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2025 Supreme(Online)(Ker) 29933

IN THE HIGH COURT OF KERALA AT ERNAKULAM
Sreekumar G, J
SETHULAKSHMY AGED 68 – Appellant
Versus
SAROJINI – Respondent


Advocates:
For the Appellants/Petitioners: Sri. Sreekumar G (Chelur)
For the Respondents: None

Judgement Key Points

Cross-Examination of the Defendant

  1. You have claimed that there is an existing pathway on your property. Can you produce any documentary evidence, such as a survey plan or property map, that clearly shows the existence of this pathway? (!)

  2. Are you able to point out the exact location of this pathway on your property? Would you agree that if no physical or documentary evidence can be produced, the existence of such a pathway remains unsubstantiated? (!)

  3. Have you personally observed or used this pathway? If so, can you specify the duration and frequency of its use? (!)

  4. Can you confirm that there are no physical signs, such as a cleared track or worn-out surface, indicating the presence of a pathway at the location you claim? (!)

  5. Have any neighbors or other third parties ever recognized or identified this pathway in their property records or during their use? (!)

  6. Are you aware that the petitioner has contested the existence of this pathway? Have you reviewed any survey or expert reports that support the petitioner's claim that no such pathway exists? (!)

  7. Do you have any photographs, plans, or other evidence to substantiate your claim that a pathway exists at the location you describe? (!)

  8. Is it correct to say that your claim of an existing pathway is based solely on your personal assertion without any supporting evidence? (!)

  9. Have you ever acknowledged, in writing or verbally, that there is no designated or established pathway on your property? (!)

  10. Do you agree that if no physical or documentary evidence of the pathway can be produced, the claim of its existence remains unproven? (!)

  11. Are you willing to allow a surveyor or court-appointed officer to inspect the property to verify the existence or non-existence of the pathway? (!)

  12. In light of the absence of concrete evidence, do you still maintain that a pathway exists, or do you concede that the claim is unsubstantiated? (!)

Thank you.


Table of Content
1. right of servient owner to seek shifting of easment. (Para 1)
2. plaintiffs, as servient owners, challenged the existing easement. (Para 2 , 3)
3. contentions of the defendants regarding the shifting of pathway. (Para 4 , 5 , 6)
4. court's approach to hearing the appeal. (Para 7 , 8)
5. interpretation of sections 22 and 23 of the easement act. (Para 9 , 10 , 11 , 12)
6. permitting shifting of easement under conditions without detriment. (Para 13 , 14)
7. possibility of shifting kudikidappu under relevant land reform acts. (Para 15)
8. easement act remedies and implications. (Para 16 , 17)
9. court's final decision on shifting easement. (Para 18)
10. result of the appeal and remand for fresh consideration. (Para 19)

JUDGMENT

RSA No.1334/2011

1. The question involved in this Regular Second Appeal is whether the Servient owner has right to seek for shifting of easement to another part of the Servient Heritage for the convenient use of the Servient Heritage, in view of Section 22 of the Indian Easement Act, 1882 .

2. The appellant is the 1st plaintiff in the suit. The second plaintiff is her son. They are the owners of the Servient Heritage. The defendants are the owners of

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