Karunan v. Krishnan Radha Nilayam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944 RSA NO. 525 OF 2010** **AGAINST THE ORDER/JUDGMENT IN AS 41/2008 OF SUB COURT,** ## **QUILANDY** ## **IN OS 79/2007 OF MUNSIFF COURT, PAYYOLI** ## **APPELLANT/S:** KARUNAN, PENSIONER,RESIDING AT NO.2/2022A,POONADATH, PARAMBA,CHALLIKKARA ROAD,POST CIVIL STATION,, CALICUT. BY ADVS. SRI.B.KRISHNAN SRI.R.PARTHASARATHY ## **RESPONDENT/S:** KRISHNAN RADHA NILAYAM,POST MAYYANNUR VATAKARA TALUK,, KOZHIKODE DISTRICT,NOW RESIDING AT POST BOX NO.929, POSTAL CODE NO.114,JIBRO,SULTANATE OF OMAN. BY ADVS.SMT.GEETHA P.MENON, SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN, SRI.R.SURAJ KUMAR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15.07.2022, THE COURT ON 5-8-2022 DELIVERED THE FOLLOWING: R.S.A. No. 525 of 2010 -2- ## MOHAMMED NIAS C.P.,J. …............................................................. R.S.A. No. 525 of 2010 …............................................................ ## Dated, this the 5[th] day of August, 2022 ## JUDGMENT This second appeal is filed by the plaintiff in a suit claiming a decree of demarcation of A schedule property from the property held by the defendant and also seeking a mandatory injunction to direct the defendant to provide access to plaint A schedule property on the basis of his claim of easement of necessity. The suit was dismissed and the judgment and decree was confirmed in appeal. Parties are referred to as they are in the trial court. 2. Plaint A schedule property was item No. 2 Schedule B to the deed of partition No. 299/1996 of Villiyappally Sub Registrar Office dated 15-2-1986, Ext. A1 and plaint B Schedule was the property corresponding to the description of Schedule B in the same deed of partition. ## R.S.A. No. 525 of 2010 -3- 3. The property scheduled as C to the plaint corresponding to the description in Schedule G in the deed of partition which was allotted to Vijayan who transferred the same to the defendant. The plaintiff claiming that A schedule property had to be accessed along the western boundary, the said boundary proceeding towards south passing along the western boundary of the C schedule property and further passing along through southern boundary of the residential property held by the plaintiff's brother to proceed towards west to reach the road. Plaintiff contended that the defendant had constructed a wall on the eastern ridge and southern ridge of the A schedule property and that the brother of the plaintiff built a wall on the western ridge of the plaint A schedule property making plaint A schedule property totally landlocked and inaccessible. Accordingly, plaintiff issued a notice asking the defendant to set out the way reasonably convenient to the defendants to access the A schedule property. Since the defendant did not heed to the same, the suit was filed. 4. The defendant resisted the suit contending that the plaint schedule properties are not identified and that item No. 2 of plaint B schedule was a paddy field at the time of partition and the way to the property allotted to the defendant was along the ridge of the paddy R.S.A. No. 525 of 2010 field on its northern side and the way to item No. 2 of B schedule was along the ridge situated on the northern boundary of A schedule property which is the western boundary of the said item of property. 5. According to the defendant, Item No 2 to plant B schedule is accessible easily from the road along the northern boundary of H schedule property of the partition deed and the same was being used as a way to the said property. The northern and western side of the plaintiff's property were open and the plaintiff had been using the ridge of the property as access to reach the plaint B schedule property. 6. The trial court raised issues on the identity of the plaint A schedule property and also as to whether he is entitled to right of way to plaint A schedule property on the basis of his claim of easement of necessity through the defendants property. The trial court found that the plaint A schedule property has been identified in the commission report. Finding that plaint A, B, and C schedule properties as well as the property shown as H schedule to Ext. A1 partition deed (hereinafter referred to as H schedule) were all part of the single holding covered by Ext. A1 partition deed, the trial court held that there was nothing in the plaint which suggested a particular way being used by the plaintiff as the only way to plaint A schedule ## R.S.A. No. 525 of 2010 property and that the Commissioner had shown the way claimed by the plaintiff to be a longer one than the way which the defendant suggested and found against the claim of easement of necessity. No decree for fixation of the boundary was given while dismissing the suit in its entirety. 7. In appeal, the appellate court found that there is no clear pleading with respect to the plaintiff's claim of right of easement though all the property scheduled were part of a single holding. The distance through the disputed way from the plaint A schedule property to the public road is more than double the distance from the plaint A schedule property to the road through the north of plaint A schedule property. The appellate court finding that there was an alternate pathway negatived the claim of easement of necessity and affirmed the judgment and decree, accepting the case of the defendant that the access to the plaint schedule property was through the northern side of plaint A schedule property which the plaintiff can very well use. These judgments are assailed in the present second appeal. 