IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 25TH AUGUST 2011 / 3RD BHADRA 1933 SA.No. 431 of 1999(B) --------------------- AS.46/1999 of SUB COURT, HOSDRUG OS.282/1994 of MUNSIFF COURT, HOSDRUG .................... APPELLANT/ 1ST RESPONDENT/ PLAINTIFF: -------------- * 1. THEKKETHALAKKAL KUNHIKANNAN RESIDING AT THERUVIL PARAMBU, THERU, NILESHWAR VILLAGE AND POST HOSDURG TALUK, KASARAGOD DISTRICT. - DIED. L. Rs IMPLEADED L. Rs OF THE DECEASED SLOE APPELLANT ARE IMPLEADED AS ADDL. APPELLANTS 2 TO 8 AS PER ORDER DT.12.3.01 ON CMP.NO.568/2001 * ADDL. APPELLANTS 2. JANAKI. M., AGED 63, W/O.THEKKETHALAKKAL KUNHIKANNAN RESIDING AT THERUVIL PARAMBU, THERU, NILESHWAR VILLAGE AND POST HOSDURG TALUK, KASARAGOD 3. BALAKRISHNAN N.K. S/O. THEKKETHALAKKAL KNHIKANNAN, RESIDING AT THERUVIL PARAMBU, THERU, NILESHWAR VILLAGE AND POST HOSDURG TALUK, KASARAGOD 4. RAJAN N.K. S/O THEKKETHALAKKAL KUNHIKANNAN RESIDING AT THERUVIL PARAMBU, THERU, NILESHWAR VILLAGE AND POST HOSDURG TALUK, KASARAGOD 5.PREMALATHA N.K., D/O THEKKETHALAKKAL KUNHIKANNAN RESIDING AT THERUVIL PARAMBU, THERU, NILESHWAR VILLAGE AND POST HOSDURG TALUK, KASARAGOD 6. BABY N.K., D/O. THEKKETHALAKKAL KUNHIKANNAN RESIDING AT THERUVIL PARAMBU, THERU, NILESHWAR VILLAGE AND POST HOSDURG TALUK, KASARAGOD 7. LALITHA N.K. D/O THEKKETHALAKKAL KUNHIKANNAN RESIDING AT THERUVIL PARAMBU, THERU, NILESHWAR VILLAGE AND POST HOSDURG TALUK, KASARAGOD SA.No. 431 of 1999(B) 8. BABU.N.K. S/O THEKKETHALAKKAL KUNHIKANNAN RESIDING AT THERUVIL PARAMBU, THERU, NILESHWAR VILLAGE AND POST HOSDURG TALUK, KASARAGOD BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENTS/APPELLANT/ 2ND RESPONDENT/DEFENDANT: --------------- 1.THEKKETHALAKKAL JANAKI, RESIDING AT THERUVIL PARAMBU, THERU, NILESHWAR VILLAGE AND POST HOSDURG TALUK, KASARAGOD 2.THEKKETHALAKKAL MADHAVI ALIAS LAXMI OF DO ADV. SRI.K.SHRIHARI RAO SRI.D.KRISHNA PRASAD SRI.M.HARISHARMA SRI.T.P.ELDHOSE R THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - S.A.No.431 of 1999 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of August , 2011 J U D G M E N T The plaintiff in OS.282/1994 who was unfortunate to suffer a decree at the hands of the lower appellate court is the appellant. 2. The plaintiff claimed to be the absolute owner and in possession of the plaint A schedule items 1 and 2. The first defendant owns the property on the eastern side of the plaint item No.1 and the second defendant owns property on the southern side of the plaint item No.1. In the partition evidenced by Ext.A1, properties were allotted to the defendants. A partition between them in 1972 is evidenced by Ext.B1. It is pointed out that the first defendant has means of the access to her property through the eastern panchayat road and she does not need to use any portion of the plaint items to gain access to the outside world. As far as the second defendant is concerned, she had direct access from the western road. It is averred in :2: S.A.No.431 of 1999 the plaint that, prior to the digging of the well in the property of the plaintiff, that is in plaint A schedule item No.1, plaintiff and the second defendant used to take water from the well belonging to the property of the first defendant which is situated on the eastern side of the plaint A schedule item No.1. A beaten track was thus formed by the continuous use of way for taking water for the respective parties. The plaintiff alleges that defendants are not trying to use a portion of plaint A schdedule item No.1 as the means of access to the road situated on the western side of the plaintiffs property. They have no right to do so. They have other means of access. They are preventing the plaintiff from putting up boundaries along the boundaries of his property. Therefore constrained to lay the suit. 3. The defendants resisted the suit by pointing out that after the partition deed evidenced by Ext.A1 document the properties were allotted as B schedule to Chiruthai Amma and her children including the defendants. And there :3: S.A.No.431 of 1999 were subsequent partition in the year 1970 by which item No.1 of the B schedule plaint was allotted to the first defendants and item No.2 of the B schedule to the second defendant. They denied that the first defendant had means of access to her property from the eastern pathway and according to them their only means of access to the outside world is through the pathway running on the southern side of the plaint A schedule item No.1 belonging to the plaintiff. It is also pointed out that the relatives of the parties reside on the western side and the first defendant used the above mentioned pathway to go to the houses of the relatives. It is pointed out that the first defendant has acquired a prescriptive right of easement to use the pathway claimed by her running through the property of the plaintiff. On the basis these contentions they prayed for a dismissal of the suit. 4. On the above pleadings issues were raised. 