Sundaran and Valsala v. Thekkevilakkathala Janaki Amma

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 16TH DAY OF OCTOBER 2012/24TH ASWINA 1934 ## **R.S.A.No.166 of 2006** --------------------------------------- (AGAINST THE DECREE AND JUDGMENT DATED 29.9.2005 IN A.S.54/1999 OF THE COURT OF THE SUBORDINATE JUDGE OF TIRUR; FROM THE DECREE AND JUDGMENT DATED 27.2.1999 IN O.S.NO.16/1996 OF THE COURT OF THE MUNSIFF-MAGISTRATE OF PONNANI). ------------------- ## **APPELLANTS/** RESPONDENTS/PLAINTIFFS:- --------------------------------------------------------------- 1. SUNDARAN, KUNIATH HOUSE, THRIKKAVU, PONNANI P.O., MALAPPURAM DISTRICT. 2. VALSALA, W/O.SUNDARAN, KUNIATH HOUSE, THRIKKAVU, PONNANI P.O. MALAPPURAM DISTRICT. BY ADVS.SRI.R.RAJESH KORMATH SMT.PREETHY KARUNAKARAN SMT.M.R.MINI SRI.V.S.ROBIN SMT.MEENA.A. ## **RESPONDENT/** APPELLANT/DEFENDANT:- ------------------------------------------------------------ THEKKEVILAKKATHALA JANAKI AMMA, W/O.GOVINDAN NAIR, PONNANI NAGARAM AMSOM, PALLAPRAM DESOM, PONNANI TALUK, MALAPPURAM DISTRICT. BY ADVS. SRI.K.RAMACHANDRAN SMT.RESHMI RAMKUMAR THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10-10-2012, ALONG WITH R.S.A.NO.167/2006, THE COURT ON 16-10-2012 DELIVERED THE FOLLOWING:- ## K. Vinod Chandran, J - - - - - - - - - - - - - -- - - - - - - - - - - R.S.A.Nos.166 of 2006 & 167 of 2006 - - - - - - - - - - - -- - - - - - - - - - - - - Dated this the 16[th] day of October, 2012 ## JUDGMENT The above appeals arise from divergent findings arising from joint trial of two suits, O.S.Nos.182 of 1995 and 16 of 1996 on the file of the Munsiff-Magistrate, Ponnani. Since the plaintiff in one suit is the defendant in the other, to dispel any confusion, they are referred by their names. 2. Janaki Amma was the plaintiff in O.S.No.182 of 1995, which was a suit for permanent prohibitory injunction restraining the defendants from using any part of the scheduled property belonging to the plaintiff, as pathway to their respective properties. The 1[st] defendant was one Karthyayani and her son and his wife, viz., Sundaran and Valsala, respectively were the 2[nd] and 3[rd] defendants. 3. O.S.No.16 of 1996 was a suit filed by Sundaran and Valsala against the sole defendant Janaki Amma, who is the plaintiff in O.S.No.182 of 1995. The plaintiffs in O.S.No.16 of 1996 claimed declaration of plaint 'B' schedule pathway as being entitled by way of easement by prescription for ingress and egress to their plaint 'A' schedule property. Consequential injunction was also prayed for. RSA.Nos.166/2006 & - 2 - 167/2006. 4. In O.S.No.182 of 1995, Karthyayani and Valsala (D1 and D3) appeared and filed a common written statement. Karthyayani claimed a right of easement by necessity and Valsala claimed a right of easement by prescription through Janaki Amma's property to their respective holdings lying to the north of Janaki Amma's property. 5. The trial Court strangely found both, easement by prescription and necessity, over plaint 'B' schedule property in favour of Sundaran and Valsala and decreed O.S.No.16 of 1996. As a consequence, O.S.No.182 of 1995 was dismissed. 6. In first appeal, O.S.No.182 of 1995 was decreed and O.S.No.16 of 1996 was rejected. 7. The plaintiffs in O.S.No.16 of 1996, who are 2[nd] and 3[rd] defendant in O.S.No.182 of 1995, are before this Court in Second Appeal. Karthyayani died in the meanwhile. Sundaran and Valsala, the appellants herein, contended that they are no longer pressing the claim of Karthyayani and are confining their prayers to the claim of easement by prescription in plaint 'B' schedule property of O.S.No.16 of 1996 and thereby resisting the injunction sought for in O.S.No.182 of 1995. RSA.Nos.166/2006 & - 3 - 167/2006. ## 8. The substantial questions of law raised are the ## following:- - “i. When all the reports and plans of the Commissioners categorically reveal that there is no way on the western side of the properties of P.W.1 and P.W.2, has not the Court below gravely erred in holding without any material that the way to the property of P.W.1 and P.W.2 is on the western side of their properties? - ii. Has not the Court below erred in holding that Lakshmi Amma, the predecessor-in-interest of P.W.1 has obtained lease of the property only the year 1977 and hence the question of claiming prescriptive easement right does not arise at all? - iii. When D.W.1 admitted in her evidence that she was not aware whether the way on the western side of her property could be used as of right, has not the Court below gravely erred in holding that the way to the property of P.W.1 and P.W.2 through the western side of their property? 