The legal principle established is that a claim for easement by necessity stands unless an alternative route is proven to be legally accessible.

J U D G M E N T

These Second appeals arise from the judgment and decree of the learned District Judge, Pathanamthitta in A.S. Nos.125 and 126 of 2008, respectively confirming the judgment and decree in O.S. Nos.274 and 250 of 2006, respectively of the court of learned Munsiff, Pathanamthitta. Parties are to referred as plaintiff and defendants as in O.S. No.274 of 2006 for convenience.

2. Plaintiff filed O.S. No.274 of 2006 for declaration of right of easement and prohibitory injunction. First defendant in that suit filed O.S. No.250 of 2006 against the plaintiff and others for a decree for prohibitory injunction against trespassing into her property. Trial court dismissed O.S. No.250 of 2006 and granted a decree in favour of plaintiff in O.S. No.274 of 2006 by a common judgment. That common judgment and decree were confirmed by the learned District Judge, Pathanamthitta.

3. Plaintiff claimed title and possession of item No.1 as per Ext.A1, settlement deed No.4288/1965 executed by his father. Property on the south is item No.2, which belonged to his brother, the late Varghese as per a settlement deed (Ext.B1) executed by their father. On the death of varghese that property devolved on defendants 1 to 4. According to the plaintiff, there is a panchayat road ending on the southern side of item No.2 and from that panchayat road, there is a way along item No.2 and leading to item No.1. That way is described as item No.3, having a width of 8 feet and length of 100 metres. Plaintiff claimed right of easement by way of necessity and prescription over the said way.

4. Defendants contended that the width of item No.2 is only 2 feet and that the said way ends at the courtyard of the 4th defendant. They also claimed that plaintiff has access from the panchayat road directly to item No.1. On the very same allegations first defendant filed O.S. No.250 of 2006 against the plaintiff and others and sought a decree for prohibitory injunction against trespass into item No.2. Plaintiffs and others contended in that suit that there is access through item No.2 along the way described as item No.3 in O.S. No.274 of 2006. Trial court found in favour of easement by way of necessity and granted a decree in favour of the plaintiff while dismissing O.S. No.250 of 2006.

5. It is contended by the learned counsel for defendants that judgment and decree of the courts below cannot be sustained since as per evidence plaintiff has alternative way for access to item No.1. It is contended that when an alternative access is available, a plea of easement by necessity cannot be sustained.

6. There could be no doubt on the proposition stated by the learned counsel. However inconvenient it may be, the existence of an alternative way will defeat a claim of easement by necessity. But the alternative way must be one which the plaintiff could enjoy as of right.

7. There is no much dispute and is proved by Exts.A1 and B1 that item Nos.1 and 2 belonged to the same person and it is by settlement deeds that it came to the plaintiff and the predecessor in interest of defendants 1 to 4. In other words severance of tenements between item Nos.1 and 2 is admitted and proved.

8. So far as existence of item No.3, pathway is concerned P.W.2, the Advocate Commissioner has given evidence that the pathway is in existence in the way described in the reports in both the cases.

9. The question is whether the alternative way is available to the plaintiff and hence the claim of easement by way of necessity is defeated?

10. The Advocate Commissioner has stated that there is no such alternative way as claimed by the 1st defendant and others. Reliance is placed on Ext.C2 series, report and sketch obtained in O.S. No.250 of 2006. There, a reference is made to an alternative way in paragraph 4. But it is stated that the said way reaches upto the paddy filed on the northern side of item No.2. It is reported that first defendant and others told the Advocate Commissioner that the said way continued towards