5. The Evidence consists of the testimony of PW1 and :4: S.A.No.431 of 1999 Exts. marked as Exts.A1 to A3 from the side of the plaintiff. The defendants examined DWs 1 to 3 and Ext.B1 marked. Exts. C1 to C5 are the commissioner's report and plan. 6. The trial court came to the conclusion that the easement on necessity even assuming that the way alleged by defendant was being used as easement on necessity, on the coming into existence if a road on the eastern side of the property owned by first defendant, to which she has direct access, easement of necessity came to an end. First defendant was unable to prove the prescriptive right of easement. But relief was declined to the plaintiff on the ground that there was no cause of action against the defendants. 7. The plaintiff remained quite thereafter. However the first defendant in the suit took up the matter in appeal as AS. 46/1996. She agitated her claim of prescriptive right of easement and surprisingly enough she was successful in her attempt. That brings the plaintiff before this Court. :5: S.A.No.431 of 1999 8. During the pendency of the appeal, the appellant died and his legal heirs were brought on the party array as additional appellants 2 to 8. It is now represented that the third additional appellant is also no more. 9. Notice is seen issued on the following questions of law:- (1). Whether the lower appellate court was justified in declaring that the defendants have acquired the prescriptive right of way over the plaint schedule property on facts and law. (ii). Whether the finding entered by the Lower Appellate court that the period of user of way as an easement of necessity can be tacked to the period of user under prescriptive right for the purpose of maturing the prescriptive right, can be sustained in law; (iii). Whether the defendants have established by evidence the user of pathway over plaint A schedule property after the assation of easement by necessity. :6: S.A.No.431 of 1999 (iv). Whether the finding of the trial court on issue No.2 was liable to be interfered with at all on facts and law. 10. The learned counsel appearing for the appellant pointed out that lower appellate court has misdirected itself both on facts and in law and seems to have absolutely no idea about the law relating to easements. The learned counsel very vehemently criticized the approach of the lower appellate court. The learned counsel pointed out that even assuming that at the time Ext.A1 partition there had to be a way for access to outside world through the southern portion of plaint A schedule item No.II property for the use of other sharers, after the pathway on the eastern side came into existence to which the first defendant had direct access to her property, it could not said that there are necessity for using the earlier pathway continued. At best, according to the learned counsel the prescriptive right of easement claim can arise only after the easement of necessity ceases. Viewed from the proper perspective the :7: S.A.No.431 of 1999 trial court was justified in declining the claim of prescriptive right of easement raised by the first defendant. The view of the lower appellate court that the claim for prescriptive right of easement and necessity can co exist, has no basis in law. The learned counsel also pointed out that a perusal of the commissioners report and plan will clearly show that the claim of prescriptive right of easement made by the first defendant cannot stand. The learned counsel pointed out that claim of DW1 to the effect that the pathway on the eastern side is used only for bringing manure, fertilizers and other articles and not for the access to the outside world cannot be countenanced. The lower appellate court was clearly in error in granting the decree against the plaintiff. 11. Per contra, the learned counsel for the respondents pointed out that even as admitted by the plaintiff in his evidence the pathway has been in existence from 1947 onwards and there has been continuous use till :8: S.A.No.431 of 1999 date. The learned counsel also pointed out that going by the evidence of PW1 the pathway was in existence even before 1947. The evidence is clear to the effect that the first defendant has been using the pathway running along the southern boundary of the A schedule item No.1 giving access to the panchayat road on the western side. The claim of the prescriptive right of easement is clearly proved and therefore the lower appellate court was right in granting a decree in her favour. 