures and surmises. It has omitted to note that there is no available material which would indicate that there did exist a way as claimed by them. It has totally disregarded the crucial factor that the B and C schedule properties are separated by well laid fencing and along with that there is no opening leading from B schedule to C schedule. It was the above facts which had persuaded the trial court to hold in favour of the plaintiff. In the light of the above discussion S.A.904/1998. 9 it appears that the decree of the lower appellate court is clearly unsustainable both in law and on facts. It is not only perverse but also unwarranted by the evidence on record calling for interference under Section 100 of the Code of Civil Procedure. Accordingly, this appeal is allowed, the judgment and decree of the lower appellate court are set aside and the judgment and decree of the trial court are restored to file. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.