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2023 Supreme(Online)(KER) 32730
HIGH COURT OF KERALA
M.R.ANITHA, J
EZHUTHASSANKANDIYIL AJITHAKUMARI D/O. LEELAVATHI AMMA – Appellant
Versus
C.K. RAVEENDRAN,(DIED) (LRS IMPLEADED) – Respondent
SA No. 190 of 2002 | A.S No. 108 of 1997 | O.S No. 385 of 1994
For the Appellants/Petitioners: SMT.PREETHY KARUNAKARAN, SRI.ANISH S.AMBADY, SRI.R.RAJESH KORMATH
For the Respondents: P.K.RAVISANKAR, C.P.MOHAMMED NIAS, S.AJITH
A claim of easement by necessity cannot be sustained if both dominant and servient tenements are owned by the same party, negating the legal basis for the claim.
Headnote:(A) Indian Easements Act - Section 4 - Second appeal concerning easement by necessity and ownership rights - Plaintiffs claimed ownership and easement over D schedule property, which was denied by defendants - Trial and appellate courts found lack of evidence establishing existence of the claimed pathway - Legal principles regarding distinct ownership required for easement applications were cited. (Paras 8, 14, 15)
(B) Easement by necessity - To claim an easement of necessity, the claimant must demonstrate distinct ownership of the dominant tenement and servient tenement; ownership of both negates the claim for easement. (Paras 13, 14)
Facts of the case:
The plaintiffs sought to establish a right of way over D schedule property, asserting it as essential access to their C schedule property. Defendants denied the existence of the pathway and claimed ownership. The courts found the plaintiffs did not substantiate their claim of easement.
Findings of Court:
The appeal was dismissed as the courts found the plaintiffs had not established their right to a way through property owned by the defendants.
Issues: Whether the courts correctly applied the principles of easement in assessing the plaintiffs' claims, including the sustainability of a claim of easement by necessity.
Ratio Decidendi: The courts maintained that the existence of a dominant and servient tenement owned by different persons is essential for an easement to exist. The plaintiffs' ownership claim over D schedule precluded their easement claim.
Result: Second appeal dismissed.
| Table of Content |
|---|
| 1. details of property ownership and partition. (Para 1 , 2) |
| 2. defendants' denial of plaintiffs' claims. (Para 3 , 4 , 5) |
| 3. trial court's findings on easement claims. (Para 6 , 7) |
| 4. substantial questions of law raised by plaintiffs. (Para 8 , 10 , 11) |
| 5. court's analysis of easement claims and applicable law. (Para 12 , 13 , 14 , 15) |
JUDGMENT
The second appeal has been directed against the judgment and decree in A.S No. 108 of 1997 on the file of Principal Sub Court, which in turn arise out of the judgment and decree in O.S No 385 of 1994 on the file of Munsiff’s court Kozhikode – II.
2. Appellants are the plaintiffs (parties would hereafter be referred as per their status before the trial court). Pliant A to C schedule properties and the properties abutting the four boundaries originally belong to Mannil Chittaduth tharavad. Plaintiffs and fourth defendant are siblings. The plaint A schedule property and D schedule way and the properties lying south, west and north were paddy lands. Plaint A, B and C schedule properties and the other properties of the family were partitioned in the year 1952 as per partition deed No.1184 of Kakkodi SRO. Plaint A schedule property is G schedule item No.9 in that partition deed. Plaint D schedule is the pathway to plaint A schedule, B schedule and the property lying on the west of C schedule for the use of the family members for the last more than 70 years. Subsequently as per Ext.A1 partition deed of the year 1953, plaint A schedule property was allotted to the Thavazhy of the plaintiffs' mother and others as item No.6 and 22. In 1959, as per Ext.A2, plaint B schedule property was assigned to the father of first defendant by the members of the Thavazhy. On account of subsequent partition deed Ext.A3 in the year 1973, plaint C schedule property was allotted to the thavazhy of the plaintiffs, fourth defendant and their mother. In 1981 as per Ext.A4 partition deed, plaint C schedule was allotted to the plaintiffs and the fourth defendant as item No.5 therein. According to the plaintiffs, plaint D schedule is the only means of access to plaint C schedule property. Though plaintiffs claim right of easement by prescription as well as necessity, the claim of easement by prescription was given up before the trail court by endorsement on the plaint. So, plaintiffs claim a right of ownership over D schedule way and also claim right of easement by necessity.
3. Defendants 1 to 3 filed written statement stoutly denying the existence of any way, as alleged in plaint D schedule. It is also denied that D schedule way was kept in common for use of different sharers as per the partition deeds executed in the plaintiffs' tharavad. Claim of easement by necessity is denied since the plaintiffs have got alternate way and also because the claim is not legally sustainable since plaintiffs claim ownership over D schedule pathway.
4. Fourth defendant filed written statement supporting the plaint averments.
5. PW1 was examined and Exts.A1 to A14 marked from the side of the plaintiffs and DW1 was examined and Exts.B1 marked from the side of the defendants.
6. The trial court found that plaintiffs failed to prove existence of plaint D schedule way. It is also found that the claim of easement by necessity over D schedule way is not legally sustainable since plaintiffs are claiming ownership over D schedule property as well. It is also found that B schedule property was acquired by the father of the first defendant by virtue of Ext.A2 in 1959, the plaintiffs have no case that the necessity of way arouse on that occasion. It is also inconsistent with the plea of the plaintiffs that the way has been in existence for more than 70 years. Hence it is found that the plaintiffs have not established their right to claim a way through the property of 1 st and 2 nd defendants.
7. First appellate court, on re-appreciating the facts circumstances and evidence, found that the plaintiffs have no consistent case about their right
