ORDER :

Whether a claim of easement of necessity is mutually incongruous or destructive with that of a claim of prescriptive right of easement or easement by grant and whether it is permissible to plead and raise it together are the questions came up for consideration.

2. The decisions rendered by this Court in (i).Joy Joseph and Others v. Jose Jacob alias Thankachan (2010 (4) KHC 167) (ii) Kochu Nadar v. Kunjan Nadar Gabriel (2011 SCC OnLine Ker 2674) (iii) Kallen Devi and others v. Kizhakkekoroth Raghavan (2012 (3) KLT 142 : 2012(2) KHC 443) (iv). Kamala Devi Amma and others v. Rajan and another (2017 (4) KLJ 700: 2017 KHC 876) and (v). Lilly and others v. Wilson and others (2018 (1) KLT 772 : 2018(1) KHC 623) were relied on by the respondent in support of his argument that both are contradictory and mutually destructive and hence a claim based on easement of necessity and prescriptive right of easement cannot be maintained in a suit.

3. In Joy Joseph's case (supra), by differentiating the distinction between the easement of necessity and easement by prescription, it was held by this court that an easement of necessity and prescriptive right of easement cannot go together.

4. In Kall