9. Janaki Amma, by assignment, Exhibit B2 dated 1.8.1977, acquired the plaint schedule properties from one Narayana Iyer. Lakshmi Amma, the kudikidappukari under Narayana Iyer, was having a homestead on the northern boundary of plaint schedule property. Lakshmi Amma, even before the RSA.Nos.166/2006 & - 4 - 167/2006. execution of Exhibit B2, had applied before the Land Tribunal and later had obtained Purchase Certificate of 10 cents of land, wherein she maintained her homestead; by Exhibit A1 Purchase Certificate dated 4.8.1978. This 10 cents of property was assigned by the legal heirs of Lakshmi Amma to Sundaran and Valsala by Exhibit A2 dated 30.1.1992. Long before that Karthyayani, the mother of Sundaran, had acquired a property lying to the north of the kudikidappu from Janaki Amma in the year 1979. Janaki Amma's property as it then existed is the plaint schedule property in O.S.No.182 of 1995. However, by a mistake, the plaint schedule included the land covered by Exhibit A1 Purchase Certificate. On being apprised of such mistake, the plaint was suitably amended. Janaki Amma's property scheduled in O.S.No.182 of 1995 is termed as the plaint schedule property and item No.1 and 2 in this judgment and the kudikidappu is referred to as 'A' schedule and the pathway is referred as 'B' schedule. 10. Commissions were taken out in both the suits and the report was once remitted in each suit. Thus, there were, in all, four Commission Reports and plans. Exhibit C5 and C6 are the report and plan of the Commission taken out in O.S.No.182 of 1995 RSA.Nos.166/2006 & - 5 - 167/2006. and based on the inspection of 5.12.1995. The Commission Report on being remitted, the same Commissioner visited the property again on 27.8.1998 and filed Exhibit C7 report and Exhibit C8 plan. The Commissioner deputed in O.S.No.16 of 1996 first visited the property on 20.1.1996, leading to Exhibit C1 report and Exhibit C2 plan. That Commissioner again visited the property on 23.9.1998 and filed Exhibit C3 report and Exhibit C4 plan. The trial Court while placing entire reliance on the Commission Reports filed in O.S.No.16 of 1996, found the reports of the Commissioner in the other suit to be not reliable. The first appellate Court, however, placed reliance on the Commission Reports filed in O.S.No.182 of 1995 and drew support from the reports filed in O.S.No.16 of 1996. By reason only of clarity, this Court would refer to Exhibits C8 and C4 plans. 11. The plaint schedule property in the possession of Janaki Amma has two pieces, which are referred to in the plaint schedule as item Nos.1 and 2. Item No.1 is on the east, with a residential house and is fully covered on all sides by a boundary wall. The entrance is on the south. Item No.2 lies to the west. To the north-east corner of item Nos.1 and 2, lies the property of RSA.Nos.166/2006 & - 6 - 167/2006. Sundaran and Valsala ('A' schedule kudikidappu). To the north of Janaki Amma's property as also the kudikidappu, lies the property of Karthyayani. 12. In O.S.No.182 of 1995, Karthyayani claimed that she had ingress and egress from her property by a pathway going towards west through the northern boundary of Janaki Amma's property and after the kudikidappu, she enters Janaki Amma's property and proceeds south-east to join plaint 'B' schedule pathway midway and then through the southern boundary of item No.2, enters the public road lying on the southern boundary of Janaki Amma. The south-eastern pathway cutting across Janaki Amma's property has been shown with dotted lines in Exhibit C4 plan. Karthyayani claimed easement by necessity, since it was from Janaki Amma that she acquired her property. 13. Sundaran and Valsala, however, contended that they had no access to the west and they had an open, continuous, peaceful use of plaint 'B' schedule pathway by virtue of such user by Lakshmi Amma, who obtained kudikidappu in the property. It was the case of Sundaran and Valsala that Lakshmi Amma had been using plaint 'B' schedule pathway for ingress and egress into RSA.Nos.166/2006 & - 7 - 167/2006. her homestead, at least from 1.1.1970, on which date she definitely had possession of that property, since Purchase Certificate, Exhibit A1, was granted to her by virtue of the provisions of the Kerala Land Reforms Act, 1963 (for short “KLR Act”). Karthyayani, Sundaran and Valsala would assert that their only point of entry and exit was through the southern boundary of item No.2, more specifically plaint 'B' schedule lying adjacent to the western boundary wall of item No.1. 