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SATHISH NINAN
Balasubramanian, S/O. Parappur Keezhveettuvalappil Narayanan Nair – Appellant
Versus
Velu, (Died; Lhr Recorded) S/o. Thalekkara Velu – Respondent
JUDGMENT :
The plaintiff in a suit for declaration of easement right of way and for mandatory injunction, is the appellant. The suit was dismissed concurrently by the courts.
2. The plaint 'A' schedule property belongs to the plaintiff as per Ext.A4 assignment deed. On the eastern side of the plaint 'A' schedule property is the plaint 'B' schedule property belonging to the defendant. 'C' schedule is the way claimed by the plaintiff for access to the plaint 'A' schedule through the northern portion of plaint 'B' schedule from the public road on the east.
3. The plaint schedule properties originally belonged to one Cheroolli tarwad. As per Ext.A1 partition in the family, of the year 1929, a larger extent including the plaint schedule properties was partitioned. Plaint 'A' schedule is item No.3 in Ext.A1 partition. Exts.A2 to A4 are the subsequent conveyances, Ext.A4 being the conveyance in favour of the plaintiff.
The plant 'B' schedule was included as item No.15 in Ext.A1 partition. At the time of Ext.A1 partition, the said property was in the possession of Velu, the predecessor-in-interest of the defendants on a lease arrangement. To the east of the plaint 'B' schedule (item No.15 in E
Existence of an alternate way disentitles a claim for easement by necessity.
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”.
Entitlement to easement by necessity due to property fragmentation and absence of alternative pathways.
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.
A plaintiff claiming a right of easement must demonstrate continuous, uninterrupted use for the statutory period to establish the claim, as per the Easements Act, 1882.
Easement rights granted in an original deed cannot be extinguished by a subsequent property assignment.
The right to use a path for accessing one's property can be established through long-term use and relevant property documents, regardless of explicit claims under the Easement Act.
The existence of an alternate way does not negate a party's right to assert an easement by grant under a testamentary disposition.
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