IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 SA.No. 905 of 1996(G) ------------------------------- AS.80/1993 of II ADDL.SUB COURT,KOZHIKODE OS.1074/1987 of ADDL.M.C.,KOZHIKODE-II .................... APPELLANT(S): RESPONDENT/ PLAINTIFF ----------------------- *M.K.PADMANABHAN NAIR, AGED 78 YEARS, S/O. CHALATTU KURUP, AMAT HOUSE, VALAYANAD AMSOM, KOMMERI DESOM KOZHIKODE TALUK AND DISTRICT (DIED) *ADDL. A2 & A3 IMPLEADED. 2. K.P.SAROJINI AMMA, W/O. LATE PADMANABHAN NAIR, AMAT HOUSE, VALAYANAD AMSOM, KOMMERI DESOM, KOZHIKODE TALUK AND DISTRICT. 3. K.M.RAMADASAN, S/O. LATE PADMANABHAN NAIR, AMAT HOUSE, VALAYANAD AMSOM, KOMMERI DESOM, KOZHIKODE TALUK AND DISTRICT. ADDL. APPELLANTS 2 & 3 ARE IMPLEADED AS THE LR'S OF DECEASED SOLE APPELLANT AS PER ORDER DTD. 28.6.1999 IN CMP. 1171/1999. BY SRI.K.P.DANDAPANI, SENIOR ADVOCATE BY SMT.SUMATHY DANDAPANI, SENIOR ADVOCATE S.A. NO.905.1996 RESPONDENT(S): APPELLANT/DEFENDANT ------------------------ EDAKKATT YUSUF, S/O. MAMMAD, AGED 58 YEARS, KOVOOR AMSOM, DESOM, KOZHIKODE TALUK. ADV. SRI.A.V.M.SALAHUDIN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2010, THE COURT ON 03/06/2010 DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ------------------------------------- RSA No.905 of 1996 ------------------------------------- Dated 3rd June 2010 Judgment The plaintiff is the appellant. He was non-suited by the lower Appellate Court. 2. The plaintiff claimed to be the absolute owner in possession of Plaint A schedule property having obtained it under Ext.A1 dated 29.06.1961. The defendant is residing on the eastern side of the plaint schedule property. According to the plaintiff, the plaint B schedule pathway is the only means of access to his property. He has stated in the plaint that it falls outside the property owned by the defendant. His grievance is that the defendant is causing hindrance to the use of the pathway by him and therefore, the suit was laid. 3. The defendant resisted the suit. He denied the existence of the pathway itself and pointed out that there is no pathway as alleged by the plaintiff and that the attempt of the plaintiff was to create a pathway through the property of the defendant. The plaintiff had other means of access to his SA 905/96 2 property. He and his brother sold their properties and he now claims a way through the property of the defendant. The plaintiff is not entitled to do so. Based on the above contentions, he prayed for dismissal of the suit. 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimonies of PWs 1 to 3 and documents marked as Exts.A1 to A5 from the side of the plaintiff. The defendant examined DW1 and Commissioner's report and plan were marked as Exts.C1 and C2 respectively. 5. The Trial Court found that there is a way as alleged by the plaintiff and it fell outside the property owned by the defendant. Therefore, reliefs were granted to the plaintiff. The defendant took up the matter in appeal as AS No.80/93 before the District Court, Kozhikode. The lower Appellate Court observed that the plaintiff is claiming a right of easement by necessity to use the pathway and since the plaintiff has not admitted the ownership of the defendant of plaint B schedule pathway, he is not entitled to any relief. Accordingly, the appeal was allowed and the suit was dismissed. That brings the SA 905/96 3 plaintiff before this Court. 6. The only question that arises for consideration in this appeal is whether the lower Appellate Court was justified in dismissing the suit. 7. It is true that in the plaint, it is stated that the plaintiff used the pathway, exercising the right of easement by necessity. But, that has to be read in the context, in which it has been made. In the plaint itself, it has been sufficiently made clear that the plaint B schedule pathway does not form part of the property owned by the defendant and runs along as southern and eastern boundaries of the property of the defendant. He claimed easement by necessity only to show that he has no other means of access to his property. His claim was not based on the strict sense of that term. 8. Now, one may have a look at the Commissioner's report and plan. The Commissioner's plan would show that the yellow shaded portion is a pathway running from north to south and it takes a deviation towards the east. The plan also shows a way running along the eastern boundary of the defendant's property shown as FE which is being used as a pathway and SA 905/96 4 that at the southern end of the defendant's property, it turns towards west and ends at the D point which is the south eastern corner of the plaintiff's property. Even though there is an extension of the way along the entire southern boundary of the plaintiff's property as per the plan, the portion shown as C & D is not being put to use. 9. The learned counsel for the appellant pointed out that the lower Appellate Court was not justified in dismissing the suit. The lower Appellate Court did not understand the case put forward by the plaintiff in the proper perspective and has been carried away by the fact that the plaintiff had laid a claim of easement by necessity. What the plaintiff actually meant was that he had no other way and not that on severance of tenements, he gets a right of way through the property of the defendant. 10. The learned counsel for the respondent, on the other hand, pointed out that the lower Appellate Court was justified in dismissing the suit. According to him, the properties have not been measured and therefore, the plaintiff cannot get a decree in his favour. SA 905/96 5 11. It must be said that the lower Appellate Court has misdirected itself slightly in its approach. It is not the claim of the plaintiff that he claims the right of way through the property of the defendant. The Commissioner's report clearly shows that the pathway the plaintiffs claim, which runs through the southern and eastern side of the defendant's property lies outside the property owned by the defendant. 12. The learned counsel for the respondent contended that in fact, that portion which is shown as a way by the Commissioner on the southern and eastern side, is actually a portion of the defendant's property. 13. There is no basis for the above contention at all. No documents whatsoever are produced by the defendant to substantiate his claim. He also did not seek measurement of his property. 14. It is significant to notice that the Commissioner has mentioned in his report that the way shown by him on the eastern side of the property owned by the defendant is at a higher level whereas the way shown on the southern side is at a lower level at the property owned by the defendant. The fact SA 905/96 6 that the Commissioner has reported that portion was not seen put to use, does not help the defendant. That portion of the pathway runs along the entire southern boundary of the plaint schedule property. There is no claim by anyone else for use of the pathway. As far as the plaintiff is concerned, he needs only an entry from the southern side of the property. 15. As already noticed, the lower Appellate Court was carried away by the plea of easement by necessity and has not considered the other aspects of the case. The Trial Court has, in fact, gone into the question and found that there is a way as alleged by the plaintiff, which is the only means of access to his property. The Court also found that the defendant had caused obstruction to the pathway being used by the plaintiff. It is this aspect, which has not been considered by the lower Appellate Court while considering the appeal. There is no proper approach made by the lower Appellate Court and the matter requires reconsideration at the hands of the lower Appellate Court. 16. In the result, this appeal is allowed and the matter is remanded to the lower Appellate Court for fresh SA 905/96 7 consideration in accordance with law and in the light of what has been stated above. The parties shall appear before the lower Appellate Court on 5th July 2010. The lower Appellate Court may make every endeavour to dispose of the appeal as expeditiously as possible, at any rate, within three months from the date of appearance of the parties before it. P.BHAVADASAN, JUDGE sta SA 905/96 8