This regular second appeal challenged the decree granting an easement right of way by necessity. The High Court found the appellants failed to prove the existence of alternative access routes, allowing the lower courts' findings to stand and dismissing the appeal.
The Regular Second Appeal was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
FRIDAY, THE 18TH DAY OF NOVEMBER 2016/27TH KARTHIKA, 1938
RSA.No. 1087 of 2016 ()
AGAINST THE JUDGMENT IN AS 235/2012 of ADDL. DISTRICT COURT (SPL.), KOTTAYAM DATED 13-07-2016
AGAINST THE JUDGMENT IN OS 174/2011 of MUNSIFF COURT, VAIKOM DATED 27-07-2012
APPELLANT(S)/APPELLANTS/DEFENDANTS:
BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.S.NITHIN (ANCHAL)
RESPONDENT(S)/RESPONDENT/PLAINTIFF:
MATHEW S/O.MATHAI, AGED 66 YEARS, RESIDING AT CHINGARANKULANGARA HOUSE, IRUMPAYAM P.O., VELLOOR VILLAGE, VAIKOM TALUK, KOTTAYAM - 686 605.
R1 BY ADV. SRI.S.VISHNU (ARIKKATTIL) (CAVEATOR)
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K. HARILAL, J.
R.S.A. No.1087 of 2016
Dated this the 18th day of November, 2016
J U D G M E N T
~ ~ ~ ~ ~ ~ ~ ~ ~
The appellants are the defendants in O.S.
No.174/2011 on the files of the Munsiff's Court, Vaikom as well as the appellants in A.S. No.235/2012 on the files of the Additional District Court-II (Special), Kottayam. The aforesaid original suit is one for declaration of an easement right of way by necessity and consequential prohibitory injunction restraining the defendants from obstructing the peaceful enjoyment of item No.4 pathway, which passes through item Nos.2 and 3 properties, which belong to the defendants. It is the specific case of the plaintiff that item
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Nos.1, 2 and 3 originally belong to one Mohammed and thereafter, severance of property was effected by sale deeds in favour of the plaintiff's father and the defendants' predecessors. From the very beginning of the severance of property, the plaintiff and his predecessors have been using item No.4 pathway openly, uninterruptedly and continuously and as of right for the egress and ingress to plaint schedule item No.1 property from the public way, which lies on the southern side of the plaint item Nos.2 and 3. Recently, the 1st defendant has executed a sale deed with respect to 3 cents of property in the middle of item No.2 property in favour of the 2nd defendant. Item Nos.2 and 3 properties are lying contiguously without any demarcation about 3 feet below the level of item No.1 property. The pathway is having a total length of 20 metres and width of 3 feet. Item No.4 way is the only way of access to item No.1 and the plaintiff and his predecessors have been using it for the last
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35 years. When the property was severed, item No.4 pathway was formed, for the separate enjoyment of the tenements of the plaintiff and thereby the plaintiff has acquired the right of easement by necessity over the pathway. After the execution of 3 cents in favour of the 2nd defendant, the 2nd defendant started construction of a house in the said property, by reducing the width of the pathway. Thereafter, the plaintiff has got reliable information that defendants would annex the pathway to their property and the plaintiff will be deprived of his right to enjoy the easement right of way by necessity through item No.4 pathway.
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which goes further about 30 feet to the property of Kuttappan and continues through his courtyard and then to the property of Kunjappan and then to the Panchayat road. The said pathway has been using for the last 35 years. In addition to that, the plaintiff has been using another way from the north-western side of his property, to the property of Kamalakshi and then it reaches to Kalluveli junction and the existence of those pathways was suppressed by the plaintiff in the plaint. Recently, the plaintiff has colluded with Mary and clandestinely diverted the pathway in continuation of the thodu and they began to walk forcibly through item Nos.2 and 3 towards west from 05.07.2011 onwards. Therefore, the plaintiff is not entitled to get an easement right of way by necessity through plaint item Nos.2 and 3.
adduced evidence consisting of oral testimony of PWs 1 to 4, DWs 1 and 2 and Exts.A1 to A4 and C1 to C2(a). After
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considering the evidence on record, the trial court decreed the suit on a finding that the plaintiff has succeeded in proving the unity of ownership and subsequent severance of tenements and the trial court further found that the necessity continues as such, in the absence of alternative ways, after the severance of tenements.
plaintiff as well as his predecessors have been using item
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No.4 pathway, which passes through item Nos.2 and 3 properties of the defendants continuously, uninterruptedly, openly and as of right for the last more than 35 years and they have acquired the easement right of way by necessity through the said pathway. The defendants have neither admitted nor denied the unity of ownership on the severance of the tenements. In the absence of specific denial, the unity of ownership and severance of tenements shall be deemed to be admitted by the defendants.
3 properties from item No.1 property. The defendants contended that there are two alternative pathways. According to them, the plaintiff has been using a pathway having 20 feet length through the thodu towards East and another pathway from the north-western side of his property,
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through property of Kamalakshi and that pathway reaches at Kalluvelil junction. The alleged alternative pathways were sought to be ascertained by the Commissioner and the Commissioner has specifically reported that there is no such alternative ways as alleged by the defendants. In Ext.C2 Commission report, the Commissioner has reported that the thodu lies in a lower level and there was no means of access to the thodu which lies in a lower level from the plaintiff's property. Further, it is stated that the thodu is used for the drainage of water and not as a means of access. The thodu is not accessible unless there is means of access like steps to get down to a lower level.
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No.1 property and the said pathway was destroyed by putting stumps and dumping soil from the trench formed for the foundation of the building by the defendants. The Commissioner was examined as PW3 and nothing brought out to discredit his evidence.
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his predecessors have been using item No.4 pathway as of necessity for many years and the defendants have attempted to obstruct the said pathway by putting soil on the said pathway. In the absence of any kind of perversity in the appreciation of evidence, I do not find any reason to interfere with the concurrent findings of the courts below. No question of law arises for consideration in this appeal.
Hence, this Regular Second Appeal will stand dismissed.
Sd/- (K. HARILAL, JUDGE)
aks/18/11
// True Copy //
PA to Judge
2 issues framed by the court
Whether the presence of alleged alternative pathways affects the existence of an easement right by necessity.
Whether the lower courts misappreciated evidence regarding the unity of ownership and continuous usage of the pathway.
Thankappan S/o. Azhakan
Anu T.T. S/o. Thankappan
Mathew S/o. Mathai
K. Harilal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
