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High Court of Kerala
S. Padmanabhan, J.
Kochan Ramanathan - Appellant
Versus
Kochan Natarajan - Respondent
S.A. No. 185 of 1986
Decided On : 24-09-1990
Easement of Necessity - Pathway - Indian Easements Act - S.13, S.14, S.27, S.28 - The court found that the appellant was entitled to a quasi easement for the pathway shown in Ext. C1 report, which was a gravelled and metalled road, with a uniform width of 21/2 metres, and ordered the respondent to restore the obstructed portion to its original position. The respondent was also restrained by injunction from interfering with the use of the pathway by the appellant in the future.
Fact of the Case:
The appellant filed a suit for declaring the right of easement as of necessity to use a pathway and for prohibitory injunction to restrain the defendant from obstructing user of the way. The trial court found in favor of the appellant, and the appellate judge agreed that an easement of necessity was established but modified the decree, limiting the pathway to a footpath.
Finding of the Court:
The court found that the pathway was used for vehicular access and was intended and used as a convenient pathway for taking automobiles inside the residential buildings. The evidence supported the existence and use of the pathway for vehicular access.
Issues: The main issue was whether the appellate judge was justified in restricting the way to a footpath, and whether the appellant was entitled to a quasi easement for the pathway used for vehicular access.
Ratio Decidendi: The court held that the appellant was entitled to a quasi easement for the pathway used for vehicular access, as it was apparent and continuous in nature and necessary for enjoying the property as it was enjoyed when the transfer took effect. The court also emphasized that the servient owner cannot unilaterally interfere with the user of the pathway and must not render its exercise less convenient.
Final Decision: The second appeal was allowed, and the decree of the appellate judge was vacated. The court declared that the appellant was entitled to the pathway as a quasi easement and ordered the respondent to restore the obstructed portion to its original position. The respondent was also restrained by injunction from interfering with the use of the pathway by the appellant in the future.
Case Summary: Kochan Ramanathan v. Kochan Natarajan (S.A. No. 185 of 1986, High Court of Kerala, decided 24-09-1990) (!) (!)
Facts: (!) [15000420590001]
The plaintiff-appellant and defendant-respondent, cousins sharing a common father (Karamban Kochan), derived properties from him via gift (Ext. A1 to respondent's southern road-front portion) and later partition (Ext. A2 giving appellant the northern residue). [15000420590001] A gravelled and metalled pathway, 2½ metres wide, traversed the respondent's property from the southern public road to the appellant's residence, used by the father for vehicular access including cars, despite no personal ownership of one. [15000420590001][15000420590003][15000420590005] The appellant sued (O.S. 311/1981) for declaration of easement right of necessity over the 15-foot-wide pathway (claimed width), restoration after obstruction, and injunction. (!) [15000420590001] Trial court (Munsiff, Cherthala) upheld the easement and ordered restoration/injunction; appellate court confirmed necessity but restricted to footpath. (!) [15000420590001][15000420590008]
Evidence: [15000420590002][15000420590003][15000420590004][15000420590005][15000420590006][15000420590007]
Appellant (PW1) and neighbours (PWs 2-4) testified to long vehicular use; commissioners (PWs 5-7, Exts. C1-C3) confirmed a well-marked 2½m-wide metalled road to appellant's gate, with remnants post-obstruction (ploughing north of respondent's gate), gates suited for vehicles, and no viable alternative access. [15000420590002][15000420590003][15000420590004][15000420590005][15000420590006][15000420590007][15000420590008] Courts below concurred on pathway existence and exclusive use for both properties. [15000420590008]
Issues: (!) [15000420590009]
Whether the appellant held a quasi-easement for vehicular pathway (not mere footpath), entitling restoration to original metalled condition and future non-interference. [15000420590009]
Court's Findings and Ratio: [15000420590009][15000420590010][15000420590011][15000420590012][15000420590013][15000420590014]
The pathway qualified as a quasi-easement under the Indian Easements Act, arising on severance by transfer/partition: apparent, continuous, and necessary for enjoyment as at severance (vehicular access), beyond absolute necessity. [15000420590010][15000420590011] Unlike strict necessity easements (ending on alternative access), quasi-easements match prior user extent, not reducible unilaterally. [15000420590010][15000420590011] Servient owner (respondent) cannot obstruct, restrict, or lessen convenience (e.g., to footpath); must allow reasonable exercise coextensive with original necessity/user. [15000420590012] Appellate restriction to footpath unjustified given evidence of formed road for vehicles. [15000420590013][15000420590014]
Decision: (!) [15000420590014]
Second appeal allowed; appellate decree vacated, trial decree restored. Appellant declared entitled to quasi-easement over Ext. C1 pathway (2½m-wide gravelled/metalled road from public road to his gate, per attached sketch). (!) [15000420590014] Respondent ordered to restore obstructed portion or bear costs if done via court; permanent injunction against future interference. Parties to bear respective costs due to relationship. (!)
