Point of Law: Element of necessity may not be so absolute as in the case of an easement of necessity and unlike it a quasi-easement may not get extinguished by the cessation of the necessity.

JUDGMENT :

The plaintiff in O.S.No.159/2006 on the file of the Munsiff's Court, Nadapuram is the appellant. The defendants are the respondents.

2. Material facts relevant for the adjudication of this appeal are as follows:

2.1. Plaint 'A' schedule property originally belonged to the father of the plaintiff. In 1971, the plaintiff and others assigned their right over the property to Kunhamina and others as per registered deed No.576/71. Subsequently, in 1978 under a registered deed No.2744/1978, the plaintiff acquired right over 'A' schedule property. The plaintiff is the absolute owner in possession of the plaint 'A' schedule property.

2.2. Plaint 'B' schedule property forms part of the property held by the defendants. Plaint 'B' schedule property is a pathway leading to plaint 'A' schedule property from the eastern Changaramkulam-Narikkottumchal road. The pathway has been in existence from time immemorial. Plaint 'B' schedule way runs on the southern side of the property held by the defendants. The plaintiff has no other way than 'B' schedule to access the eastern public road. The plaintiff has been using the plaint 'B' schedule pathway continuously, openly and uninterruptedly from 1978 onwards and even prior to that period, the way was in existence. The plaintiff acquired the right of easement over 'B' schedule property.

2.3. In 2002, defendant No.1 acquired the property on the eastern side of 'A' schedule to which plaint 'B' schedule forms a part. The plaintiff is residing 22 kms away from the plaint schedule property. On 19.11.2006, when she visited the plaint schedule property, either side of plaint 'B' schedule property was found closed by putting fencing, thereby blocking the 'B' schedule way by the defendants. As a result, the plaintiff instituted the Original Suit for a mandatory injunction to remove the blocked fencing and for a perpetual prohibitory injunction against the defendants.

2.4. The defendants resisted the suit contending that no way as described in 'B' schedule exists. There never existed a way through the property of the defendants to access plaint 'A' schedule property from the eastern road. The plaintiff has been using another way through the western side of ‘A’ schedule property to access the public way on the western side. This way runs through the southwestern corner of the property owned by the brother of the plaintiff. The plaintiff has got direct access to plaint 'A' schedule property through the courtyard of her brother's house. The plaintiff, with an ulterior motive, set up the claim that the plaint 'B' schedule way has been in existence through the property of the defendants from time immemorial. Therefore, the plaintiff is not entitled to get the relief as prayed for in the suit.

3. The parties went to trial. PWs 1 to 4 were examined and Exts. A1 to A2 were marked on the side of the plaintiff. DWs 1 and 2 were examined and Ext.B1 was marked on the side of the defendants. Exts.C1 and C2 were also marked as Court Exhibits.

4. The Trial Court decreed the suit in favour of the plaintiff, holding that the plaintiff has right over a way having an average width of 1.5 feet. The defendants challenged the decree of the Trial Court in A.S.No.44/2007. The First Appellate Court set aside the decree and judgment passed by the Trial Court and dismissed the suit.

5. The plaintiff is in appeal before this Court under Section 100 of the CPC.

6. On 27.05.2010, this Court admitted the appeal on the following substantial questions of law:-

“(1) Whether the Lower Appellate Court is justified in finding that for a claim of quasi easement of right of way alternative access will defeat the claim of the plaintiff

(2) Whether the Lower Appellate Court was justified in turning down the claim on a 'pleading point' when pleadings were substantially made by the plaintiff to make out the claim of right of way by quasi-easement.”

7. After hearing the learned counsel for the appellant, this Court formulated the following additional subs