8. At the time of the admission of the above Second Appeal, the following substantial questions of law were formulated and the learned counsel on either side were heard on that: ## R.S.A. No. 525 of 2010 -6- (i) Whether the courts below were justified in refusing the right of the plaintiff to have a walk way set out identified in Exhibit C3 plan in green shade when the case comes under section 13 (e) of the Indian Easements Act and further when the plaintiff had the said right assured to him under Section 14 of the Indian Easements Act. ii) Whether the Courts below were justified in turning down the plea for demarcation when the defendant denied the plaintiff had the right to set out the way in Section 14 of the Indian Easements Act. G) The courts below erred in turning down the plea of the plaintiff for demarcation of the property held by him from the property of the defendant denied by the defendant in Ext. A2 notice and claimed by the defendant in paragraph 4 of the written statement. 9. The learned counsel for the appellant Sri. B. Krishnan submitted that both the courts had misdirected itself while reaching the conclusion it did. Had the courts below accepted Ext. C3, which suggested that the property is landlocked, then on the admitted facts requirements of Section 13 (e) of the Indian Easements Act is made out and the courts below ought to have granted a decree in tune with ## R.S.A. No. 525 of 2010 -7- Ext.C3 plan, particularly the green shaded portion. The learned counsel also argues that the courts below were not justified in not turning down the relief of demarcation of the properties. He further argues that the appreciation of evidence, both oral and documentary ,has been wrong leading to a faulty determination. 10. The learned Senior Counsel appearing for the defendant, Mr. S.V. Balakrishna Iyer, however, sought to sustain the judgment and decree on the ground that the plaintiff has not pleaded precisely the requirements for putting up a claim of easement and that in the instant case there is overwhelming evidence of the existence of an alternate pathway and the same is clear from the commissioner's plan and report and the admissions of the plaintiff himself . In such a situation the court below cannot be faulted for dismissing the suit. He also relied on the judgments of this court in Mathai v. Kuttan Gopalan [2001 (1) KLT SN 17, Kallen Devi v. Raghavan [2012 (3) KLT 142], Cherootty Balan v. Valayudhan Nair [1998 (1) KLJ 479] and Kochan Ramathan v. Kochan Nataranan [1990 (2) KLJ 617. 11. Heard the learned counsel on either side. 12. The trial court raised an issue regarding the correct identity ## R.S.A. No. 525 of 2010 -8- of plaint A schedule property and found that the property described as A schedule exactly tallies with the property described as item No. 2 in Ext. A1 and that the Commission reports had specifically identified the plaint A, B and C schedule properties and they are marked in Exts. C1, C3 and C6 plans and thus negatived the contentions of the defendant that the plaint A schedule property is not identified. Answering the issue on the question of easement of necessity, the trial court found that since the claim of the plaintiff had arisen on account of a partition of the joint property of several persons, if an easement over the share of one of them is necessary for enjoying the share of another the latter is entitled to such an easement. However, it found that the way suggested by the defendant viz., H schedule property in A1 partition deed, lying on the western side of the plaint A and B schedule properties, which is now in the possession of the wife and children of plaintiff's brother, was an access which is shorter in distance and which the plaintiff can access. 13. The only reason for not claiming an access through H schedule property, according to the plaintiff was that it was in the possession of another and that it was lying on the other side of the water channel. The trial court as well as the appellate court had clearly found that the alternate way pleaded by the defendant was one R.S.A. No. 525 of 2010 -9- over which or adjoining the H schedule property and as such, the owner of the H schedule property ought to have been made a party in the suit. This is more so, as the plaintiff cannot be given the luxury of choosing his way burdening another sharer's property without considering the convenience or feasibility of the way claimed. The commission reports clearly reveal that the way through H schedule property was shorter than the way claimed by the plaintiff and no explanation is forthcoming in the plaint for not claiming the shorter way or against the H schedule owner, who is similarly situated as that of the defendant, being co-sharers under A1 partition deed. Resultantly, the findings of the courts below that the plaintiff has an alternate way through H schedule or adjoining could not have been made without the owner of the H schedule of Ext. A1 in the party array. 14. Accordingly, I find that the owner of the H schedule property must be made a party to the suit which the trial court could have done invoking its power under Order I Rule 10 (2) C.P.C., a power and the duty to implead such party as may be necessary to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit. In the instant case on facts, even if the plaintiff did not want, owner of the H schedule property ought to have been added as a party for an effective adjudication. R.S.A. No. 525 of 2010 -10- 15. Section 13 of the Indian Easements Act,1882 deals with certain rights of easement which come into existence on the severance of one tenement into two separate and distinct tenements. They are created by the mere fact of severance and do not require any other act on the part of the dominant owner or the servient owner previous to their creation. They are the result of the severance itself. The easement of necessity is an easement made absolutely for the enjoyment of the property and not merely for its convenient or reasonable enjoyment. The said claim can be defeated only by proving the existence of an alternate way. The plaintiff who claims the right of passage through the field of another, has to prove that he has no alternative means of access, however inconvenient, to his field. 