EZHUTHASSANKANDIYIL AJITHAKUMARI and others v. C.K. RAVEENDRAN and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 19[TH] DAY OF JANUARY 2023 / 29TH POUSHA, 1944** **SA NO. 190 OF 2002** **AGAINST THE ORDER OF OS 385/1994 OF MUNSIFF COURT,** ## **KOZHIKODE-II** **AS 108/1997 OF PRINCIPAL SUBORDINATE COURT OF KOZHIKODE** ## **- APPELLANTS [PLAINTIFFS APPELLANTS):** - 1 EZHUTHASSANKANDIYIL AJITHAKUMARI D/O. LEELAVATHI AMMA, CHEVAYUR AMSOM AND DESOM,, KOZHIKODE TALUK AND DISTRICT. - 2 EZHUTHASSANKANDIYIL VINODKUMAR S/O. KRISHNAN NAIR, CHEVAYUR AMSOM AND DESOM,, KOZHIKODE TALUK AND DISTRICT. - 3 EZHUTHASSANKANDIYIL SUBHASH S/O. KRISHNAN NAIR, CHEVAYUR AMSOM AND DESOM,, KOZHIKODE TALUK AND DISTRICT. - 4 EZHUTHASSANKANDIYIL SHINITHA KUMARI (NOW MAJOR), D/O. KRISHNAN NAIR,, CHEVAYUR AMSOM AND DESOM, KOZHIKODE TALUK AND, DISTRICT. BY ADVS. SMT.PREETHY KARUNAKARAN SRI.ANISH S.AMBADY SRI.R.RAJESH KORMATH ## **– RESPONDENTS/DEFENDANTS 2 TO 4 AND L.R OF 1ST DEFENDANT** ## **RESPONDENTS 2 TO 5:** - 1 C.K. RAVEENDRAN,(DIED) (LRS IMPLEADED) CHATHANKULANGARA HOUSE, SON OF AYYAPPUTTY,CHEVAYUR AMSOM AND DESOM,, KOZHIKODE TALUK AND DISTRICT. - 2 MODUVIL CHANDRAN SON OF RARICHAN MODUVIL HOUSE, PARAMBIL AMSOM AND DESOM,, KOZHIKODE TALUK AND DISTRICT. S.A.No.190/2002 2 3 EZHUTHASSANKANDIYIL DINESH KUMAR S/O. KRISHNAN NAIR, CHEVAYUR AMSOM AND DESOM,, KOZHIKODE TALUK AND DISTRICT. 4 CHATHANKULANGARA RADHAMANI, W/O. C.K.RAVEENDRAN, CHEVAYUR AMSOM AND DESOM,, KOZHIKODE TALUK AND DISTRICT. ADDL.R5 RAJEEV, S/O.C.K.RAVINDRAN,CHEVAYUR AMSOM AND DESOM,KOZHIKODE. ADDL.R6 RAJITHA PRAVEEN, PAYEVELICHEDATH, 'KOUSTHUBHAM' HOUSE,P.O.MARYKUNNU,VELLEMEDAKUNNU,IRIGADOMPALLI683 012. (4TH RESPONDENT IS RECORDED AS THE LEGAL REPRESENTATIVE OF THE DECEASED 1ST RESPONDENT AND ADDL.RESPONDENTS 5 AND 6 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 1ST RESPONDENT PER ORDER DATED 11.07.2022 IN IA.2854/2016.) BY ADVS. P.K.RAVISANKAR – R4, ADDL. R5, R6 C.P.MOHAMMED NIAS ELEVATED AS JUDGE [R1, R4, ADDL.R5, R6] S.AJITH – R4, ADDL.R5, ADDL.R6 THIS SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 11.01.2023, THE COURT ON 19.01.2023 DELIVERED THE FOLLOWING: S.A.No.190/2002 3 ## **M.R.ANITHA, J** ****************** S.A.No.190 of 2002 ------------------------------------------------Dated this the 19[th] day of January, 2023 ## **JUDGMENT** The second appeal has been directed against the judgment and decree in A.S No. 108 of 1997 on the file of Principal Sub Court, which in turn arise out of the judgment and decree in O.S No 385 of 1994 on the file of Munsiff’s court Kozhikode – II. 2. Appellants are the plaintiffs (parties would hereafter be referred as per their status before the trial court). Pliant A to C schedule properties and the properties abutting the four boundaries originally belong to Mannil Chittaduth tharavad. Plaintiffs and fourth defendant are siblings. The plaint A schedule property and D schedule way and the properties lying south, west and north were paddy lands. Plaint A, B and C schedule properties and the other properties of the family were partitioned S.A.No.190/2002 4 in the year 1952 as per partition deed No.1184 of Kakkodi SRO. Plaint A schedule property is G schedule item No.9 in that partition deed. Plaint D schedule is the pathway to plaint A schedule, B schedule and the property lying on the west of C schedule for the use of the family members for the last more than 70 years. Subsequently as per Ext.A1 partition deed of the year 1953, plaint A schedule property was allotted to the Thavazhy of the plaintiffs' mother and others as item No.6 and 22. In 1959, as per Ext.A2, plaint B schedule property was assigned to the father of first defendant by the members of the Thavazhy. On account of subsequent partition deed Ext.A3 in the year 1973, plaint C schedule property was allotted to the thavazhy of the plaintiffs, fourth defendant and their mother. In 1981 as per Ext.A4 partition deed, plaint C schedule was allotted to the plaintiffs and the fourth defendant as item No.5 therein. According to the plaintiffs, plaint D schedule is the only means of access to plaint C schedule property. Though plaintiffs claim right of easement by prescription as well as necessity, the claim S.A.No.190/2002 5 of easement by prescription was given up before the trail court by endorsement on the plaint. So, plaintiffs claim a right of ownership over D schedule way and also claim right of easement by necessity. 3. Defendants 1 to 3 filed written statement stoutly denying the existence of any way, as alleged in plaint D schedule. It is also denied that D schedule way was kept in common for use of different sharers as per the partition deeds executed in the plaintiffs' tharavad. Claim of easement by necessity is denied since the plaintiffs have got alternate way and also because the claim is not legally sustainable since plaintiffs claim ownership over D schedule pathway. 4. Fourth defendant filed written statement supporting the plaint averments. 