Entitlement to easement by necessity due to property fragmentation and absence of alternative pathways.

JUDGMENT

(Prayer: Second Appeal is filed under Section 100 of C.P.C, against the decree and judgment passed by the Sub Court, Padmanabhapuram in A.S.No.49 of 2017 dated 11.03.2020 confirming the decree and judgment passed by the Principal District Munsif Court, Padmanabhapuram in O.S.No.19 of 2013 dated 14.09.2017.)

1. The defendants 1 to 4 are the appellants.

2. The plaintiff filed O.S.No.19 of 2013 before the District Munsif Court, Padmanabhapuram for declaration of easement right of pathway by necessity over plaint 'C' schedule property and for consequential permanent injunction restraining the defendants from causing any obstruction to the use of 'C' schedule pathway by plaintiff. The suit was decreed by the trial Court as prayed for. The defendants 1 to 4 filed A.S.No.49 of 2017 before the Sub Court, Padmanabhapuram. The learned Subordinate Judge was pleased to dismiss the appeal. As against the concurrent findings, the present second appeal has been filed by the defendants 1 to 4.

3. The plaintiff has contended that 'A' schedule property belongs to him by way of two sale deeds dated 21.08.1998 and 07.12.2006 marked as Exhibits A1 and A2. According to the plaintiff, the plaint 'B' schedule property lies just west of plaint 'A' schedule property and it belongs to the defendants. However, to the west of 'B' Schedule property lies a channel lane which runs from north to south. The plaint 'C' schedule property is a pathway having a width of 6 links and length of about 94 links which lies west to east lengthwise on the northern most portion of plaint 'B' schedule property. According to the plaintiff, the said 'C' schedule pathway connects the western channel lane and the 'A' schedule property.

4. The plaintiff has further contended that both 'A' and 'B' schedule properties were originally owned by one Sadayan and on his death, it devolved upon his three sons namely, Gnanamani, Ponnumani and Selvamani. After the death of Gnanamani, his son Thankaian sold 6 cents to Sudalaimuthu who in turn sold that 6 cents to the plaintiff under Exhibit A1 sale deed. After the death of Ponnumani, his son Rajamani sold 13.333 cents to the plaintiff under Exhibit A2 sale deed. Selvamani had conveyed 13 cents to his daughter-in-law who is the first defendant in the suit under Exhibit B1. Hence, according to the plaintiff, both 'A' and 'B' schedule properties were originally owned by a common owner and the property got fragmented due to sale. According to the plaintiff, except 'C' schedule property, there is no access to reach the western channel lane to the plaint 'A' schedule property. Hence, the plaintiff claims that the usage of plaint 'C' schedule pathway as of right as easement of necessity. According to the plaintiff, the defendants are attempting to close the plaint 'C' schedule property and they are causing obstruction to the plaintiff. Hence the present suit.

5. The defendants have filed a written statement admitting the sale deeds in favour of the plaintiff. They further contended that there is no such 'C' schedule property which is on the northern most portion of 'B' schedule property. According to the defendants, 'C' schedule property is an imaginary property. That apart, there are several trees which are more than 40 years old in the 'C' schedule property. Hence, nobody can walk through the said 'C' schedule property.

6. The defendants further contended that on the south eastern side of the 'A' schedule property, an alternative pathway is available to the plaintiff to reach 'C' schedule property. Hence, the contention of the plaintiff that 'C' schedule property is a pathway and the plaintiff is having easement of necessity over the said pathway is not legally correct. Hence, he prayed for dismissal of the suit.

7. The trial Court after careful consideration of the oral and documentary evidence arrived at a finding that the plaint 'A' and 'B' schedule properties were originally owned by common ancestor and hence, when the property gets fragme