12. After hearing the counsel on both sides and after having going through the records, I am unable to agree with the contentions raised by the counsel for the respondents. Even assuming that there was a pathway even before 1947 the question of easement does not arise because there were no servient element and dominant tenement then to give rise to a claim for easementary right. At best, what could be said is that the claim of easement of necessity arose in 1947 when there was partition in the family. It may be :9: S.A.No.431 of 1999 assumed that the first defendant had a right of way through the A schedule plaint item No.1 to gain access to the panchayat road after the partition in 1947. There was a subsequent partition in the family again in 1970 by which further division was made. Even then it may be assumed that the first defendant had a right of way through the plaintiff's property. But after the pathway on the eastern side had come into existence, it cannot be said that the right of easement of necessity continued to exist even after panchayat road on the eastern side came into existence. It is trite that the easement of necessity ceases when alternate way is available to the claimant however inconvenient it may be. It is not the case of the the first defendant that the pathway on the eastern side cannot be used by her as a matter of right. Her claim that in order to go to the bus stand she has to take a circulation route cannot be accepted when there is an easier way for her to the eastern side to go to the bus stand. Equally :10: S.A.No.431 of 1999 unsustainable is the claim is that, the way on the eastern side is used only for bringing manure, fertilizers and other articles and not for passage to her house which abuts the road on eastern side. 13. One may now have a look at commissioners report and plan. For convenience one may referred to the Ext.C4 plan. Plots A1 and A2 are the plots owned by the plaintiff. Plot B1 is the property belongs to the first defendant and the plotB2, the property belongs to the second defendant. It is true that the commissioner in his plan has shown two beaten tracks running through the property of the plaintiff. It is one of these facts now claimed by the first defendant as of right to use by prescriptive right of easement. In the written statement filed by the defendants, the claim was that a seven links wide pathway exists along southern boundary of the plaintiff's property and that was being used by the first defendant to gain access to the outside world. The commissioners report does not support such a claim at :11: S.A.No.431 of 1999 all. On the other hand, the claim of the plaintiff that initially there was a well, only in the property belonging to the first defendant and he and the second defendant used to go through the plaint A schedule item No.I to the property of the first defendant to take water seems to be more probable. 14. The argument which found favour with the lower appellate court, is that easement of necessity and prescription can co-exist, cannot be accepted in view of the decision reported in Joy Joseph & other Vs.Jose Jacob, Alyar, Thankachan [2010(4) KHC 167]. It has been held therein both the easement of necessity and prescriptive right of easement cannot co- exist. A reading of the Section 13 and Section15 will leave one on no doubt that if at all a claim for prescriptive right of easement is to be made, it can only be after the claim for easement of necessity ceases to exist. The origin, continuation and termination of the two title of easement are entirely different and independent. :12: S.A.No.431 of 1999 Therefore the findings of the lower appellate court that the period during which the pathway was used as an easement of necessity can be tacked on in coming to the conclusion and first defendant acquired a prescriptive right of easement to use the way cannot be upheld. 15. Even going by the evidence furnished by DW1 it could be seen that the use if at all any, is not without interruption. There were obstructions quite often made by the plaintiff by the use of the first defendant of the pathway claimed by her. A bear perusal of Ext.C4 plan would convince anybody that the claim of prescriptive right of easement cannot be true at all. 16. For the above reasons this Court is unable to accept the findings of the lower appellate court that the first defendant has a right to use the pathway shown by the commissioner in the Ext.C4 plan as a way of prescriptive right of easement. This appeal is allowed. The impugned judgment and :13: S.A.No.431 of 1999 decree of the lower appellate court is set aside and that of the trial court is restored. P.BHAVADASAN JUDGE kkj