5. PW1 was examined and Exts.A1 to A14 marked from the side of the plaintiffs and DW1 was examined and Exts.B1 marked from the side of the defendants. S.A.No.190/2002 6 6. The trial court found that plaintiffs failed to prove existence of plaint D schedule way. It is also found that the claim of easement by necessity over D schedule way is not legally sustainable since plaintiffs are claiming ownership over D schedule property as well. It is also found that B schedule property was acquired by the father of the first defendant by virtue of Ext.A2 in 1959, the plaintiffs have no case that the necessity of way arouse on that occasion. It is also inconsistent with the plea of the plaintiffs that the way has been in existence for more than 70 years. Hence it is found that the plaintiffs have not established their right to claim a way through the property of 1[st] and 2[nd] defendants. 7. First appellate court, on re-appreciating the facts circumstances and evidence, found that the plaintiffs have no consistent case about their right over D schedule way since earlier they filed a case before the Revenue Divisional Officer claiming that D schedule is a public way. It is also found that there is no pathway in existence. The plaintiffs failed to prove S.A.No.190/2002 7 severance of property so as to claim easement of necessity through B schedule. Hence, ultimately it was found that plaintiffs failed to prove any right of easement by necessity through any portion of plaint B schedule property and accordingly, the appeal was dismissed confirming the judgment and decree passed by the trial court. 8. Aggrieved by the above the appellants approached this court in second appeal. Appeal was admitted on the following substantial question of law: _A) Was the court below justified in considering a claim for prescriptive easement and also title on par with a case of alternative plea of absence of title of the defendants and easement of necessity; and in applying the decisions applicable to the former case to the latter ?_ _B) Does the setting up of case of title and easement of necessity disentitle the plaintiffs from getting any relief in the suit ?_ _C) Are not the proved facts in the case sufficient to found a claim for easement of necessity ?_ _D) Is it necessary that severance of_ S.A.No.190/2002 8 _tenements be as per the same document to enable the party whose land is landlocked from claiming easement of necessity ?_ 9. Notice was issued to the respondents, lower court records were called for and both sides were heard. 10. The main contention of the learned counsel for the plaintiffs is that apart from plaint D schedule way, there is no other means of access to plaint C schedule. It is an admitted case that plaint B schedule property was purchased by defendant No.1 from the family of the plaintiffs. The learned counsel also relies on **Achuthan Nair v. Vasudevan and Another : 2020 (5) KHC 647** and contented that the earlier proposition of law that easement of necessity cannot be claimed as an alternative relief as laid down in earlier judgments is doubted by a learned single judge and the matter is referred to a larger bench and hence since severance of tenements is established in this case right of easement by necessity ought to have been found in favour of the plaintiffs. 11. The learned counsel for the contesting defendants, on S.A.No.190/2002 9 the other hand, would contend that the plaintiffs specific case is that plaint D schedule pathway is not a part of plaint C and B schedule properties. On the other hand, the specific allegation is that plaint D schedule has been left out as a way and it has been in use for the last more than 70 years and it further extends towards west even after plaint B and C schedule properties as an access to other remaining paddy fields belonging to the tharavad and that way starts from Poolakkadavu road from the east. Since the D schedule is not part of B schedule, the claim of easement by necessity will not lie. It is also his contention that the defendants purchased the property in the year 1959 and subsequently so many partitions have been effected in the plaintiffs tharavadu and hence the right of easement by necessity cannot be claimed through a part of B schedule which has been described as D schedule in the plaint. 12. It has been found concurrently by the courts below that plaint D schedule is not lying as a pathway. In Exts.C1 and C1(a), the Commissioner clearly stated about the trees standing S.A.No.190/2002 10 in D schedule portion claimed by the plaintiffs and reported that it forms part of B schedule property. It is also reported that there are various trees standing in D schedule and further that, it is not possible to demarcate D schedule property from B schedule and it is further reported that D schedule has been marked in the sketch, as claimed by the plaintiffs. In the sketch, Ext.C1(a), the Commissioner has noted a fencing on the western boundary of C schedule which extends from north to south including the portion where the D schedule way alleged to be continuing in C schedule, though a ridge is shown in C schedule property in the beginning. 