IMPORTANT POINT
The main legal point established in the judgment is the requirement for pleading and proving right of easement by necessity, as well as the significance of an alternative way capable of connecting the tenement for beneficial enjoyment.

1. This Regular Second Appeal has been filed under Section 100 r/w Order XLII Rule 2 of the Code of Civil Procedure (for short ‘the C.P.C.’ hereinafter) against the decree and judgment in A.S. No. 12/2020, dated 24.2.2023 on the files of the Sub Court, Vatakara, arose out of the decree and judgment in O.S. No. 223/2015, 31.1.2020 on the files of the Munsiff Court, Nadapuram. The appellants herein are the defendants in the suit.

2. Heard the learned counsel for the appellants on admission. Perused the trial court records.

3. I shall refer the parties in this appeal as ‘plaintiff’ and ‘defendants’ for convenience.

4. The suit was filed by the plaintiff, seeking the relief of mandatory as well as consequential prohibitory injunction. According to the plaintiff, when plaint schedule properties were severed, there arose a necessity to provide a way towards plaint A schedule property. Accordingly, a way through plaint C schedule property was provided through the extreme south side of plaint C schedule property lying in eastwest direction starts from south-east corner of the plaint A schedule property on the west and reaches the mud road on the east. The eastern boundary of the plaint C and F schedule properties is a mud road. According to the plaintiff, plaint B schedule is the way so provided. But the defendants, on 15.9.2015, obstructed B schedule pathway, which necessitated the suit.

5. The defendants entered appearance and denied the severance of tenements. According to the defendants, no way as plaint B schedule available at any point of time and the way for ingress and egress to the plaint A schedule property is a public road from the south which passes through the western fringe of the plaint A schedule property.

6. Trial court ventured the matter and recorded evidence. PW-1 and PW-2 were examined and Exts.A1 to A9 were marked on the side of the plaintiff. DW-1 was examined on the side of the defendants. Exts.C1 to C4 were marked as court exhibits.

7. The trial court addressed claim of easement by necessity in terms of Section 13 of the Indian Easements Act, 1882 (for short ‘the Act, 1882’ hereinafter) and found the contention of the plaintiff in his favour and accordingly, decree was granted as under:

“In the result, the suit is decreed as follows:

1. The defendants are directed by way of mandatory injunction to set out a pathway having 3 feet width to the plaintiff through the southern boundary of the plaint C schedule property, that also in the route pointed out by the commissioner in Exts.C1 and C2 plan and report.

2. The plaintiff is permitted to set out a way as stated above with the aid of the court in case the defendants are not inclined to set out a way as ordered by this court.

3. The defendants are restrained by a permanent prohibitory injunction from obstructing the plaintiff from using the said 3 feet width pathway for ingress and egress to Plaint A schedule property.

4. Exts.C1 to C4 shall form part of the decree.”

8. The said verdict was challenged before the appellate court in A.S. No. 12/2020 and the learned Sub Judge also concurred the finding of the trial court.

9. While impeaching the concurrent verdicts, the learned counsel for the defendants reiterated the contentions raised before the trial court as well as the appellate court. According to him, the contention of the defendants that plaint B schedule is an imaginary way, created by the plaintiff to set up a false claim and the availability of an alternative way pleaded and proved, were not considered by the trial court and the first appellate court and there is failure of proper appreciation of evidence and therefore, the verdicts impugned would require interference.

10. Thus, the simple questions arise for consideration are:

(1) What are the essentials to constitute right of easement by necessity?

(2) What will be the nature and stature of an alternative way which is sufficient to defeat the claim for easement by necessity?

11. Section 13 of the Act, 1882 deals wit