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2022 DIGILAW 676 (KER)

Tharayil Thithikutty Umma, D/o. Veeravu v. Maimoona, W/o. Manakka Padikkal Kapyarathu Avunni

2022-08-05

SATHISH NINAN

body2022
JUDGMENT : The plaintiffs in a suit for declaration of easement of right of way and for prohibitory injunction against obstruction of the way, are the appellants. The suit was concurrently dismissed by the Courts. 2. Plaintiffs 1 and 2 are the wife and husband respectively. The plaint 'A' schedule property belongs to the first plaintiff-wife as per document No.2157/1974. Along with the plaint, the plaintiff has produced a rough sketch showing the lie of the properties. For the sake of convenience the properties are referred to as marked in the sketch. In the said sketch, the plaint 'A' schedule is marked as plot 'A'. On the immediate northern side of the plaint 'A' schedule property (Plot-A), is the plaint 'B' schedule property belonging to the second plaintiff-husband (Plot-B). It was purchased by the second plaintiff as per Ext.A1 sale deed of the year 1989. To its immediate north is the property of defendants 1 and 2 which is shown as 'D' plot in the rough sketch. On its eastern side, lies plot number 'E' and to its east is plot 'F' which belong to defendants 3 and 4 respectively. On the eastern side of plot 'F' is a public road which lies in north-south direction. From the said public road towards plot-D and along the northern side of plots 'E' and 'F' is a way marked as plot 'C'. According to the plaintiffs, for their access to the eastern public road they have access to the plot ‘C’ way through the property of defendants 1 and 2 through the way marked in the rough sketch in dotted lines as 'W'. The plaintiffs claim easement right over the way portion marked as 'W' and injunction is sought regarding the same. 3. The defendants denied the existence of the way (plot W) as claimed by the plaintiffs and also the right of way. It was further contended that the plaintiffs have other access to their properties. 4. The courts found that the plaintiffs have failed to prove the existence of the way (plot W) and the right claimed by them. It was also found that the plaintiffs have other access to their properties. Accordingly the suit was concurrently dismissed. It is aggrieved thereby that this Regular Second Appeal has been filed. 5. Heard learned counsel Sri. A. Jayesh Mohan Kumar on behalf of the appellants-plaintiffs and Sri. It was also found that the plaintiffs have other access to their properties. Accordingly the suit was concurrently dismissed. It is aggrieved thereby that this Regular Second Appeal has been filed. 5. Heard learned counsel Sri. A. Jayesh Mohan Kumar on behalf of the appellants-plaintiffs and Sri. T.P. Sajan on behalf of the contesting respondents on the following substantial question of law:- (i) Does not the evidence on record establish that the alternate access allegedly available to the plaintiffs is not one over which the plaintiffs have a right of user? (ii) Severance of tenements being not in dispute and the alternate access being not one over which there is a right of access, but is permissive, are not the plaintiffs entitled for easement right of way by necessity? (iii) When plaint ‘A’ schedule belonging to the first plaintiff-husband was not part of the common tenement, but the adjoining plaint ‘B’ schedule belonging to the 2nd plaintiff-wife was part of the common tenement, will the alternate access if any, to the ‘A’ schedule deprive a claim of easement of necessity by the 2nd plaintiff? 6. That plots 'B', 'C', 'D', 'E', and 'F' were originally held by a single owner is not in dispute; so also is the fact that the plaint 'A' schedule (plot-A) was not part of the said holding. The existence of the Plot ‘C’ way as shown in the rough sketch, leading from the eastern public road to the property of defendants 1 and 2 (plot-D) is not in dispute. The dispute is essentially with regard to the right of the plaintiffs to have access through plot-D belonging to defendants 1 and 2 over the way marked ‘W’. 7. Plots 'B' to 'F' having been under a single ownership and there having been severance of tenements, plot-B is entitled for right of access as an easement on necessity, provided, there is no other access which the said sharer can use as of right. The necessity must be absolute in the sense, if another access is available, though inconvenient, it is no excuse. It deprives a claim for easement of necessity. Though law in the said regard is too well settled, for the sake of completeness reference could be made to Velayudhan v. Padmanabhan [ 1988 (2) KLT 417 ], Ram Mohan v. Narayanan Namboodiripad [ 1990 (1) KLJ 89 ]. It deprives a claim for easement of necessity. Though law in the said regard is too well settled, for the sake of completeness reference could be made to Velayudhan v. Padmanabhan [ 1988 (2) KLT 417 ], Ram Mohan v. Narayanan Namboodiripad [ 1990 (1) KLJ 89 ]. Plot ‘A’ being not part of the said holding, the 1st plaintiff cannot raise such a claim of easement of necessity for the said plot. Therefore, the only question is as to whether the 2nd plaintiff is entitled to a way of necessity to the plaint 'B' schedule (plot- B). Two questions crop up; (i) Will the access if any, for the plot ‘A’ owned by the first plaintiff deprive a claim for necessity by the second plaintiff in respect of plot ‘B’, (ii) Is there any alternate access to the second plaintiff, to plot ‘B’. 