14. Janaki Amma would, however, contend that the properties to the north also belong to her and there were numerous homesteads to which pathway was provided through her own property towards the west on the northern boundary of the item shown as No.2 in the plaint of O.S.No.182 of 1995. That pathway proceeded to the west and reached the Ponnani-Palakkad road lying to the west of the properties which are the subject matter of both suits. Janaki Amma's case was that plaint 'B' schedule was not a pathway and was merely a water channel. Item No.1 on its north-eastern extremity had a pond. During rainy season, the said pond would overflow and water would pass through a channel built from east to west and then again flow from RSA.Nos.166/2006 & - 8 - 167/2006. north to south. This north-south channel was attempted to be projected as a pathway for reason only of it being slightly lower in level than the rest of item No.2. This difference, according to Janaki Amma, was by only reason of it being a water channel and the sand on it having eroded. 15. The learned Munsiff held that Lakshmi Amma had access to her kudikidappu from the public road through plaint 'B' schedule pathway. But, it is not clear as to on what evidence such a finding was entered into. The learned Munsiff assumes, on getting kudikidappu, Lakshmi Amma **would have** (sic) used the public pathway located on the south of Janaki Amma's property to reach her kudikidappu. This is without noticing that though she had been in occupation of the homestead, it acquired a separate identity of 10 cents of property as a kudikidappu only on Exhibit A1 Purchase Certificate in the year 1978. No easement by way of prescription could have been perfected if the user was from 1978. The learned Munsiff also finds that there is a pathway from Ponnani-Palakkad road; but the same was not one used as of right. It was also noticed that all witnesses of the plaintiff had admitted a pathway as mentioned in Exhibit C5 report and Exhibit C6 plan. It is RSA.Nos.166/2006 & - 9 - 167/2006. also pertinent that Karthyayani purchased her property in 1979 and it was the case of Janaki Amma that she had provided a pathway proceeding to the west and on to Ponnani-Palakkad road for Karthyayani and the other assignees, through her own property. It was the finding of the learned Munsiff that all the witnesses of the plaintiff agreed that it could not be used as a means of access to the kudikidappu of Lakshmi Amma. In such circumstance, by reason of the long, continuous and uninterrupted use of Lakshmi Amma, the learned Munsiff finds both easement of necessity as also prescription upon plaint 'B' schedule pathway. 16. The first appellate Court after elaborate discussion of the evidence and consideration of the documents and Commission reports, negatived the claim of necessity put up by Karthyayani and that of prescription put up by Sundaran and Valsala. The learned counsel for the appellants would contend that such a finding was entered into by the first appellate Court on a wrong appreciation of the evidence placed on record and placing reliance on certain discrepancies in the plaint in another suit filed as O.S.No.197 of 1995 by Karthyayani against Janaki Amma. The first appellate Court also placed heavy reliance on a Commission RSA.Nos.166/2006 & - 10 - 167/2006. Report and plan in a suit (O.S.No.185 of 1993) filed by Janaki Amma against the Kerala State Electricity Board and its officials with respect to drawing of electric lines over her property. Exhibits A7 and A8 were the report and plan prepared by the Commissioner in the said suit in which neither Karthyayani, Sundaran or Valsala were parties. In addition to the erroneous approach made with respect to the evidence on record, it is contended on behalf of the appellants that the reliance placed on the plaint in another suit as also the report and plan of a Commissioner appointed in yet another suit was totally irrelevant material. The reliance placed on such irrelevant material would itself vitiate the first appellate judgment, is the contention. 17. This Court being called upon to decide the issue in a second appeal, it is the appreciation of evidence by the first appellate Court that would assume significance, especially since the lower Courts expressed divergent views. It is submitted on behalf of the counsel for the respondent that it is evident on a reading of the deposition of D.W.1, Janaki Amma, that the plaint in O.S.No.197 of 1995 and the Commission Report and plan, Exhibits A7 and A8, were marked in evidence without any objection. They RSA.Nos.166/2006 & - 11 - 167/2006. are certified copies obtained from the concerned Courts. In any event, what has to be looked into by this Court is, if the said materials are found to be irrelevant and such material is to be eschewed from consideration; then would a different conclusion emanate from the evidence on record? Can the appreciation of evidence by the first appellate Court be said to be erroneous? 