Balasubramanian v Velu and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **TUESDAY, THE 10[TH] DAY OF JANUARY 2023 / 20TH POUSHA, 1944** ## **RSA NO. 179 OF 2009** **AGAINST THE JUDGMENT IN AS 72/1999 OF SUB COURT, TIRUR OS 132/1997 OF MUNSIFF-MAGISTRATE COURT,PONNANI** **-----** ## **APPELLANT:** BALASUBRAMANIAN, S/O.PARAPPUR KEEZHVEETTUVALAPPIL NARAYANAN NAIR,NANNAMUKKU AMSOM, KALLURMA DESOM, PONNANI TALUK. BY ADVS. SRI.T.SETHUMADHAVAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH **RESPONDENTS/RESPONDENTS 2 TO 8/2ND DEFENDANT & LRs of 1st DEFENDANT *[1 ]** 1 VELU, **(DIED; LHR RECORDED)** S/O.THALEKKARA VELU, RESIDING AT NANNAMUKKU AMSOM, KALLURMA DESOM, PONNANI TALUK. ***[2 ]** 2 THALEKKARA SARADA, **(DIED; LHR RECORDED)** W/O.1ST DEFENDANT -LATE PADU, RESIDING AT NANNAMUKKU AMSOM, KALLURMA DESOM, PONNANI TALUK. 3 SUJATHA, D/O.1ST DEFENDANT-LATE PADU, R/AT .DO. 4 VELU @ ACHUTHAN, S/O.1ST DEFENDANT-LATE PADU, R/AT -DO5 SUBRAMANIAN, S/O.1[st] DEFENDANT LATE PADU, R/AT. -DO6 MANIKANDAN, S/O.1[st] DEFENDANT-LATE PADU R/AT -DO- **RSA NO. 179 OF 2009 -2-** 7 RAJAN, S/O.1[st] DEFENDANT-LATE PADU R/AT.DO. ***[1 &] *[2]** (RESPONDENTS 2 TO 7 ARE RECORDED AS LEGAL HEIRS OF DECEASED FIRST RESPONDENT AND RESPONDENTS 3 TO 7 ARE RECORDED AS THE LEGAL HEIRS OF DECEASED 2ND RESPONDENT AS PER ORDER DATED 27.07.2020 IN IA.1/2019.) BY ADVS. SRI.S.K.PREMJITH MENON - R6 SRI.JAMSHEED HAFIZ – R2, R5, R7 SRI.BINU V V - R6 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.S.A. No.179 of 2009** **= = = = = = = = = = = = = = = = = = Dated this the 10[th] day of January, 2023** ## **J U D G M E N T** The plaintiff in a suit for declaration of easement right of way and for mandatory injunction, is the appellant. The suit was dismissed concurrently by the courts. 2. The plaint 'A' schedule property belongs to the plaintiff as per Ext.A4 assignment deed. On the eastern side of the plaint 'A' schedule property is the plaint 'B' schedule property belonging to the defendant. 'C' schedule is the way claimed by the plaintiff for access to the plaint 'A' schedule through the northern portion of plaint 'B' schedule from the public road on the east. 3. The plaint schedule properties originally belonged to one Cheroolli tarwad. As per Ext.A1 partition in the family, of the year 1929, a larger extent including the plaint schedule properties was **R.S.A. No.179 of 2009** -: 2 :- partitioned. Plaint 'A' schedule is item No.3 in Ext.A1 partition. Exts.A2 to A4 are the subsequent conveyances, Ext.A4 being the conveyance in favour of the plaintiff. The plant 'B' schedule was included as item No.15 in Ext.A1 partition. At the time of Ext.A1 partition, the said property was in the possession of Velu, the predecessor-in-interest of the defendants on a lease arrangement. To the east of the plaint 'B' schedule (item No.15 in Ext.A1), is item No.14 in Ext.A1. The said property also became vested with Velu under Ext.A6, Ext.A10 being its prior deed. Thus, the defendants' predecessor was in possession of the plaint 'B' schedule (item No.15 in Ext.A1) and item No.14 in Ext.A1. On the eastern side of item No.14 in Ext.A1 is a public road. The plaintiff claims that he has right of way as an easement of necessity through the plaint 'B' schedule for access towards the eastern public road. According to him, plaint 'C' schedule way is situated on the northern portion of plaint 'B' schedule which was being used by ## **R.S.A. No.179 of 2009** **==> picture [34 x 9] intentionally omitted <==** him. The suit is filed on the allegation that the defendants are causing obstructions to the enjoyment of the 'C' schedule way. Accordingly, the suit is filed for a declaration of easement right of way over the 'C' schedule, and for a mandatory injunction to remove the obstructions caused in the way. 4. The defendants denied the existence of the way. It was also contended that the plaintiff has other access to the 'A' schedule property. 