8. Plot 'A’ belonging to the first plaintiff-wife is on the south of Plot 'B’ belonging to the second plaintiff-husband. Though plots ‘A’ and ‘B’ may be lying as a single holding, it is not a co-ownership property. The plots belong to the first and second plaintiffs separately and absolutely. Even assuming that there is an alternate access to plot ‘A’ and that plot ‘B’ also could have access thereto through plot ‘A’, that would not be an access as of right. It is only a permissive user through plot ‘A’. So long as the relationship between plaintiffs 1 and 2 remains cordial, may be the 2nd plaintiff could have access through plot ‘A’ and the access available to plot ‘A’. But that will not confer a ‘right of user’. It is only a permissive user consequent on the relationship between the parties. The mere fact that the adjoining property (Plot ‘A’) belongs to the 1st plaintiff-wife and that plot ‘A’ has some other access, will not deprive a claim for necessity by the 2nd plaintiff-husband, for access to plot ‘B’. [See Moideen Haji v. Kadir 1964 KLJ 904 : ILR (1965) 1 Ker. 40]. To deprive a claim of necessity, the alternate way must be one over which the claimant has a ‘right of access’. In Kochan Ramanathan v. Kochan Natarajan [ 1990 (2) KLJ 617 ], this Court held, “...the alternate access should be one which could be used as a matter of right and not at the sufferance of somebody”. 9. 40]. To deprive a claim of necessity, the alternate way must be one over which the claimant has a ‘right of access’. In Kochan Ramanathan v. Kochan Natarajan [ 1990 (2) KLJ 617 ], this Court held, “...the alternate access should be one which could be used as a matter of right and not at the sufferance of somebody”. 9. According to the plaintiffs, there is no other access to the ‘B’ plot. The defendants allege that there are access through the western and southern sides of the plaintiffs properties. The second plaintiff as PW1 has denied the allegation of alternate access. Here the evidence of the defendants is of significance. The first defendant was examined as DW1. She admitted that the alleged access of the plaintiffs towards the west was with the consent of the owners of the said properties. She has in her cross-examination further admitted that the access through the south is through the property of one Chiyamu and Muhammad, and that it is also a permissive user. Therefore, even according to the defendants the alternate access pointed out by them are not ones over which the plaintiffs have a right of user. The permission could be revoked by the owners of the said properties at any time. Severance of tenements and non-availability of alternate access having been proved, the second plaintiff is entitled for a right of way to plot ‘B’ as an easement of necessity over the plot 'C' and through plot-D belonging to defendants 1 and 2. Substantial questions of law are answered accordingly. 10. Now the issue is regarding the location and width of the way through plot ‘D’; is it over the portion marked as ‘W’, as claimed by the plaintiffs? Based on Commissioner's Report, the courts noticed that the plaintiffs were not able to prove the existence of a way shown as 'W' in the rough sketch. The plaintiffs allege that the way was closed on the eve of the suit. Be that as it may, it was for the plaintiff to seek for appropriate reliefs for restoration or for laying down the way. A prayer in the said regard is lacking. There is no evidence regarding the width of the way. The claim is for 4 feet wide way. Be that as it may, it was for the plaintiff to seek for appropriate reliefs for restoration or for laying down the way. A prayer in the said regard is lacking. There is no evidence regarding the width of the way. The claim is for 4 feet wide way. So also it is seen that the way claimed through the property of defendants 1 and 2 and the way marked as plot ‘C’ in the rough sketch have not been scheduled to the plaint. The way in respect of which the relief is claimed, is to be scheduled to the plaint. Having found that the second plaintiff is entitled for a right of way by easement of necessity through the 'C' plot in the rough sketch, and also through the 'D' plot in the rough sketch belonging to defendants 1 and 2, the width and location of the way through the ‘D’ plot needs to be laid down. The way as claimed by the plaintiffs marked as 'W' in the rough sketch is almost through the middle of the property of defendants 1 and 2. Under Section 22 of the Easement Act, the defendants 1 and 2 are entitled to seek for confinement of easement through a part of their property which is least inconvenient to them. The location/ alignment of the way is to be fixed by the Court with the assistance of a Commissioner. Anyway, the matter needs to be remanded back to the trial court for the above purposes. The plaintiff can be permitted to have the plaint amended by incorporating appropriate relief and schedules. The defendants shall be permitted to file additional written statement. Accordingly the decree and judgment of the courts below are set aside. The suit is remanded back to the trial court for disposal denovo in the light of the observations above. The trial court shall issue fresh notice of appearance to the parties. The suit being of the year 2001, the suit may be expedited.