A claim for easement by prescription requires demonstrable evidence of 20 years of uninterrupted use, which must be established by the claimant.

JUDGMENT

Dated this the 22nd day of December, 2022 This appeal has been filed against the judgment and decree in A.S. No.47/2009 on the file of 1st Additional District Court, Ernakulam, which in turn arise out of the judgment and decree in O.S. No.646/2006 on the file of Munsiff’s Court, Ernakulam.

2. Plaintiff is the appellant. The suit is one for declaration and consequential injunction. (Parties would hereafter be referred as per their status before the trial court). Plaint schedule item No.1 property belonged to late Varghese and Chacko and they partitioned the property as per deed No.931/1965 of Sub Registry Office, Ernakulam. As per the registered Will No.6/1990 plaintiff’s father Chacko bequeathed his property to the plaintiff. Father of the plaintiff died on 28.12.1990 and thereafter the plaintiff became the absolute owner of the plaint item No.1 property, which is comprised in survey No.359/1 instead of 586/1 referred in the title deed. Plaintiff and his predecessor were enjoying the plaint item No.2 path way for ingress and egress to plaint schedule item No.1 property from Kochappilly road on the eastern side. The open, public, notorious and uninterrupted enjoyment of plaint schedule item No.2 as of right ripened into a full fledged right of easement by prescription. There is no other way to plaint item No.1. When there was attempt on the part of the defendants to destroy the way by putting up the compound wall across plaint item No.2, the suit was filed.

3. Defendants filed written statement contending that plaintiff has no right of easement through plaint item No.2 path way. The property on the eastern side of plaint item No.1 is 22 cents of land, through which the plaintiff is claiming easement by prescription and necessity and it was never used by the plaintiff or his predecessors in interest. The plaintiff’s grandfather’s property is on the south and it is not extended upto Kochappilly road and it is the ingress and egress to plaint item No.1 property. The property on the south of plaint item No.1 belongs to the plaintiff’s uncle, who obtained the same from his father Thomas and there is a road on the southern side of that property which goes to Kochappilly road. The plaint schedule property belongs to the plaintiff’s wife.

4. Subsequently additional defendants 2 and 3 were impleaded and they also filed written statement contending that item No.2 path way is not in existence. The right of the plaintiff through the property of the defendants is also stoutly denied.

5. PW1 examined. Ext.A1 and Ext.A2 marked from the side of the plaintiff. The Commissioner was examined as court witness. Exts.C1 and C2 were also marked.

6. On evaluating the facts, circumstance and evidence adduced, the trial court found that plaint schedule property is not identified, since the plaintiff failed to produce any document to prove the survey number of item No.1 as 586/1 of Elamkulam village. It is also found that there is no severance of tenements of plaint item No.1 and 2 and hence plaintiff cannot claim right of easement by necessity. It is further found that the use of the way for a period of 20 years is not proved. Hence, the claim for declaration of right of easement by prescription or necessity was found against and consequently the prayer for injunction was also refused and the suit was dismissed. Against which the plaintiff filed the appeal and the 1st appellate court found that plaintiff could establish his occupation of plaint item No.1 property and there is no necessity to enter into a finding with regard to title of item No.1 property in the nature of the suit. But it is further found that since the severance of tenements is not proved the plaintiff is not entitled for any right of easement by necessity and with regard to the claim of right of prescription it has been found that the plaintiff could not prove the prescribed right of easement by use for a period of 20 years openly, uninterruptedly as of right over plaint item No.