Research › Browse › Judgment

Kerala High Court · body

1994 DIGILAW 163 (KER)

Janu v. Lakshmi Amma

1994-04-04

P.K.BALASUBRAMANYAN

body1994
Judgment :- The plaintiff is the appellant. The plaintiff filed a suit for injunction directing the defendants to restore the pathway that existed along the northern portion of the plaint B schedule property and for a permanent injunction restraining them from interfering with the plaintiff s user of that pathway. Plaint A and B schedule properties belonged to jenm to the tarwad of the plaintiff. The suit properties were outstanding on lease with one Karikka. Karikka applied for and obtained assignment of the rights over plaint A and B schedule properties under the Kerala Land Reforms Act. Thereafter Karikka sold Plaint A schedule property under Ext. A1 dated 20-12-1980 to the plaintiff and the plaint B schedule property under ExtBl dated 8-12-1981 to defendants 1 and 2. According to the plaintiff Karikka was residing in plaint A schedule property and was using the pathway that existed on the northern portion of the Plaint B schedule property for' ingress into and egress from his house situated in plaint A schedule property. The plaintiff pointed 6ut that in continuation of the pathway through the plaint B schedule property there existed a pathway leading to the further west and that was how Karikka was having access to the outside world from the plaint A schedule. The plaintiff contended that after she purchased the plaint A schedule property under Ext. A1 she was using the same pathway to go the west. But after defendants 1 and 2 purchased the plaint B schedule property under Ext. B1 they are obstructing the piaintiff from using the pathway and had in fact tampered with the pathway that existed. It was also pointed out that the defendants have put up a Kadambaya on the north-western corner of the plaint B schedule property and were making use of it for going to the west through the property of one Gangadhara Poduval. The defendants resisted the suit. They denied the existence of any pathway through the northern portion of plaint B schedule property. They contended that in any event the properties lying to the south, east and north of plaint A schedule property belonged to the plaintiff and that the plaintiff had access to plaint A schedule property purchased from karikka through the property lying on the south. They pointed to a pathway that according to them existed through the southern property. They contended that in any event the properties lying to the south, east and north of plaint A schedule property belonged to the plaintiff and that the plaintiff had access to plaint A schedule property purchased from karikka through the property lying on the south. They pointed to a pathway that according to them existed through the southern property. They also pointed out that even while Karikka was residing in Plaint A schedule property he had access through the properties of all sides of plaint A schedule property and that nobody had prevented him from using 'any of those fields surrounding the plaint A schedule property. 3. In support of her case, the plaintiff produced Ext. A1 assignment deed in her favour and in addition to examining herself as P.W.I examined P.Ws. 2 and 3. The defendants produced Ext. B1 assignment deed of the plaint B schedule in their favour. The 3rd defendant got himself examined as D.W.1 and a son of Karikka the assignor of the parties was examined as D.W.2. A commission was issued and the Commissioner prepared a plan Ext. C1 and report Ext. C2. In the report Ext. C2, the Commissioner reported that at present there was no pathway through the plaint B schedule property from the western side fields but there is a bamboo kadambaya put up at the entrance of B schedule property. The Commissioner also reported that to the south of plaint A schedule property which is one belonging to the tarwad of the plaintiff - according to the plaintiff - there was 'a thin, very narrow pathway running down to the southern paddy fields. It is very difficult to walk through this way, being slippery and narrow.' On the basis of the evidence the trial court held that there existed a pathway as claimed by the plaintiff and that the plaintiff had a right of way through the plaint B schedule properly as claimed by way of an easement of necessity. The trial court therefore decreed the suit for a mandatory injunction directing the defendants to restore the pathway through the plaint B schedule property. On appeal by the defendants the lower appellate court held that the plaintiff could pass. The trial court therefore decreed the suit for a mandatory injunction directing the defendants to restore the pathway through the plaint B schedule property. On appeal by the defendants the lower appellate court held that the plaintiff could pass. through the narrow pathway in the southern property to reach the plaint A schedule property and hence it could not be said that the plaintiff has an easement of necessity for reaching the plaint A schedule property. In that view the lower appellate court reversed the decree of the trial court and dismissed the suit. It is challenging this decree of the lower appellate court that the plaintiff has come up with this Second Appeal. 4.' The question that arises for consideration in this Second Appeal is whether the plaintiff had a right of way through the plaint B schedule property by way of easement of necessity. The plaint A and B schedule properties belonged to one Karikka on leasehold interest. Subsequently, Karikka acquired jenm right over the properties by applying under the Kerala Land Reforms Act. Karikka thereafter sold the two parcels separately, plaint A schedule under Ext. A1 to the plaintiff and plaint B schedule under Ext. B1 to defendants 1 and 2. Clearly therefore there has been a severance of tenement in this case. Karikka retained the portion lying to the north of plaint B schedule property and to the west of plaint A schedule property. The position therefore is that plaint A schedule would be land locked if we consider the plaintiff as an assignee from Karikka. This is therefore a case where aright of way by way of an easement of necessity can arise in favour of the plaintiff. DW.2, the son of Karikka examined in the case is clearly deposed that there was a pathway in the northern portion of plaint B schedule and that was the pathway that is being used for ingress into and egress from plaint A schedule property, wherein Karikka was residing. It is therefore clear that at the time of severance of two tenements there existed a pathway through the north era portion of the plaint B schedule property. It is therefore clear that prima facie the plaintiff is entitled to a right of way through the plaint B schedule property by way of an easement of necessity. It is therefore clear that at the time of severance of two tenements there existed a pathway through the north era portion of the plaint B schedule property. It is therefore clear that prima facie the plaintiff is entitled to a right of way through the plaint B schedule property by way of an easement of necessity. But the claim of the plaintiff is met by the defendants by pointing out that the properties to the south, east and north of plaint A schedule belonged to the plaintiff herself and the plaintiff could have access from the outside world to the plaint A schedule property through the said properties. They also specifically contended that there is a pathway passing through the property lying to the south of plaint A schedule property, which the plaintiff could use as a matter of right, since the southern property is also a property that belonged to her. According to the defendants therefore there is no necessity in this case for the plaintiff to have a pathway through the plaint B schedule property. It is pointed out that an easement of necessity could arise only if the plaintiff establishes that such a pathway was really necessary. 