Jacob v. Elsy, CIAmmini, CA Joseph, CA George and KC Johnson

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL MONDAY, THE 14TH DAY OF NOVEMBER 2016/23RD KARTHIKA, 1938 SA.No. 359 of 2001 (A) ----------------------- AGAINST THE JUDGMENT & DECREE DATED 11-12-2000 IN AS 219/1997 of I ADDL.DISTRICT COURT, THRISSUR AGAINST THE JUDGMENT & DECREE DATED 31-03-1997 IN OS 763/1995 of II ADDL. MUNSIFF'S COURT, THRISSUR ## APPELLANT/APPELLANT/PLAINTIFF: ------------ JACOB, S/O.CHITTILIAPPILLY MATHEW, PERAMANGALAM VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. BY ADVS.SRI.N.P.SAMUEL SRI.V.R.REJITHKUMAR ## RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------- 1. ELSY, D/O.CHAKKALAKKAL INASU, AMALA NAGAR, CHOORAKKATTUKARA DESOM, PUZHAKKAL VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. 2. C.I.AMMINI, W/O.KALAPARAMBIL GEORGE, PAPPINIVATTOM VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT. 3. C.A.JOSEPH, INSURANCE OFFICER, RESIDING AT AMALA NAGAR, S/O.CHITTILAPPILLY ANTHONY, PARAPPOOR DESOM, THOLUR VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. ...2 SA.No. 359 of 2001 (A) 2 4. C.A.GEORGE, S/O.CHEVOOKARAN ANTHONY, RESIDING AT AMALA NAGAR, PUDUKKAD DESOM, THORAVU VILLAGE, MUKUNDAPURAM TALUK, THRISSUR. 5. K.C.JOHNSON, S/O. KALLIYATHUPARAMBIL CHAKKU, AMANA NAGAR, CHOORAKKATTUKARA VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. R1 TO R5 BY ADVS. SMT.PRABHA R.MENON SRI.KODOTH PUSHPARAJAN SRI.M.KRISHNAKUMAR SRI.K.JAYESH MOHANKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OKB C.R. ## K.HARILAL, J. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ S.A. No.359 of 2001 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Dated this the 14[th] day of November, 2016 ## JUDGMENT ~ ~ ~ ~ ~ The appellant is the plaintiff in O.S. No.763/1995 on the files of the II Additional Munsiff's Court, Thrissur as well as the appellant in A.S. No.219/1997 on the files of the I Additional District Court, Thrissur. The aforesaid Original Suit was originally one for permanent prohibitory injunction only and subsequently, amended and incorporated the prayer for declaration of an easement of right of way by prescription and necessity. Even though the plaintiff had claimed both easement of right of way by prescription and necessity in appeal, later, he has abandoned the claim of prescriptive easement right. The courts below concurrently negatived the claim of the plaintiff, on a finding that the plaintiff has _S.A.359/01_ **:2:** miserably failed to prove severance of property and an alternative way is in existence for the ingress and egress of the plaintiff and his family members to plaint 'A' schedule property. The legality and correctness of the aforesaid finding are assailed in this Second Appeal, on the basis of the questions of law raised in the Memorandum of Appeal. 2. Heard the learned counsel for the appellant and learned counsel appearing for the respondents. 3. It is the case of the appellant/plaintiff that 'A' schedule property belongs to him by virtue of Ext.A1 sale deed dated 10.05.1994 and thereafter, he has been using plaint 'B' schedule pathway passing through 'C' schedule property of the defendants, for ingress and egress to 'A' schedule property. It is also averred that the properties lying on both sides of 'B' schedule pathway belong to one person, by name Chittilappilly Vareedu, and the subsequent owners who purchased the properties from the said Chittilappilly Vareedu. Thus, the predecessor-in- _S.A.359/01_ **:3:** interest of both 'A' and 'B' schedule properties was common and thereby, the plaintiff has got an easement right by necessity, according to the plaintiff. 4. Here the question is, whether the unity of common ownership alone would satisfy the statutory requirements of easement right of way by necessity. It is trite law that to sustain the plea of easement by necessity under Section 13 of the Indian Easements Act, 1882, there must be a severance of tenements and not the severance of common ownership only. According to Section 13 of the Indian Easements Act, easement by necessity arises only where, by transfer or bequest or partition a single tenement is divided into distinct and separate tenements and anyone of the separate tenements is so situated that it cannot be used at all without enjoying an easement over other such tenements. 5. The mere fact that servient and dominant tenements once belonged to one person does not give rise to a claim for an easement right of way by _S.A.359/01_ **:4:** necessity, without pleadings and proof of the unity of tenements and subsequent severance by transfer or bequeath or partition. In the absence of the unity of both ownership and tenements and subsequent severance, easement right of way by necessity cannot be granted on the plea that at one point of time both dominant and servient heritages were under common ownership. In short, severance of both common ownership and tenement by transfer or bequest or partition is required to constitute easement right of necessity. 6. When applying the above statutory requirements to the instant case, it could be seen that even though the appellant has made an attempt to amend the plaint, that amendment was also to the effect that both servient heritage and dominant heritage were under common ownership of Chittilappilly Vareedu and there is no pleadings as to unity of servient and dominant heritages and subsequent severance of the same into two. _S.A.359/01_ **:5:** Therefore, at the outset, this Court finds that the court below is justified in arriving at a finding that the pleadings in the plaint are not sufficient to grant an easement right of way by necessity. 7. It is trite law that the evidence without pleadings cannot be looked into. The lower appellate court, after analysing the evidence on record, arrived at a finding that even if the defendants' contentions are taken at its face value, there cannot be a severance of tenements as servient heritage and dominant heritage. I do not find any reason to interfere with the aforesaid finding. 8. Coming to the existence of alternative way pleaded by the defendants, in Ext.C2 report, the Advocate Commissioner had found a pathway along the bund on the North of the plaint 'A' schedule crossing the 'water chal' and that pathway enters into plaint 'A' schedule through its north-western side. It is also specifically stated that on the north-western corner of the 'A' schedule property, there are pavements to _S.A.359/01_ **:6:** reach the bund road. Thus, the existence of the alternative pathway through the bund road is specifically stated by the Commissioner in the report. 9. In the above context, the decision of this Court in Mathu v. Varied [1988 (1) KLT 493] is relevant. In the aforesaid decision, this Court held that the existence of alternative pathway, however inconvenient it be, is sufficient to reject the plaintiff's claim of easement by necessity. In a case where it is established that an outlet is available to the plaintiff, other than the one claimed by him through the defendant's property, it goes without saying that easement of necessity does not exist. Where there is another way by which plaintiff has access to his property, he cannot claim easement of necessity. The necessity must be an absolute necessity and not a convenient mode of enjoyment of property. 10. Therefore, even if the alternative way _S.A.359/01_ **:7:** through the bund road and the foot steps on the south-western corner of the 'A' schedule property is inconvenient, the appellant cannot claim an easement right of way by necessity, in the absence of absolute necessity. Thus, the appellant has miserably failed to plead and prove the facts constituting the ingredients of easement right of way by necessity, as provided under Section 13 of the Indian Easements Act. 11. I do not find any kind of illegality or incorrectness in any of the findings, whereby the courts below rejected the claim of the appellant. No other question of law arises for consideration in this appeal. This Second Appeal will stand dismissed. All pending Interlocutory Applications will stand closed. K.HARILAL, Judge. aks/okb