Variyam Kunnummal Aneesan and Variayam Kunnummal Prasad v Ariyara Meethal Kumaran

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` TUESDAY, THE 21[ST] DAY OF MAY 2024 / 31ST VAISAKHA, 1946 ``` ``` RSA NO. 51 OF 2024 ``` ``` AGAINST THE JUDGMENT AND DECREE DATED 24.02.2023 IN A.S.NO.12 OF 2020 OF SUB COURT, VATAKARA ARISING OUT OF THE JUDGMENT AND DECREE DATED 31.01.2020 IN O.S.NO.223 OF 2015 OF MUNSIFF COURT, NADAPURAM ``` ## **`APPELLANTS/APPELLANTS/DEFENDANTS:`** ``` 1VARIYAM KUNNUMMAL ANEESAN AGED 40 YEARS S/O.KUMARAN, KACHERI AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673005 ``` ``` 2VARIAYAM KUNNUMMAL PRASAD AGED 40 YEARS S/O.KUMARAN, KACHERI AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673005 ``` ``` BY ADV.ZUBAIR PULIKKOOL ``` ## **`RESPONDENT/RESPONDENT/PLAINTIFF:`** ``` ARIYARA MEETHAL KUMARAN AGED 68 YEARS S/O.CHEKKOTTI, RESIDING AT ELAMTHOTTATHIL HOUSE, KACHERI AMSOM DESOM, EDACHERI NORTH POST, VATAKARA TALUK, KOZHIKODE DISTRICT, PIN - 673502 ``` ``` THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21.03.2024, THE COURT ON 21.5.2024 DELIVERED THE FOLLOWING: ``` ``` RSA NO. 51 OF 2024 2 ``` ## **CR** ## **JUDGMENT** Dated this the 21[st] day of May, 2024 This Regular Second Appeal has been filed under Section 100 r/w Order XLII Rule 2 of the Code of Civil Procedure (for short, ‘the C.P.C.’ hereinafter) against the decree and judgment in A.S.No.12/2020, dated 24.2.2023 on the files of the Sub Court, Vatakara, arose out of the decree and judgment in O.S.No.223/2015, 31.1.2020 on the files of the Munsiff Court, Nadapuram. The appellants herein are the defendants in the suit. 2. Heard the learned counsel for the appellants on admission. Perused the trial court records. 3. I shall refer the parties in this appeal as ‘plaintiff’ and ‘defendants’ for convenience. 4. The suit was filed by the plaintiff, seeking the relief of mandatory as well as consequential prohibitory injunction. According to the plaintiff, when plaint schedule properties ``` RSA NO. 51 OF 2024 3 ``` were severed, there arose a necessity to provide a way towards plaint A schedule property. Accordingly, a way through plaint C schedule property was provided through the extreme south side of plaint C schedule property lying in eastwest direction starts from south-east corner of the plaint A schedule property on the west and reaches the mud road on the east. The eastern boundary of the plaint C and F schedule properties is a mud road. According to the plaintiff, plaint B schedule is the way so provided. But the defendants, on 15.9.2015, obstructed B schedule pathway, which necessitated the suit. 5. The defendants entered appearance and denied the severance of tenements. According to the defendants, no way as plaint B schedule available at any point of time and the way for ingress and egress to the plaint A schedule property is a public road from the south which passes through the western fringe of the plaint A schedule property. 6. Trial court ventured the matter and recorded evidence. PW1 and PW2 were examined and Exts.A1 to A9 ``` RSA NO. 51 OF 2024 4 ``` were marked on the side of the plaintiff. DW1 was examined on the side of the defendants. Exts.C1 to C4 were marked as court exhibits. 7. The trial court addressed claim of easement by necessity in terms of Section 13 of the Indian Easements Act, 1882 (for short, ‘the Act, 1882’ hereinafter) and found the contention of the plaintiff in his favour and accordingly, decree was granted as under: - _“In the result, the suit is decreed as follows:-_ _1. The defendants are directed by way of mandatory injunction to set out a pathway having 3 feet width to the plaintiff through the southern boundary of the plaint C schedule property, that also in the route pointed out by the commissioner in Exts.C1 and C2 plan and report._ _2. The plaintiff is permitted to set out a way as stated above with the aid of the court in case the defendants are not inclined to_ ``` RSA NO. 51 OF 2024 5 ``` _set out a way as ordered by this court._ _3. The defendants are restrained by a permanent prohibitory injunction from obstructing the plaintiff from using the said 3 feet width pathway for ingress and egress to Plaint A schedule property._ _4. Exts.C1 to C4 shall form part of the decree.”_ 8. The said verdict was challenged before the appellate court in A.S.No.12/2020 and the learned Sub Judge also concurred the finding of the trial court. 9. While impeaching the concurrent verdicts, the learned counsel for the defendants reiterated the contentions raised before the trial court as well as the appellate court. According to him, the contention of the defendants that plaint B schedule is an imaginary way, created by the plaintiff to set up a false claim and the availability of an alternative way pleaded and proved, were not considered by the trial court ``` RSA NO. 51 OF 2024 6 ``` and the first appellate court and there is failure of proper appreciation of evidence and therefore, the verdicts impugned would require interference. 10. Thus, the simple questions arise for consideration are; _1) What are the essentials to constitute right of easement by necessity? and 2) What will be the nature and stature of an alternative way which is sufficient to defeat the claim for easement by necessity?_ 11. Section 13 of the Act, 1882 deals with easement by necessity and quasi-easements. Section 13 is extracted hereunder: ## _**“13. Easements of necessity and quasi-**_ _**easements** . - Where one person transfers or bequeaths immovable property to another,-_ _(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or_ _(b) if such an easement is apparent and continuous and necessary for enjoying the said_ ``` RSA NO. 51 OF 2024 7 ``` _subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement; or_ _(c) if an easement in the subject of the transfer or bequest is necessary, for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or_ _(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement._ _Where a partition is made of the joint property of several persons,―_ _(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or_ ``` RSA NO. 51 OF 2024 8 ``` _(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement._ _The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity._ _Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.”