Easements by necessity and prescription cannot coexist; the court upheld lower findings that plaintiffs failed to prove their claims.

EASWARAN S., J.

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R.S.A. No.439 of 2025 -------------------------------------

Dated this the 19^th August, 2025 JUDGMENT The plaintiffs 2, 4, and 5 in O.S. No.256 of 2008 have come up in the present appeal, aggrieved by the concurrent findings rendered by the Munsiff Court, Attingal, as confirmed by the Sub Court, Attingal. The suit is one for prohibitory injunction and also declaration of title. According to the plaintiffs, the plaint A schedule property belongs to them and the 2^nd defendant. The plaintiffs 1 and 2 are father and mother, respectively of plaintiffs 3 to 5 and the 2^nd defendant. The plaint B schedule property belongs to the 1^st defendant. The plaint C schedule property is a pathway starting from the public road and proceeding towards the east through the south western corner of plaint B schedule property and reaching the north western corner of plaint A schedule property. The plaint C schedule property is having an approximate width of four feet and length of 50 metres. The plaint schedule properties and the property of one Mahdavan Pillai, which is on the western side of the plaint schedule properties, originally belonged to the father of the 1^st plaintiff.

Subsequently, the properties were partitioned, and the plaint C schedule property is the only way for travelling to the plaint A schedule property, and the plaintiffs acquired the right of easement by necessity and prescription to use plaint C schedule way for travelling to plaint A schedule property. The 1^st defendant resisted the suit and contended that plaint C schedule property is not lying as a way and was never used by the plaintiffs for travelling into their property. The contention that the property originally belonged to the father of the 1^st plaintiff is also false. Plaint C schedule property originally belonged to one Abdul Razak, and he sold the property to one Kuttan Pillai and the said Kuttan Pillai sold the property to the 1^st defendant, and thereafter the 1^st defendant sold the property to his sister. A way as described in the plaint C schedule property was never in existence, and an alternate way was provided in the prior title deed of the 1^st plaintiff, and the plaintiffs and their predecessors have been travelling from their property by walking through a ridge and thereafter through the road. The suit was tried along with O.S. No.375 of 2008 preferred by the 3^rd defendant in O.S. No.256 of 2008 seeking for prohibitory injunction. On behalf of the plaintiffs, Exts.A1 to A5 documents were produced, and PW1 to PW4 were examined. On behalf of the defendants, Exts.B1 to B8 documents were produced, and DW1 and DW2 were examined. Exts.C1 and C2 are the reports, and Exts.C1(a) and C2(a) are the rough sketch and survey plan submitted by the Advocate Commissioner. The trial court, on appreciation of the oral and documentary evidence, found that, the claim of easement by prescription and necessity cannot co- exist. Therefore, it was concluded that the plaintiffs failed to prove the necessary ingredients to bring out the claim for easement by prescription. Aggrieved by the judgment and decree, the plaintiffs preferred A.S. No.38 of 2016 before the Sub Court, Attingal, which was also dismissed by judgment dated 28.3.2025, and hence this appeal.

2. Heard Sri. R.S. Kalkura, the learned counsel appearing for the appellants and Sri. M. Balagovindan, the learned counsel appearing for the respondents.

3. On consideration of the rival submissions raised across the Bar, this Court finds that no substantial questions of law arise for consideration in the present appeal. The entire thrust o