Existence of an alternate way disentitles a claim for easement by necessity.

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 Ext.A1), is item No.14 in Ext.A1. The said property also became vested with Velu under Ext.A6, Ext.A10 being its prior deed. Thus, the defendants' predecessor was in possession of the plaint 'B' schedule (item No.15 in Ext.A1) and item No.14 in Ext.A1. On the eastern side of item No.14 in Ext.A1 is a public road. The plaintiff claims that he has right of way as an easement of necessity through the plaint 'B' schedule for access towards the eastern public road. According to him, plaint 'C' schedule way is situated on the northern portion of plaint 'B' schedule which was being used by him. The suit is filed on the allegation that the defendants are causing obstructions to the enjoyment of the 'C' schedule way. Accordingly, the suit is filed for a declaration of easement right of way over the 'C' schedule, and for a mandatory injunction to remove the obstructions caused in the way.

4. The defendants denied the existence of the way. It was also contended that the plaintiff has other access to the 'A' schedule property.

5. The trial court found that the way as claimed by the plaintiff -'C' schedule does not exist and also that the plaintiff has access to his property through the way on the south-western corner of 'A' schedule. The appellate court concurred with the findings.

6. Heard learned Senior Counsel Sri.T.Sethumadhavan on behalf of the appellant-plaintiff and Sri.Jamsheed Hafiz on behalf of the respondents-defendants on the following substantial questions of law:-

(i) Is the finding of the courts regarding non-existence of plaint 'C' schedule way, based on materials ?

(ii) Were the courts right in holding that the plaintiff has access to 'A' schedule property through a way situated on the south-western corner of 'A' schedule ?.

7. Ext.C1 is the Commissioner's Report in the suit. The Commissioner could not notice the existence of a way as described in the plaint 'C' schedule leading up to the plaint 'A' schedule. The Commissioner noticed that at the portion claimed as the way, there are various improvements including trees, structures and compound wall. The commissioner noticed arecanut saplings, coconut saplings etc. He noticed that on the way portion claimed by the plaintiff there exist a firewood store which is aged approximately three years, and a kitchen which is approximately four years old. Separating the plaint 'A' and 'B' schedules he noticed a compound wall which is approximately one year old. The trees and other saplings were found to be of at least one year age. Therefore, the physical features do not establish the existence of plaint 'C' schedule way.

8. In Ext.A1, which is the basic document relating to the properties, the description of the northern boundary of item No.14 (which is the eastern most plot) mentions a way, whereas, the northern