_ 12. Summarising the essentials to constitute right of easement by necessity, the same are instances stated in Section 13(a) (c) and (e) of the Act, 1882. The same are extracted hereunder: _(a) if an easement in other immovable property of the transferor or testator is_ ``` RSA NO. 51 OF 2024 9 ``` _necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement._ _(c) if an easement in the subject of the transfer or bequest is necessary, for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement._ _Where a partition is made of the joint property of several persons,―_ _(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement._ 13. Thus, it is held that, when severance or separation of joint property by way of transfer or bequest or partition takes effect, if an easement over the share of one of them is necessary for enjoying the share of another among them, the former shall be entitled to such easement. Right of way also can be claimed by pleading and proving right of easement by necessity, consequent to severance of tenements. ``` RSA NO. 51 OF 2024 10 ``` 14. So, in order to substantiate right of easement by necessity, there should be pleading to the effect that the properties were held jointly and on severance, there arose a necessity for enjoyment of a part of the property so separated or severed by burdening another portion of the property. 15. But, it is the well settled law that easement by necessity must fail, when a convenient or inconvenient alternative way is available. It is necessary that the alternative way shall be one capable of connecting the tenement and capable for using the same for the beneficial enjoyment of the tenement. If an alternative way could be suggested and the same is not one reaching the tenement, the same could not be held as an alternative way sufficient to defeat claim of easement by necessity. 16. Coming to the facts of this case, in paragraph No.20 of the trial court judgment, the learned Munsiff extracted evidence of DW1, examined on the side of the defendants to see severance of tenements, based on title deeds Exts.A1 to A7 and the Commission Report, found on ``` RSA NO. 51 OF 2024 11 ``` appreciation of evidence, that the plaintiff succeeded in establishing right of easement by necessity over plaint B schedule to reach plaint A schedule property and the same was blocked by the defendants. 17. Therefore, the contention raised by the learned counsel for the defendants that the trial court and the first appellate court wrongly appreciated evidence to find severance of tenements and right of easement by necessity, cannot be countenanced. 18. Another point argued by the learned counsel for the defendants, suggesting an alternative pathway, so as to defeat claim of easement by necessity, also required to be addressed. Going by the trial court judgment, it was found by the trial court that the alternative pathway suggested by the defendants is not available to reach the plaint schedule property and there is a gap of 3 meters in between the alternative pathway and the plaint schedule property from the said way. DW1 also admitted non availability of this way up to plaint A schedule property, as the same would end on the ``` RSA NO. 51 OF 2024 12 ``` property of Kunjikrishnan. 19. Going by the available materials, it is well discernible that, at present, apart from plaint B schedule pathway, no other pathway is available to reach plaint A schedule property and the alternative pathway suggested by the defendants, is one not capable of reaching the plaint A schedule property, since there is a gap of 3 meters in between the plaint A schedule property and the alternative pathway. When a plea as to availability of alternative way is raised to defeat the claim of easement by necessity in relation to a way, the alternative way should be one connecting the property for which the beneficial enjoyment is essential, and capable of using the same as a way, having access without any interruption. When the alternative pathway is not one available to reach the tenement, the same could not be adjudged as an alternative pathway, so as to defeat the claim of easement by necessity. ``` RSA NO. 51 OF 2024 13 ``` 20. In view of the discussion, it is held that the trial court as well as the appellate court rightly decreed the suit and the said verdicts do not require any interference. 21. In this case, in fact, the learned counsel for the appellant failed to raise any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus: _**“2. Power of Court to direct that the appeal be heard on the question formulated by it.** -At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 22. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any ``` RSA NO. 51 OF 2024 14 ``` other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 23. In the decision in **Nazir Mohamed v. J. Kamala and** ``` RSA NO. 51 OF 2024 15 ``` ## **Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168]** , the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** ._ 24. In a latest decision of the Apex Court in **Government of Kerala v. Joseph** , reported in **[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]** , it was held, after referring **Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179]** (three – Judge Bench) _,_ as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal_ ``` RSA NO. 51 OF 2024 16 ``` _should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court._ 25. The legal position is no more _res-integra_ on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be ``` RSA NO. 51 OF 2024 17 ``` heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 26. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. In the result, this Regular Second Appeal is found to be meritless and the same is dismissed without being admitted. All interlocutory applications pending in this Regular Second Appeal, stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. Sd/- **A. BADHARUDEEN JUDGE** Bb