Subject: Property Law - Easements (Quasi-Easement for Vehicular Way; ss.13,14,27,28, Indian Easements Act). [judgement_subject]
S. Padmanabhan, J.
1. Plaintiff is the appellant. He filed O. S.311 of 1981 before the Munsiff, Cherthala for declaring the right of easement as of necessity to use a pathway and for prohibitory injunction to restrain the defendant from obstructing user of the way. He also alleged that the pathway was closed by the respondent. He wanted the pathway to be restored to its original position. The respondent denied the right and its user. He also denied having obstructed the pathway. The trial court found that there was a pathway as alleged by the appellant and that it was obstructed. The respondent was therefore directed to restore the pathway to its original condition. The prayer for injunction was also allowed. In A. S.39 of 1985, the appellate judge also agreed with the trial court that an easement of necessity was established. But the decree was modified and the pathway was limited to a foot path. That is how the plaintiff happened to come up in second appeal.
2. This is an unfortunate litigation between two consanguine brothers. They are the children of sisters, who were the common wives of one Karamban Kochan. Karamban Kochan is their father. He had an item of property touching a public road on the southern side leading from Kanichukulangara to the National Highway. That portion of the property touching the public road was gifted by him on 5-1-1976 under Ext. A1 to the respondent. The remaining portion of the property lying away from the public road to the north of Ext. A1 property was used by Kochan for his residence. Through the western portion or Ext. A1 property, Kochan formed a callable road for access to Ext. A1 property and the remaining portion where he was residing. That portion of the property in which he was residing subsequently came to the share of the plaintiff under Ext. A2 partition dated 5-5-1977 entered into by the appellant, respondent and others after the death of Kochan. The case of the appellant is that the pathway is 15 feet wide extending upto the extremity of his property and that it was used for taking automobiles also. As earlier stated, the existence of such a pathway was denied by the respondent who contended that alternate ways are also available to the appellant.
3. The respondent examined himself as DW 1. One independent witness/was examined by him as DW 2. Appellant was examined as PW 1. PWs 2, 3 and 4 are independent neighbours. PWs. 5, 6 and 7 are Commissioners. Exts. C1, C2 and C3 are the reports submitted by them. The other items of documentary evidence are Exts. A1, A2 and B1.
4. It is admitted by the parties that even though Kochan was not having a car of his own, he was regularly using cars for access to his house. On the southern extremity of Ext. A2 property belonging to the appellant under Ext. A2 partition deed, there are two sheds near the gate constructed north of the boundary wall. It is said that one of the sheds was used by Kochan for parking cars. That is the evidence of PW 1 and that version was supported by PWs 2, 3 and 4. PW 2 is a neighbour, who is running a tea shop nearby. PW 3 is an Advocate practising at Alapuzha and residing near Exts. A1 and A2 properties. He was also a local Panchayat Member. PW 4 gave evidence that he had occasion to come to Kochan's property (Ext. A2) in cars. PWs 2 and 3 also said that to their knowledge Kochan was using the disputed pathway for vehicular access to his residence in Ext. A2 property. There is absolutely no reason to disbelieve these items of evidence especially in view of the reports submitted by the Commissioners and the evidence given by them in the box.
5. PW 5 was the first Commissioner who made local inspection immediately after suit. His evidence that he made local inspection and prepared the report after due notice to the respondent is not disputed and it is so stated in his report also. Therefore, Ext. C1 report prepared by PW 5 could be accepted as evidence along with his deposition.
6. The report and deposition o
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