The existence of an easement of necessity can be asserted if no alternative access exists, obligating the defendant to allow passage through their property.

JUDGMENT :

C M JOSHI, J.

Heard the learned counsel appearing for the appellant.

2. None appears for the respondent.

3. Being aggrieved by the judgment in R.A.No.2/2003 by learned Civil Judge, Senior Division, Kudligi dated 01.09.2008, which reversed the judgment and decree passed by the Trial Court, the plaintiff is before this Court in appeal.

4. It is the contention of the appellant that he is the absolute owner in possession of the suit schedule property bearing Sy.No.247 on the eastern side and the defendant is the owner of the said survey number on the western side. It is the case of the plaintiff that on the western side of the property purchased by the defendant, there is a north south National Highway and on the northern side of the National Highway there is a Village Hosahalli and on the southern side on the West of the National Highway a village Hulikeri is situated. It is the case of the plaintiff that he and his father and brother were owning Sy.Nos.246 and 245 which is on the southern side of Sy.No.247 and after their partition, the plaintiff was given his share in Sy.No.248. However, he purchased the eastern portion of Sy.No.247 which abuts the property belonging to his brother and father as may be seen from the hand sketch map prepared by the Court Commissioner.

5. It is the case of the plaintiff that in order to approach the property purchased by him, he has to pass through the property of the defendant. Therefore, there is an easement of necessity for him. He also submits that the defendant had purchased his property in Sy.No.247 subsequent to the purchase by the plaintiff and therefore, the defendant has to yield to the requirement of the plaintiff to approach his land through the property purchased by the defendant. Therefore, he contends that he has the right of easement of necessity to pass through the property of the defendant. It is his case that his brother and father are not allowing him to pass through their land though a mud road is shown by the Court Commissioner in his sketch. When there was obstruction by the defendant to use the said cart road to approach his property, there was cause of action and as such, he has filed suit seeking a declaration that he has right of way through the property of the defendant as shown in the hand sketch map.

6. The defendant had appeared before the Trial Court and had filed the written statement. The defendant denied the contention of the plaintiff and stated that the defendant is from Hosahalli Village and the plaintiff is from Hulikere. Therefore, it would be nearer for the plaintiff to approach his property in Sy.No.247 through the property of his brother or father i.e., Sy.Nos.245 and 246. It was stated by the defendant that there is no such easement of necessity as claimed by the plaintiff and when the alternate road is there for the plaintiff to approach his property, there cannot be any easement of necessity. The written statement contends that the topography of the land is such that the plaintiff can approach his land through the property of his father or brother and therefore, there is no need to carve a cart road through the property of the defendant.

7. On the basis of the above pleadings, the following issues were framed by the Trial Court.

“i) Whether the plaintiff proves that he has acquired right of easement of necessity over the suit cart way shown by letters A and B in plaint sketch in defendants land Sy.No.247 & 248 as contended?

ii) If so, whether plaintiff proves the illegal interference by defendant as contended?

iii) Whether the plaintiff is entitled for declaration and injunction as prayed for? iv) What order or decree?”

8. The plaintiff was examined as PW.1 and three witnesses were examined as PW.2 to PW.4. Ex.P.1