18. The first appellate Court considered the reports and plans marked as Exhibits C1 to C8 before the trial Court. Exhibits C5 and C6 as also Exhibits C7 and C8 shows a pathway leading from the Ponnani-Palakkad main road lying to the west of the plaint scheduled properties, having direct access into the property of both Karthyayani, and Sundaran and Valsala. The said Commission Reports and plans also show a road on the southern boundary of Janaki Amma's property, proceeding to a temple lying to the south-east of the said property. The opening on the southern boundary of item No.2, according to the Commissioner in O.S.No.182 of 1995 provides access to item No.2 property. It has also been noticed that entering item No.2 through the southern entrance if one proceeds further north, it leads to 'A' schedule property. That alone is not sufficient to establish the claim of RSA.Nos.166/2006 & - 12 - 167/2006. easement by prescription put up by Sundaran and Valsala. It would be apt to notice that the existence of an alternate way on the northern boundary going towards the west and into the Ponnani-Palakkad road also would not disentitle Sundaran and Valsala from the right of easement claimed by them through plaint 'B' schedule pathway, since the claim is one of prescription by use for more than twenty years without force, without stealth and without license (nec vi nec clam nec precario). The first appellate Court found that the Commissioner in O.S.No.16 of 1996 also found that it is possible to reach 'A' schedule through the way suggested by Janaki Amma on the northern extremity. The first appellate Court, in addition to the above, has also placed heavy reliance on the Commission Report and plan in O.S.No.185 of 1993, Exhibits A7 and A8, as also the plaint in O.S.No.197 of 1995 both of which, for the moment, this Court is not looking into. In any event, the plaint in O.S.No.197 of 1995 speaks of a pathway through the western boundary of the 2[nd] item of Janaki Amma's property, which claim though made by Karthyayani, she corrects it as a mistake and evidently there is no such pathway as claimed by any of the parties or evidenced in any of the reports filed by the Commissioners. This RSA.Nos.166/2006 & - 13 - 167/2006. claim also cannot be mixed up with the access of Karthyayani, as also Sundaran and Valsala to a pathway proceeding to the west and on to the Ponnani-Palakkad road. 19. Valsala was examined as P.W.1. She comes to the locality after her marriage to Sundaran, about 14 years from 1999, i.e., around 1985. She comes into her marital home lying to the north of Janaki Amma's property, acquired by her mother-in-law Karthyayani in the year 1979. 'A' schedule was purchased by Valsala's husband Sundaran only in the year 1992 by Exhibit A2. While she asserts that her husband and herself as also their predecessor in interest Lakshmi Amma had been using plaint 'B' schedule property as of right and without any hindrance and without any secrecy; she does not have a claim that Karthyayani had any access to plaint 'B' schedule pathway through 'A' schedule. P.W.1, however, though having lived with Karthyayani for about seven years prior to the acquisition of 10 cents by Exhibit A2, pleads ignorance as to any access towards the west. The questions put to her regarding the pathway towards the west were answered not as a denial, but with a mere single syllable expression of ignorance. In cross examination, she would assert that she has RSA.Nos.166/2006 & - 14 - 167/2006. never gone through the pathway to the west from Karthyayani's house. P.W.1 also does not concede any right to Karthyayani to use plaint 'B' schedule pathway to directly access Karthyayani's property through 'A' schedule. P.W.1 asserts that Karthyayani always proceeded to the west and after the kudikidappu, enters Janaki Amma's property and cuts across that property to reach plaint 'B' schedule. In chief examination, her contention is that anybody coming from the temple on the south-eastern side enters the 2[nd] item of Janaki Amma's property and cuts across that property in a north-westerly direction to proceed north. (The dotted line shown in Exhibits C2 and C4). Karthyayani, P.W.2, also does not claim such an access to her property through 'A' schedule. Karthyayani's pleadings in the written statement and her deposition would clearly show that she had been using the pathway proceeding from her property to the west. P.W.2 claims that on proceeding to the west immediately after 'A' schedule, she enters Janaki Amma's property and proceed diagonally in south-east direction to enter plaint 'B' schedule pathway and go out through the southern boundary of the 2[nd] item of Janaki Amma. RSA.Nos.166/2006 & - 15 - 167/2006. 20. The evidence of P.Ws 1 and 2 on a combined reading would clearly establish that there was a way starting from Karthyayani's property, proceeding to the west in front of 'A' schedule, which lies to the immediate south of such pathway and proceeds further to end in the Ponnani – Palakkad road. P.W.2 categorically states that from Ponnani – Palakkad road, to the west of A.M.Medical Shop, there is a pathway which goes to the south and then to the east and eventually reaches her property. This version lends credence to Exhibits C7 and C8 plans prepared by the Commissioner in O.S.No.182 of 1995. Hence, from the evidence it is clearly established that both Karthyayani as also Sundaran and Valsala had ingress and egress from their property towards the west, leading to the Ponnani – Palakkad road. The claim of necessity by Karthyayani fails, nor is it pressed. The said pathway evidently has been provided by Janaki Amma herself through her property. The necessity, in any case, stands satisfied by that pathway proceeding to the west from Karthyayani's property. 21. The access through the pathway provided for Karthyayani and the adjacent land owners definitely cannot result in non-suiting Sundaran and Valsala. Their claim is one of RSA.Nos.166/2006 & - 16 - 167/2006. prescription, through their predecessor-in-interest Lakshmi Amma, who obtained kudikidappu in the property. The user of Sundaran and Valsala definitely can only commence from 1992, more specifically the date of acquisition by Exhibit A2. Lakshmi Amma, as is pointed out, had obtained Purchase Certificate, Exhibit A1, by virtue of the provisions of the KLR Act. Such grant could have materialized only on her being in occupation of the homestead on 1.1.1970, the notified date. As noticed above, the property covered by Purchase Certificate, Exhibit A1, acquired a separate identity as 10 cents of kudikidappu only on such Purchase Certificate being issued in the year 1978. A claim of user from that date would not perfect the right of easement by prescription at the time of filing of the suit. This is why the plaintiffs in O.S.No.16 of 1996 claimed a prior date, i.e., 1.1.1970, to be the date from which the pathway was used. 22. The learned counsel for the appellants would also rely on a judgment of this Court in **Radha v. Ramachandran, 2002 (2) KLT 41,** in which this Court held that when certain rights are conferred under the KLR Act by issuance of a Purchase Certificate, it is in the nature of declaration of such right by the RSA.Nos.166/2006 & - 17 - 167/2006. statutory authority on the finding that the conditions referred to in the Act are satisfied. Such a declaratory relief when granted, relates back to the date on which the occupation has commenced. It was also held that if a pathway has been used prior to the issuance of a Purchase Certificate, then the right to use such pathway does not arise from the date on which the Purchase Certificate was issued, but from the date of occupation of the hut, **if actually such user was there** . The said decision is definitely apposite in resolving the issue. The learned Single Judge also clarifies: “In other words if the plaintiffs are able to show that they are using the pathway even prior to the date on which the purchase certificate was issued to him, then they are certainly entitled to include those period also for the purpose of reckoning the 20 years period”. 23. There, it is to be noticed, that, the plaintiffs, who were the appellants, were also the kudikidappukars, who filed an application before the Land Tribunal and obtained Purchase Certificate. Here, the plaintiffs are assignees under a person who obtained a Purchase Certificate as per the provisions of the KLR RSA.Nos.166/2006 & - 18 - 167/2006. Act. Exhibit A2 is the deed by which Sundaran and Valsala were assigned the kudikidappu perfected by Lakshmi Amma. Exhibit A2 has been executed by the legal heirs of Lakshmi Amma, more specifically by her grand-children. The said legal heirs, as per the recital in the deed, speaks of their parents having resided along with Lakshmi Amma in that property. Lakshmi Amma, hence, was not alive at the time of Exhibit A2. But she had been residing in 'A' schedule with her family members. None of them were examined by the plaintiffs in O.S.No.16 of 1996, to establish their claim. 24. Exhibit A2 deed shows a wall on the southern boundary of the kudikidappu. Neither the recital nor the schedule shows the existence of any pathway. The schedule shows the whole of the property of Narayanan Nair on the southern boundary. Narayanan Nair is the husband of Janaki Amma. Exhibit A1, the Purchase Certificate, speaks of a sketch attached to it, but the same is not produced in Court. 25. P.W.1 as also P.W.2 speaks of a number of households on the northern boundary of item No.2 of Janaki Amma's property as having been regularly using the pathway through item No.2 to reach plaint 'B' schedule, for ingress and RSA.Nos.166/2006 & - 19 - 167/2006. egress to their respective properties. None have been examined. P.W.3 is the brother of Karthyayani, who also has an interest in Karthyayani's property. P.W.4, a person of the locality, unequivocally declares his hostility towards Janaki Amma. He, on no count, has a claim that he uses any part of Janaki Amma's property for ingress and egress to his property. In fact, he states in cross examination that the pathway leading from Ponnani-Palakkad road to Karthyayani's house also provides access to Sundaran's house, 'A' schedule. It is the evidence of P.W.1, P.W.2 and P.W.4 and the Commission Reports that were relied on by the lower appellate Court to enter its finding. The plaint in another suit as also the Commission report and plan in yet another suit had also been discussed elaborately by the lower appellate Court. However, from the overwhelming evidence of P.W.1, P.W.2 and P.W.4 and that discernible from the Commission Reports, one can only arrive at the conclusion that has been arrived at by the first appellate Court. The irrelevant materials projected by the counsel for the appellants, even if eschewed, this Court cannot come to a different conclusion. The approach of the first appellate Court cannot at all be said to be erroneous. RSA.Nos.166/2006 & - 20 - 167/2006. 26. The reports and plans of the Commissioner clearly shows an alternate way from Karthyayani's property going towards the west and falling into the Ponnani-Palakkad road. Again, this is not to be confused with the claim of a pathway on the west, which was stated to be a mistake in the plaint of O.S.No.197 of 1995. Sundaran and Valsala also have access through that pathway for ingress and egress into their property covered by Exhibit A2. The finding of fact entered into by the first appellate Court that there is a way from the respective properties of Karthyayani and Sundaran and Valsala cannot give rise to a question of law. That finding is one eminently possible from the evidence on record, even going by the evidence of P.W.1 and P.W.2, the mother and daughter-in-law. The prescriptive easement right claimed under Lakshmi Amma has to be established as being in use continuously, peacefully, openly and as a matter of right from the date of occupation by Lakshmi Amma. The identity of 10 cents having crystallized as distinct and separate from the property at the time when the Purchase Certificate was issued may not be, by itself, relevant for deciding the claim of prescriptive right. However, it is for the plaintiffs to establish that they and their predecessor in interest had been RSA.Nos.166/2006 & - 21 - 167/2006. exercising such rights for more than twenty years nec vi nec clam nec precario. That is totally absent in the said case. 27. The question of law raised as to the admission of D.W.1 regarding the absence of any pathway on the western boundary also does not arise. The discrepancies in the plaint in another suit relied on by the first appellate Court has not been looked into by this Court and it has also been found that even if that document is not looked into, the conclusion would not be otherwise. The pathway to the west and access to Ponnani-Palakkad road stands established. D.W.1, Janaki Amma, in any case, specifically pleads that she herself has provided way to Karthyayani, which proceeds from Karthyayani's property to the west. Sundaran and Valsala too had access through this way. They have failed to establish the claim set up in O.S.No.16 of 1996. 28. The first appellate Court has considered the evidence elaborately and in detail. The consideration cannot at all be said to be erroneous. The appreciation is perfectly legal and proper. The conclusions too are eminently possible from the evidence on record. What has been found to be irrelevant by this Court, if eschewed, would even then lead to the conclusion arrived RSA.Nos.166/2006 & - 22 - 167/2006. at by the first appellate Court. Less said the better about the trial Court judgment, which grants both easement by necessity as also prescription. True, the right of necessity and prescription were pleaded with respect to different properties; Karthyayani's and 'A' schedule. In **Kallen Devi v. Raghavan, 2012 (3) KLT 142,** it was held that even assuming that a plaintiff could take up inconsistent pleas, he had to elect from one of them at least at the time of evidence. O.S.No.16 of 1996 was consistent with the plea of Valsala taken up in defence of O.S.No.182 of 1995. But, they failed to establish it. The Second Appeals fail and they are, accordingly, dismissed with costs throughout. Sd/K. Vinod Chandran, Judge vku/- ( true copy )