IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 RSA.No. 466 of 2011() --------------------- AS.35/2009 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.603/2006 of MUNSIFF COURT, NORTH PARAVUR .................... APPELLANT/ APPELLANT/ PLAINTIFF : ------------------------------------------ P.A.KAMALUDHEEN,S/O.ABDULLA, ANCHAMPARATHINKAL,PAAVOOTHARA MURI, PARAVUR VILLAGE NOW RESIDING AT PIDIYEKKAL VEEDU,PUTHUKKALAVATTOM P.O, ELAMAKKARA, PIN - 682 026. BY ADV. SRI.M.M.ABDUL AZIZ, SENIOR ADVOCATE SRI.M.A.ABDUL HAKHIM Adv.M.G.Anon RESPONDENT(S): --------------- 1. P.A.SAIDU MUHAMMED,S/O.ABDULLA, PAVALAKKADA VEEDU,THARINIPPADAM, MANNAM P.O, PARAVOOTHARA MURI, PARAVUR VILLAGE,PIN-683 513. 2. JAMEELA,W/O.SAIDU MUHAMMED, -DO- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 31/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.466 OF 2011 --------------------------------------------- Dated 31st May, 2011 JUDGMENT Plaintiff in O.S.603/2006 on the file of Munsiff court, North Paravur is the appellant. Respondents, the husband and wife, are the defendants. Appellant instituted the suit seeking a decree for declaration of right of way over plaint C schedule property and for a consequential injunction. Plaint A and B schedule properties originally belonged jointly to the appellant and first respondent. They were divided under Ext.A1 partition deed No.2932/2003 of SRO, North Paravur on 5/6/2003. North-eastern portion was allotted as item No.1 to the appellant. It is the plaint A schedule property. The remaining property which lies to the west and south of RSA 466/11 2 plaint A schedule property was allotted to the first respondent. It is the plaint B schedule property. The plaint C schedule property is described as a way, admittedly purchased by the first respondent along with others for access of plaint B schedule property from the southern Paravur-Mattuppuram public road. The appellant contended that there is no other way to the plaint A schedule property except the plaint C schedule way and plaint D schedule property is part of plaint B schedule property, connecting the plaint C schedule way to the house in plaint B schedule property. It is contended that though Ext.A1 partition deed does not provide a right of way, as there is no other way available to the plaint A schedule property which was divided under Ext.A1 partition deed, appellant is entitled to a right of way by RSA 466/11 3 easement of necessity. Appellant sought a declaration of the right of way over plaint D schedule property through B schedule property and a decree for injunction. The declaration sought for is a right of way by easement of necessity, apparent and continuous quasi easement and easement by grant. At the time of evidence the claim was restricted to the right of easement by necessity. 2. Respondent resisted the suit contending that appellant has no right of way over plaint B schedule property or C schedule property and C schedule property was purchased by the first respondent and others and appellant cannot claim any right over the same. It is contended that the way available to the appellant is through the side of the northern thodu, which connects it to public road on the RSA 466/11 4 east and therefore, appellant is not entitled to a decree sought for. 3. Learned Munsiff on the evidence of Pws.1 to 3, Dws.1 and 2, CW.1, Exts.A1 to A3, B1 to B3, C1 and C1(a) dismissed the suit. Appellant challenged the judgment before Additional District court, North Paravur in A.S.35/2009. Learned Additional District 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. 4. Learned counsel appearing for the appellant was heard. 5. Argument of the learned counsel is that courts below did not properly appreciate the evidence. It was pointed out that as is clear from Ext.C1(a) plan, the only way RSA 466/11 5 available to the plaint A schedule property is from the southern public road and it is the plaint C schedule property and on reaching the plaint B schedule property it proceeds further towards A schedule property which lies on the north-eastern corner of plaint B schedule property and Commissioner could find no way either towards the north or towards east and therefore, courts below should have granted a decree for right of way by easement of necessity. Learned counsel argued that C schedule way was purchased by the first defendant before the properties were divided under Ext.A1 and therefore, the way should be for the benefit of all the co-owners and therefore, appellant is entitled to a right of way by easement of necessity over plaint C schedule way. RSA 466/11 6 6. On the facts, appellant cannot claim a right of way by easement of necessity over plaint C schedule property. Properties divided under Ext.A1 partition deed are plaint A and B schedule properties. Appellant has no case that plaint C schedule property forms part of the properties divided under Ext.A1. He has also not pleaded that plaint C schedule property was purchased by the first defendant out of common funds for the benefit of the common property and therefore, it should be available to the appellant. If the case of the appellant is that plaint C schedule property was purchased jointly by them for the benefit of the appellant also, right of way cannot be claimed on the C schedule property as he should be a co-owner. A right of way by easement of necessity can be claimed over RSA 466/11 7 plaint C schedule property only if it forms part of the common property which was split up under Ext.A1 and consequent to the division, plaint A schedule property cannot be used without using the remaining portion of the common property as a way. When admittedly C schedule property does not form part of the common property, right of way by easement of necessity cannot be claimed over plaint C schedule property. More over, plaint shows that claim for right of way is not over C schedule property but only in respect of D schedule property. But at the time of evidence claim was not in respect of D schedule property but C and D schedule properties. But D schedule property as described by the plaint is not the way, which starts from the C schedule property which touches the southern side of plaint B schedule RSA 466/11 8 property and reaches plaint A schedule property. D schedule is described as a way which starts from the southern end of C schedule way and reaches the house of the respondents and not the appellant. Therefore, if the right of way by easement of necessity claimed is over plaint D schedule property, it would lead only upto the house of defendant and not to the plaint A schedule property. Therefore, on that ground also right of way by easement of necessity cannot be granted over the plaint C or D schedule property. In such circumstances, I find no substantial question of law is involved in the appeal, on the facts and circumstances of the case. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.