5. The trial court found that the way as claimed by the plaintiff - 'C' schedule does not exist and also that the plaintiff has access to his property through the way on the south-western corner of 'A' schedule. The appellate court concurred with the findings. 6. Heard learned Senior Counsel Sri.T.Sethumadhavan on behalf of the appellant-plaintiff and Sri.Jamsheed Hafiz on behalf of the respondents-defendants on the following substantial questions of law:- **R.S.A. No.179 of 2009** -: 4 :- _(i) Is the finding of the courts regarding non-existence of plaint 'C' schedule way, based on materials ?_ _(ii) Were the courts right in holding that the plaintiff has access to 'A' schedule property through a way situated on the south-western corner of 'A' schedule ?._ 7. Ext.C1 is the Commissioner's Report in the suit. The Commissioner could not notice the existence of a way as described in the plaint 'C' schedule leading up to the plaint 'A' schedule. The Commissioner noticed that at the portion claimed as the way, there are various improvements including trees, structures and compound wall. The commissioner noticed arecanut saplings, coconut saplings etc. He noticed that on the way portion claimed by the plaintiff there exist a firewood store which is aged approximately three years, and a kitchen which is approximately four years old. Separating the plaint 'A' and 'B' schedules he noticed a compound wall which is approximately one year old. The trees and other saplings were found to be of at least one year age. ## **R.S.A. No.179 of 2009** **==> picture [34 x 9] intentionally omitted <==** Therefore, the physical features do not establish the existence of plaint 'C' schedule way. 8. In Ext.A1, which is the basic document relating to the properties, the description of the northern boundary of item No.14 (which is the eastern most plot) mentions a way, whereas, the northern boundary of item No.15 which is the plaint 'B' schedule and which is situated just on the immediate west of the item No.14 does not mention the way. Therefore, it indicates that the access from the east was only up to plaint 'B' schedule property and also that there was no way through the plaint 'B' schedule. 9. Ext.A7 is the Partition Deed entered into in the defendant's family with respect to the defendants' properties. Schedule 1 in Ext.A7 is the plaint 'B' schedule property. Its northern boundary is described as, the way leading to item No.1 property. Therefore, the way created under Ext.A7 was only leading up to the plaint 'B' schedule. The defendants would contend that ## **R.S.A. No.179 of 2009** -: 6 :- though such a way was provided under Ext.A7, it was not in fact formed since the allottees were having access through other means and the said share was purchased by the first defendant. If there existed the plaint 'C' schedule way through the northern portion of the 'B' schedule leading up to the plaint 'A' schedule, there was no necessity to provide a way to item No.1 in Ext.A7. 10. Therefore, it could only be concluded that, there is no material to indicate that there exists plaint 'C' schedule way as claimed by the plaintiff. The findings of the courts to the said effect are based on materials. 