Point of Law : Court held, “...the alternate access should be one which could be used as a matter of right and not at the sufferance of somebody”.

JUDGMENT :

The plaintiffs in a suit for declaration of easement of right of way and for prohibitory injunction against obstruction of the way, are the appellants. The suit was concurrently dismissed by the Courts.

2. Plaintiffs 1 and 2 are the wife and husband respectively. The plaint 'A' schedule property belongs to the first plaintiff-wife as per document No.2157/1974. Along with the plaint, the plaintiff has produced a rough sketch showing the lie of the properties. For the sake of convenience the properties are referred to as marked in the sketch. In the said sketch, the plaint 'A' schedule is marked as plot 'A'. On the immediate northern side of the plaint 'A' schedule property (Plot-A), is the plaint 'B' schedule property belonging to the second plaintiff-husband (Plot-B). It was purchased by the second plaintiff as per Ext.A1 sale deed of the year 1989. To its immediate north is the property of defendants 1 and 2 which is shown as 'D' plot in the rough sketch. On its eastern side, lies plot number 'E' and to its east is plot 'F' which belong to defendants 3 and 4 respectively. On the eastern side of plot 'F' is a public road which lies in north-south direction. From the said public road towards plot-D and along the northern side of plots 'E' and 'F' is a way marked as plot 'C'. According to the plaintiffs, for their access to the eastern public road they have access to the plot ‘C’ way through the property of defendants 1 and 2 through the way marked in the rough sketch in dotted lines as 'W'. The plaintiffs claim easement right over the way portion marked as 'W' and injunction is sought regarding the same.

3. The defendants denied the existence of the way (plot W) as claimed by the plaintiffs and also the right of way. It was further contended that the plaintiffs have other access to their properties.

4. The courts found that the plaintiffs have failed to prove the existence of the way (plot W) and the right claimed by them. It was also found that the plaintiffs have other access to their properties. Accordingly the suit was concurrently dismissed. It is aggrieved thereby that this Regular Second Appeal has been filed.

5. Heard learned counsel Sri. A. Jayesh Mohan Kumar on behalf of the appellants-plaintiffs and Sri. T.P. Sajan on behalf of the contesting respondents on the following substantial question of law:-

(i) Does not the evidence on record establish that the alternate access allegedly available to the plaintiffs is not one over which the plaintiffs have a right of user?

(ii) Severance of tenements being not in dispute and the alternate access being not one over which there is a right of access, but is permissive, are not the plaintiffs entitled for easement right of way by necessity?

(iii) When plaint ‘A’ schedule belonging to the first plaintiff-husband was not part of the common tenement, but the adjoining plaint ‘B’ schedule belonging to the 2nd plaintiff-wife was part of the common tenement, will the alternate access if any, to the ‘A’ schedule deprive a claim of easement of necessity by the 2nd plaintiff?

6. That plots 'B', 'C', 'D', 'E', and 'F' were originally held by a single owner is not in dispute; so also is the fact that the plaint 'A' schedule (plot-A) was not part of the said holding. The existence of the Plot ‘C’ way as shown in the rough sketch, leading from the eastern public road to the property of defendants 1 and 2 (plot-D) is not in dispute. The dispute is essentially with regard to the right of the plaintiffs to have access through plot-D belonging to defendants 1 and 2 over the way marked ‘W’.

7. Plots 'B' to 'F' having been under a single ownership and there having been severance of tenements, plot-B is entitled for right of access as an easement on necessity, provided, there is no other access which the said sharer can use as of right. The necessity must be absolute in the sense, if another access is available, though inconvenient, it is no excuse. It deprives a claim for easement of necessity.