16. The availability of alternate way is again subject to the condition that the same must be one which the plaintiff can use as of right and not by trespassing upon or at the sufferance of another. The illustration to Section 13(1)(a) of the Easements Act is also relevant in this context: _(a) A sells B a field then used for agricultural purposes only. It is inaccessible except by passing over A's adjoining land or by trespassing on the land of a stranger. B is entitled to a right of way, for agricultural purposes only, over A's adjoining land to the_ R.S.A. No. 525 of 2010 -11- _field sold”._ In the instant case, both the courts found that the plaintiff has a alternate way through as mentioned above without the owners of the property or adjoining the said way, in the party array and without ascertaining whether the said way can be used by the plaintiff as of right as noted above. 17. The courts below had also doubted the bonafides of the plaintiff in claiming the green shaded portion of the way in the commissioner report and not making a claim against the owner of the H schedule property. The report of the commissioner, (Ext. C2) wherein it is noted that there was no direct way to enter the plaint A schedule property and that the way marked in green colour in the Surveyor's plan (Ext. C3) was not seen used. The commission reports and plan, a material piece of evidence has not been considered by both courts in its correct perspective. True there is no pleading that the plaintiff was using a particular way earlier or that it was blocked by the defendant at some point of time. On the contrary, the pleading is that the defendant and the owners of the H schedule property had put up compound walls that made the plaint A schedule property inaccessible. R.S.A. No. 525 of 2010 -12- 18. The plaintiff in a suit for declaration of a right of easement need only to establish the terminal from which and to which the way runs, and he is entitled to have his right of way declared and the rights would be enjoyed in the way the owners of the servient tenement point out as being the track over which the way should be enjoyed and if no track has pointed out, the plaintiff would be entitled to enjoy the right by the nearest route. 19. It is also relevant to note that the appellate court has found that the plaintiff will be able to use the way suggested by the defendant after putting up a slab over the water channel on the northern side of the H schedule property. In short, the very basis for declining the claim of the plaintiff for easement of necessity was the finding that he had an alternate access which for the reason considered above, cannot be sustained. True, the plaintiff could have pleaded better as the plaint is silent about the access he used since partition till the date of the suit or as to when the defendant and the owner of the H schedule property to put up the compound wall blocking his access or why he is not making a claim over the H schedule property when that is a shorter route. However, going by the commission report which indicates that the plaint A schedule property is shown to be a property which is inaccessible, a fresh R.S.A. No. 525 of 2010 -13- adjudication is warranted. 20. I have already held that the findings have been arrived at by the courts below without taking into account the materials available on record and by misdirecting itself in law, which has resulted in travesty of justice. I deem it fit to exercise the power under Section 100 of the CPC to interfere with the concurrent finding and to allow the appeal as no reasons are given by both the courts for not considering the prayer of the plaintiff for fixation of the boundary. Since I have already held that the Commission report in the case, particularly, when it said that there was no way to reach the plaint A schedule property, wrong consideration of both facts and law to arrive at the finding on the existence of alternate pathway, non-impleadment of the necessary party, namely, the owner of the H schedule property, the only irresistible conclusion is that the judgments and decrees of the courts below are liable to be interfered in exercise of the power under Section 100 of CPC. In short, the appreciation of evidence, both oral and documentary has been contrary to legal principles and the same had a material bearing on the decision of the case and the rights of the parties. The substantial questions of law are accordingly, answered in favour of the appellant. R.S.A. No. 525 of 2010 21. Under the above circumstances, I set aside the judgment impugned and that of the trial court and to remit the suit to the trial court for a fresh adjudication in the light of observation noted above. The plaintiff will implead the owner of the H schedule property as mentioned above. It will be open to the parties to request for deputing the Advocate Commissioner again, if they are so advised. Both parties will also be free to adduce further evidence if required. 22. Accordingly, the judgment and decree in A.S. No. 41 of 2008 on the file of the Subordinate Judge's Court, Koyilandy as also the decree and the judgment in O.S. No. 79 of 2007 are set aside. The trial court will dispose of the suit as directed above as expeditiously as possible within an outer limit of six months from the date of first appearance of the parties. The parties are directed to appear before the trial court on 29-08-2022 without any further notice. Second Appeal is allowed as above. ## Sd/-MOHAMMED NIAS C.P., JUDGE. ani/ /TRUE COPY