5. The plaintiff has a case that the properly to the south through which the Commissioner noted a thin, narrow pathway passing, belonged to her tarwad 'whereas the plaint A schedule property was purchased by her absolutely for herself. The plaintiff therefore contended that it cannot be said that the properly lying to the south of the plaint A schedule property was held by her exclusively and hence she had a right of way through the southern property. As observed by this court in the decision reported in Moideen Haji v. Kadir & others (1964 KLJ 904) it must be shown that the plaintiff has a right of way through the southern portion before her claim of an easement of necessity to pass through the plaint B schedule property could be negatived. The learned counsel for the defendants submitted that there is nothing to show that the plaintiff was only a co-owner of the southern property and not its full owner. The learned counsel for the defendants submitted that there is nothing to show that the plaintiff was only a co-owner of the southern property and not its full owner. A reference to the boundary description under ExtB1 the assignment of the plaint A schedule property taken by the plaintiff indicates that the properties on the eastern, southern and northern sides were in the possession of the plaintiff herself. The contention therefore is that if the said properties belonged to her, she could pass through the properties to reach the plaint A schedule property and there is no question of a right of easement of necessity arising in her favour on the severance of tenements belonging to Karikka. It is pointed out that the case of the plaintiff that she was only a co-owner, is only spoken by her before the Commissioner and is not attempted to reestablish with reference to the relevant documents on title relating to the eastern, southern and northern properties. It is contended that even if the plaintiff was only a co-owner of those properties, no other co-owner can prevent her from reaching the plaint A schedule property through the said properties. It is also contended with reference to the decision reported in Zachariah v. Kaliyani Amma & others (1961 KLT 829) that however inconvenient the alternate way may be, an easement of necessity cannot exist in favour of the plaintiff, in view of the fact that the Commissioner has reported the existence of a pathway through the southern property belonging to the plaintiff. 6. In the Municipality of the City of Poona v. Vaman Rajaram Gholap (ILR19 Bombay 797) it was held that a person purchasing a plot adjoining his own land and having access to the plot through his land cannot claim a way of necessity over his. vendor's land of which the plot formed a part. The fact that if the plot had been sold to a third person he would have acquired a way of necessity does not affect the question. If this rule is applied to the case on hand it is clear that the plaintiff who has purchased the plaint A schedule property which lay adjacent to the plots belonging to her could not claim a right of way by way of easement of necessity. If this rule is applied to the case on hand it is clear that the plaintiff who has purchased the plaint A schedule property which lay adjacent to the plots belonging to her could not claim a right of way by way of easement of necessity. The only answer the plaintiff has attempted is only to put forward a case in evidence that she had no absolute title over the plots lying to the south, east and north of plaint A schedule property but she had only a co-owner's right. There is no evidence adduced in this case to show what exactly the right the plaintiff has over the properties lying to the east, south and north of plaint A schedule properties. In such a situation it appears to me that the principle of the decision referred to above would apply to the case on hand as well. The principle recognised in the decision reported in ILR 19 Bom. 797 is also recognised by the Calcutta High Court in Hindusthan Co-operative Insurance Society Ltd. v. Secretary of State (AIR 1930 Cal. 230) wherein their Lordships held that for claiming easement of necessity it must be shown that the land conveyed is surrounded on all sides by land belonging to third persons and the only way of access is over the contiguous land of the grantor. 7. The only argument attempted to ward off the application of the principle referred to above is the contention raised on behalf of the plaintiff that the plaintiff is only a co-owner of the properties lying to the south, east and north of the plaint A schedule properties. Assume that the plaintiff has only a co-owners hip right over the said properties, can it be said that she could claim an easement by way of necessity over the plaint B schedule property on the basis of the severance of the tenements held by her assignor, Karikka? There is no doubt in this case that if plot A had been surrounded by lands of others, the plaintiff would be entitled to a right of way by way of easement of necessity. Is that position changed by virtue of the fact that the plaintiff is a co-owner of the lands surrounding the plaint A schedule property on its three sides? 8. Is that position changed by virtue of the fact that the plaintiff is a co-owner of the lands surrounding the plaint A schedule property on its three sides? 8. The Supreme Court has laid down that a co-owner owns or every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. (See Sri Ram Paricha v. Jagannath (1976 (4) SCC 184). If that be so, the fact that the plaintiff is only a co-owner in respect of the properties lying to the south, east and north of plaint A schedule property and can reach the plaint A schedule property acquired by her through the said properties, would disentitle her from claiming a right of way by easement of necessity through the property of the assignor of the plaint A schedule property or through that of his assignee of the plaint B schedule property, the defendants. In that view, I hold that the plaintiff cannot claim a right of way through the plaint A schedule property by way of an easement of necessity. In this view, I agree with the decision of the lower appellate court though for a different reason and dismiss this Second Appeal. In the circumstances of the case, I direct the parties to suffer their respective costs throughout.