13. So the next question would be as to whether the claim of right of easement by necessity through D schedule is legally sustainable. Plaintiffs claim that D schedule was in existence for the last more than 70 years and it is not described as part of C and B schedule properties. The specific claim of the plaintiffs is that the D schedule was in use of the tharavad and it is lying on the southern boundary of B schedule. Hence, the admitted case of the plaintiffs is that plaint D schedule is not a part of plaint B S.A.No.190/2002 11 schedule. In this context, the learned counsel for the defendants bring to my attention **Mohammed v. Doomunhi Achari : 1987 KHC 649** wherein it has been held that an existence of a dominant tenement and servient tenement are essential to the creation and existence of an easement and it is difficult to conceive of a position where a person can claim easement by prescription when he owns both the tenements. It is also held that it may be permissible in the plaint to advance an inconsistent plea of ownership and easement alternatively, but it is necessary that the plaintiffs should press one only either at the stage of the evidence or at a subsequent stage. When the dominant and servient tenement are in the ownership and possession of the same person, acts done by him on the servient tenement are clearly referable to his possession of that tenement and hence there cannot be any easement. 14. In this case, though the plaintiffs given up the plea of right of easement by prescription during trail, their claim of ownership over D schedule property is not given up and the S.A.No.190/2002 12 pleading in the plaint that D schedule is the way in use of the tharavad properties for that last more than 70 years is still subsisting. So also, plaint D schedule is not described as a part of plaint B schedule. Hence, plaintiffs are sticking to their stand that D schedule is the way portion which is in existence to the tharavad properties to C schedule and further towards west in A schedule. Since the plaintiffs are not admitting that D schedule is a part of B schedule, the property belonging to the defendants there is no servient tenement as such with respect to plaint D schedule. As per Section 4 of the Indian Easements Act, an easement is a right which the owner or occupier of certain land possess, as such for beneficial enjoyment of that land, to do and continue to do something or to prevent and continue to prevent something being done in or upon or in respect of certain other land not his own. It is a must that there must be a dominant and serviant tenement and those owners must be different persons. In this case, since the plaintiffs did not admit the defendant as the owner of D schedule, the claim of easement over D schedule S.A.No.190/2002 13 will not sustain in the eye of law. Hence the findings of the court below in that regard does not require any interference. 15. Next is with regard to the argument of the learned counsel about the non existence of any alternative way for ingress and egress to plaint C schedule apart from the plaint D schedule. Admittedly, the property was sold to the defendant as per Ext.A2 in the year 1959. As per Ext.A3, in 1973 another partition deed was executed among the members of plaintiffs family. As per which plaint C schedule property along with other properties were set apart to the plaintiffs thavazhy. Ext.A4 is the copy of partition deed of 1981 by which C schedule property along with other properties were set apart to the plaintiffs and fourth defendant, jointly. Item No.5 in Ext.A4 is C schedule described in the plaint, the eastern boundary of that property is a pathway. But in the plaint, plaintiffs shown B schedule property and the way as the eastern boundary. So, the description of B schedule on the eastern boundary is incorrect and misleading. It is, obviously to mislead the court with regard to the existence of S.A.No.190/2002 14 a way on the eastern boundary. It is also pertinent to note that the property was sold to the first defendant in the year 1959. In that document, there is no mention regarding any way on the southern boundary. After obtaining C schedule property as per Ext.A4, with a specific boundary on the eastern side of C schedule as a way, the defendants are estopped from contending that there is no way to plaint C schedule and cannot claim any right of easement by necessity over a portion of the defendant's property by demarcating it as D schedule, when there is no such way in existence through B schedule property. **Sahara Granites** **v. District Geologist, Palakkad District & Others : Manu/KE/2692/2022** was placed reliance by the counsel for the plaintiffs. But in that case, servence of tenements and non availability of alternative access have been proved and in the said circumstances it was found that the plaintiffs are entitled for a right of way as an easement of necessity. It has no application to the case in hand. Hence, I find that the courts below rightly negatived the plea of easement by necessity and any right of way S.A.No.190/2002 15 over plaint D schedule property to plaintiffs. I do not find any illegality or irregularity in the said findings. So the substantial questions of law formulated actually do not arise for consideration. In the result, second appeal is found to be devoid of any merit and hence dismissed. No cost. (sd-) ## **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge