Tharayil Thithikutty Umma and Kapliyankattel Kunhu @ Kunhimarakkar v. Maimoona and others

**C. R.** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **FRIDAY, THE 5[TH] DAY OF AUGUST 2022 / 14TH SRAVANA, 1944** **RSA NO. 825 OF 2004** **AGAINST THE JUDGMENT IN AS 95/2002 OF SUB COURT, TIRUR OS 148/2001 OF MUNSIFF MAGISTRATE COURT, PONNANI** **-----** ## **APPELLANTS/APPELLANTS/PLAINTIFFS:** 1 THARAYIL THITHIKUTTY UMMA D/O. VEERAVU. 2 KAPLIYANKATTEL KUNHU @ KUNHIMARAKKAR S/O. MAMU ALIAS MUHAMMED. APPELLANTS ARE R/AT MARANCHERI AMSOM DESOM IN, PONNANI TALUK. BY ADVS. SRI.T.SETHUMADHAVAN SRI.K.JAYESH MOHANKUMAR SRI.PUSHPARAJAN KODOTH ## **RESPONDENTS/RESPONDENTS/DEFENDANTS:** 1 MAIMOONA, W/O. MANAKKA PADIKKAL KAPYARATHU AVUNNI. ***** 2 MANAKKA PADIKKAL KAPYARATHU AVUNNI S/O. VEERAVU **(DIED) (LEGAL HEIRS IS RECORDED)** *[AS PER THE ORDER DATED 03.08.2016 ON MEMO VIDE C.F. 2182/2016 DATED 01.04.2016 THE 3RD RESPONDENT WHO IS ALREADY IN THE PARTY-ARRAY IS RECORDED AS THE LEGAL HEIR OF DECEASED 2ND RESPONDENT.] 3 MANAKKA PADIKKAL KAPYARATHU KADEEJAKUTTY, D/O. VEERAVU. **RSA NO. 825 OF 2004 -4-** 4 ABDULLA, S/O. KUNHU MUSALIYAR. RESPONDENTS ARE R/AT MARANCHERI AMSOM DESOM IN, PONNANI TALUK. BY ADVS. T.P.SAJID T.P.SAJAN S.JATHIN DAS SRI.N.GOPINATHA PANICKER SRI.C.KHALID THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **C. R.** ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.S.A. No.825 of 2004** **= = = = = = = = = = = = = = = = = = Dated this the 5[th] day of August, 2022** ## **J U D G M E N T** The plaintiffs in a suit for declaration of easement of right of way and for prohibitory injunction against obstruction of the way, are the appellants. The suit was concurrently dismissed by the Courts. 2. Plaintiffs 1 and 2 are the wife and husband respectively. The plaint 'A' schedule property belongs to the first plaintiff-wife as per document No.2157/1974. Along with the plaint, the plaintiff has produced a rough sketch showing the lie of the properties. For the sake of convenience the properties are referred to as marked in the sketch. In the said sketch, the plaint 'A' schedule is marked as plot 'A'. On the immediate northern side of the plaint 'A' schedule property (Plot-A), is the plaint 'B' schedule property belonging to the second plaintiff-husband (Plot-B). It was purchased by the second plaintiff as ## **R.S.A. No.825 of 2004** -: 2 :- per Ext.A1 sale deed of the year 1989. To its immediate north is the property of defendants 1 and 2 which is shown as 'D' plot in the rough sketch. On its eastern side, lies plot number 'E' and to its east is plot 'F' which belong to defendants 3 and 4 respectively. On the eastern side of plot 'F' is a public road which lies in north-south direction. From the said public road towards plot-D and along the northern side of plots 'E' and 'F' is a way marked as plot 'C'. According to the plaintiffs, for their access to the eastern public road they have access to the plot ‘C’ way through the property of defendants 1 and 2 through the way marked in the rough sketch in dotted lines as 'W'. The plaintiffs claim easement right over the way portion marked as 'W' and injunction is sought regarding the same. 3. The defendants denied the existence of the way (plot W) as claimed by the plaintiffs and also the right of way. It was further contended that the plaintiffs have other access to their properties. ## **R.S.A. No.825 of 2004** -: 3 :- 4. The courts found that the plaintiffs have failed to prove the existence of the way (plot W) and the right claimed by them. It was also found that the plaintiffs have other access to their properties. Accordingly the suit was concurrently dismissed. It is aggrieved thereby that this Regular Second Appeal has been filed. 5. Heard learned counsel Sri.A.Jayesh Mohan Kumar on behalf of the appellants-plaintiffs and Sri.T.P.Sajan on behalf of the contesting respondents on the following substantial question of law:- _(i) Does not the evidence on record establish that the alternate access allegedly available to the plaintiffs is not one over which the plaintiffs have a right of user?_ _(ii) Severance of tenements being not in dispute and the alternate access being not one over which there is a right of access, but is permissive, are not the plaintiffs entitled for easement right of way by necessity?_ _(iii) When plaint ‘A’ schedule belonging to the first plaintiff-husband was not part of the common tenement, but_ **R.S.A. No.825 of 2004** -: 4 :- _the adjoining plaint ‘B’ schedule belonging to the 2[nd] plaintiff-wife was part of the common tenement, will the alternate access if any, to the ‘A’ schedule deprive a claim of easement of necessity by the 2[nd] plaintiff?_ 6. That plots 'B', 'C', 'D', 'E', and 'F' were originally held by a single owner is not in dispute; so also is the fact that the plaint 'A' schedule (plot-A) was not part of the said holding. The existence of the Plot ‘C’ way as shown in the rough sketch, leading from the eastern public road to the property of defendants 1 and 2 (plot-D) is not in dispute. The dispute is essentially with regard to the right of the plaintiffs to have access through plot-D belonging to defendants 1 and 2 over the way marked ‘W’. 7. Plots 'B' to 'F' having been under a single ownership and there having been severance of tenements, plot-B is entitled for right of access as an easement on necessity, provided, there is no other access which the said sharer can use as of right. The necessity must be ## **R.S.A. No.825 of 2004** -: 5 :- absolute in the sense, if another access is available, though inconvenient, it is no excuse. It deprives a claim for easement of necessity. Though law in the said regard is too well settled, for the sake of completeness reference could be made to _**Velayudhan v. Padmanabhan [1988 (2) KLT 417]**_ , _**Ram Mohan v. Narayanan Namboodiripad [1990 (1) KLJ 89]**_ . Plot ‘A’ being not part of the said holding, the 1[st] plaintiff cannot raise such a claim of easement of necessity for the said plot. Therefore, the only question is as to whether the 2[nd] plaintiff is entitled to a way of necessity to the plaint 'B' schedule (plotB). Two questions crop up; (i) Will the access if any, for the plot ‘A’ owned by the first plaintiff deprive a claim for necessity by the second plaintiff in respect of plot ‘B’, (ii) Is there any alternate access to the second plaintiff, to plot ‘B’. 8. Plot 'A’ belonging to the first plaintiff-wife is on the south of Plot 'B’ belonging to the second **R.S.A. No.825 of 2004** -: 6 :- plaintiff-husband. Though plots ‘A’ and ‘B’ may be lying as a single holding, it is not a co-ownership property. The plots belong to the first and second plaintiffs separately and absolutely. Even assuming that there is an alternate access to plot ‘A’ and that plot ‘B’ also could have access thereto through plot ‘A’, that would not be an access as of right. It is only a permissive user through plot ‘A’. So long as the relationship between plaintiffs 1 and 2 remains cordial, may be the 2[nd] plaintiff could have access through plot ‘A’ and the access available to plot ‘A’. But that will not confer a ‘right of user’. It is only a permissive user consequent on the relationship between the parties. The mere fact that the adjoining property (Plot ‘A’) belongs to the 1[st] plaintiff-wife and that plot ‘A’ has some other access, will not deprive a claim for necessity by the 2[nd] plaintiff-husband, for access to plot ‘B’. _[_ _**See Moideen Haji v. Kadir 1964 KLJ 904 : ILR (1965) 1 Ker. 40].**_ To deprive ## **R.S.A. No.825 of 2004** -: 7 :- a claim of necessity, the alternate way must be one over which the claimant has a ‘right of access’. In _**Kochan Ramanathan v. Kochan Natarajan [1990 (2) KLJ 617]**_ , this Court held, “...the alternate access should be one which could be used as a matter of right and not at the sufferance of somebody”. 9. According to the plaintiffs, there is no other access to the ‘B’ plot. The defendants allege that there are access through the western and southern sides of the plaintiffs properties. The second plaintiff as PW1 has denied the allegation of alternate access. Here the evidence of the defendants is of significance. The first defendant was examined as DW1. She admitted that the alleged access of the plaintiffs towards the west was with the consent of the owners of the said properties. She has in her cross-examination further admitted that the access through the south is through the property of one Chiyamu and Muhammad, and that it is also a **R.S.A. No.825 of 2004** -: 8 :- permissive user. Therefore, even according to the defendants the alternate access pointed out by them are not ones over which the plaintiffs have a right of user. The permission could be revoked by the owners of the said properties at any time. Severance of tenements and non-availability of alternate access having been proved, the second plaintiff is entitled for a right of way to plot ‘B’ as an easement of necessity over the plot 'C' and through plot-D belonging to defendants 1 and 2. Substantial questions of law are answered accordingly. 10. Now the issue is regarding the location and width of the way through plot ‘D’; is it over the portion marked as ‘W’, as claimed by the plaintiffs? Based on Commissioner's Report, the courts noticed that the plaintiffs were not able to prove the existence of a way shown as 'W' in the rough sketch. The plaintiffs allege that the way was closed on the eve of the suit. Be that as it may, it was for the plaintiff to seek for appropriate reliefs for restoration or for laying down ## **R.S.A. No.825 of 2004** -: 9 :- the way. A prayer in the said regard is lacking. There is no evidence regarding the width of the way. The claim is for 4 feet wide way. So also it is seen that the way claimed through the property of defendants 1 and 2 and the way marked as plot ‘C’ in the rough sketch have not been scheduled to the plaint. The way in respect of which the relief is claimed, is to be scheduled to the plaint. Having found that the second plaintiff is entitled for a right of way by easement of necessity through the 'C' plot in the rough sketch, and also through the 'D' plot in the rough sketch belonging to defendants 1 and 2, the width and location of the way through the ‘D’ plot needs to be laid down. The way as claimed by the plaintiffs marked as 'W' in the rough sketch is almost through the middle of the property of defendants 1 and 2. Under Section 22 of the Easement Act, the defendants 1 and 2 are entitled to seek for confinement of easement through a part of their property which is least inconvenient to them. The location/ ## **R.S.A. No.825 of 2004** -: 10 :- alignment of the way is to be fixed by the Court with the assistance of a Commissioner. Anyway, the matter needs to be remanded back to the trial court for the above purposes. The plaintiff can be permitted to have the plaint amended by incorporating appropriate relief and schedules. The defendants shall be permitted to file additional written statement. Accordingly the decree and judgment of the courts below are set aside. The suit is remanded back to the trial court for disposal denovo in the light of the observations above. The trial court shall issue fresh notice of appearance to the parties. The suit being of the year 2001, the suit may be expedited. Sd/- **SATHISH NINAN** **JUDGE** kns/- //True Copy// P.S. to Judge