11. Unity of ownership and severance of tenements being admitted by the parties, the plaintiff is entitled to raise a plea of, right of way as an easement of necessity. This is in terms of Section 13(e) of the Easement Act. However, the right to such claim is statutorily made subject to the rider that, the claimant ## **R.S.A. No.179 of 2009** **==> picture [34 x 9] intentionally omitted <==** sharer should not have any alternate access to the property. The access as claimed, must be necessary for the enjoyment of the property. Though the plaintiff would contend that there is no other access to the plaint 'A' schedule property apart from the plaint 'C' schedule, the said contention is specifically denied by the defendant in their written statement. In paragraph 6 of the written statement it is specifically contended that the plaintiff has access to the 'A' schedule property through the south-western portion of 'A' schedule. It would be apposite to extract the same. _“C_ ]-«n-I-bn Im-Wn-¨ h-gn AÃm-sX _A_ ]«n-I h-l-I-fnte-¡v th-sd h-gn Cà F-¶ A-\ym-b-¯n-se {]-kv-Xmh-\ i-cnbÃ. Ing-¡v `m-K§-sf ]-©mb-¯v tdm-Uv Ipd¨v Iq-Sn sX-t¡m-«v t]m-bm ]-Sn-ªm-dv `m-K-t¯-¡v h- gn Xn-cn-ªv ¶ t]m-Ip- pïv. B h-gn-bn-eq-sS Ipd-¨v Zq-cw t]m-bm ]n-¶o-Sv h-S-t¡m-«v Xn-cn-ªv A-\ym-bw _A_ ]-«nI-h-l-I-fn-te-¡v F-¯p-¶ h-gn t]m-Ip-¶pïv. B h-gnbm-Wv A-\ymbw _A_ ]-«n-I-h-l-I-fn \n-¶v tdm-Un-te-¡v t]m-Im-\p-Å h-gn. A-XÃmsX _C_ ]«n-I h-gn-bn Im-Wn¨ {]-Im-c-ap-Å H-cp hgn _A_ ]«n-I h-l-I-fn-te-¡v H-cn” ¡epw D-ïm-bn-«nÃ. **R.S.A. No.179 of 2009** -: 8 :- 12. In Exts.C1 report and C2 sketch, the Commissioner has noted an access to the plaint 'A' schedule property through the south-western corner. As regards the said way, the plaintiff raises two objections; firstly, that it is through the property of a stranger over which the plaintiff does not have a ‘right of user’. The permission to use the same was granted when the defendants obstructed the plaint 'C' schedule; secondly, the way has a width of only one feet and is hardly sufficient for access. 13. I am afraid, both the contentions of the plaintiff cannot be sustained. The property to the south of the plaint 'A' schedule, through which the plaintiff has access, was also part of the common tenement. The said property was item No.5 in Ext.A1 Partition Deed. Therefore, the said way is one over which the plaintiff has a right of user as an easement of necessity. It is **R.S.A. No.179 of 2009** -: 9 :- in evidence that the said way has been in existence for quite a long time and that it is also being used by other property owners. As regards the width of the way, as noticed, the plaintiff and several others are using the way. Merely because the said access may be inconvenient, it does not entitle the plaintiff to claim another way as an easement by necessity. Existence of an alternate way, however inconvenient it may be, disentitles a claim for easement of necessity. _[See_ _**Zachariah**_ _**v. Kaliyani Amma (1961 KLT 829), Mathu v. Varied (ILR 1988 (2) Kerala**_ _**429), Gouri Amma Krishnamma v. Seethalakshmi Amma (AIR 2004 Ker 75)** ]_ . Therefore, the afore contentions of the plaintiff fails. The courts have rightly declined the plea of easement by necessity over the plaint 'C' schedule. Substantial questions of law are answered as above. 14. The judgments of the courts are based on evidence and on proper applications of law and warrants **R.S.A. No.179 of 2009** -: 10 :- no interference. Regular second appeal fails and is accordingly dismissed. kns/- Sd/- **SATHISH NINAN JUDGE** P.S. to Judge //True Copy//