IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 RSA.No. 324 of 2009 --------------------------------- AS.43/2007 of SUB COURT, VADAKARA OS.109/2000 of MUNSIFF COURT, NADAPURAM .................... APPELLANT/APPELLANT/PLAINTIFF: NADUKUNIYIL RAJAN, S/O.KANARAN, AGED 40 YEARS, BUSINESS, KALLUNIRAMMAL, KAVILUMPARA AMSOM, DESOM, VATAKARA TALUK, KOZHIKODE DIST. BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA RESPONDENT/RESPONDENT/DEFENDANT: THOOLIYAT HARIDASAN, S/O.RAMAN, AGED 39, BUSINESS, KALANGOTTUMMAL, KAVILUMPARA AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- R.S.A.No.324 of 2009 -------------------------- JUDGMENT The plaintiff in O.S.No.109/00 on the file of the Munsiff's Court, Nadapuram, who has lost his case concurrently in both the courts below, is the appellant in this Regular Second Appeal. The suit has been filed by the appellant/plaintiff for a decree of permanent prohibitory injunction restraining the respondent/defendant from obstructing his use of the staircase through the middle of plaint B schedule shop rooms for entry to the upstair portion of plaint B schedule rooms from where he can have access to the upstair portion of plaint A schedule shop room belonging to him. 2. The short facts of the case necessary for disposal of this Regular Second Appeal are that plaint A schedule property, which is a shop room covering an extent of ¼ cent belongs to the plaintiff, he having acquired it under Exhibit A1. RSA 324/09 2 Plaint B schedule takes in two shop rooms on the west of plaint A schedule shop room and those belonged to one Ammad. Those two shop rooms were assigned by Ammad to one Mariyam as per Exhibits B1 and B2 and she in turn assigned those shop rooms to the respondent/defendant. In between the two shop rooms in plaint B schedule, there is a staircase to go to the upstair portion of plaint B schedule, from which the appellant/plaintiff can have access to the upstair portion of plaint A schedule shop room. 3. It is the case of the appellant/plaintiff that the shop rooms in plaint B schedule and the A schedule shop room, as seen at present, is a new construction effected jointly by the appellant/ plaintiff and Ammad, the prior owner of plaint B schedule shop rooms, after demolishing the shop rooms which originally existed in that place; that the new construction, however, was effected in such a way that plaint A schedule shop room and the shop RSA 324/09 3 rooms in plaint B schedule, which are just on the west of plaint A schedule shop room, are separated by a common wall and the upstair rooms above the plaint B schedule shop rooms and plaint A schedule shop room also is so separated by a common wall and that all these rooms, both in the ground floor and in the first floor, have common roof as was put up jointly by the appellant/plaintiff and Ammad. It is the further case of the appellant/plaintiff that it was so put up on the understanding that the staircase in between the two shop rooms in plaint B schedule can be used also by the appellant/ plaintiff and that the respondent/defendant, who is the transferee from the assignee of Ammad of those two shop rooms, are objecting to the use of the staircase by him. It is also submitted by counsel for the appellant that apart from an oral understanding between the appellant/plaintiff and Ammad, there is no agreement entered into between them providing a right of entry to the upstair RSA 324/09 4 portion through the staircase in between the two shop rooms in plaint B schedule. What the appellant/plaintiff wants is to have the understanding between himself and Ammad to be enforced against the transferee of Ammad as well, when Ammad has assigned plaint B schedule shop rooms without making any provision for the appellant/plaintiff to have continued access to the upstair portion using the staircase in between the two shop rooms in plaint B schedule. Learned counsel contends that it is an easement of necessity and that therefore, that right of easement be protected. 4. In order to claim easement of necessity, the devolution of rights, both for the appellant/ plaintiff and for the respondent/defendant should be from a common owner. In the instant case, no such devolution of right is there, except that the appellant/plaintiff and Ammad had some understanding, if at all, to enable the appellant/plaintiff to use RSA 324/09 5 the staircase in between the two shop rooms in plaint B schedule. The transferees are not bound by that understanding and the appellant/plaintiff cannot have any right to be enforced against the transferees of Ammad to have the use of the staircase, which is in between the two shop rooms in plaint B schedule, to go to the upstair portion of plaint B schedule shop rooms and then to have entry into the upstair portion of plaint A schedule shop room. There is absolutely no merit in this Regular Second Appeal. No question of law and much less, any substantial question of law arises for consideration by this Court in this Regular Second Appeal. In the result, I dismiss this Regular Second Appeal in limine refusing admission. 2nd April, 2009 (K.P.Balachandran, Judge) tkv