A party asserting an easement must substantiate their claim with usage records and circumstances distinguishing between necessity and prescription rights.

JUDGMENT :

T.R. Ravi, J.

Both these original petitions arise from O.S.No.128 of 2025 pending before the 1^st Additional Munsiff Court, Ernakulam. The petitioner in O.P(C).No.1706 of 2025 is the plaintiff in the suit and the respondent is the defendant. The prayer in Ext.P1 suit is for a decree declaring that the plaintiff is having a right of easement by prescription over the plaint C schedule road for the enjoyment of plaint A schedule property and for a decree for permanent prohibitory injunction restraining the defendant or any person/persons claiming under him from causing any obstruction of any manner to the plaintiff in enjoying plaint C schedule road, from erecting fence/wall or placing any obstruction across plaint C schedule road. The plaintiff has admittedly purchased the property as per sale deed No.4410 of 2007 of S.R.O. Maradu. The property originally belonged to the Tharavadu of the father of the defendant as per a partition deed executed in 1990. The properties were allotted to the father of the defendant and to the other sharers. According to the plaintiff, the plaint B schedule is the property set apart to the father of the defendant. According to the defendant, the property allotted to the father of the defendant, is the B schedule along with C schedule. After the partition in 1990, there was another partition in 1993 between the legal representatives of the defendant's father. As per the said partition deed, the B schedule along with C schedule was set apart to the share of the defendant, according to the defendant. The plaintiff purchased A schedule property from some other sharers in 2007. It was long thereafter, in 2025, that the plaintiff initiated suit claiming an easementary right through plaint C schedule, which is stated to be a pathway leading from the public road. According to the plaintiff, she has no other way to reach her property. The plaint is not very clear about the right which has been put forward. Even though reference has been made to the earlier documents of 1918 and 1926, it is not necessary to go into same at this stage. The cause of action for the suit is stated to have happened on 03.02.2025 when the defendant attempted to prevent the plaintiff from using plaint C schedule road by constructing a wall separating plaint C schedule and A schedule property and thereby completely locking access to the plaintiff's property. It is further stated in the plaint that the wall was demolished and removed by the plaintiff and her husband and that on 04.03.2025 another temporary obstruction was made by the defendant, which was also removed by the plaintiff. In paragraph 9 a specific case put forward by the plaintiff is that the plaintiff is entitled to use the C schedule road for enjoyment of plaint A schedule property as a right of easement by prescription. However, in the affidavit in support of the plaint, the plaintiff has stated that the suit has been filed for declaring that the plaintiff is entitled to have a right of easement by necessity over plaint C schedule road. In the application for temporary injunction, a copy of which has been produced as Ext.P3, the plaintiff has in paragraph 2 stated that he is having a right of easement of necessity over plaint C schedule road. In paragraph 7, it is stated that the C schedule road is being used for ingress and egress from time immemorial. In paragraph 9, the plaintiff says that the plaintiff has an easement right and perfected the right by easement by prescription. It is also admitted that on two occasions the plaintiff has demolished the obstructions placed on plaint C schedule. The suit was filed on 06.02.2025. An ex-parte commission was issued on 07.02.2025 and a report has been filed. According to the defendant, the wall of the C schedule way was demolished in the morning of