Easement rights can be extinguished by the availability of alternative pathways and lack of evidence supporting the claimed right.

JUDGMENT

This appeal arises out of the concurrent findings rendered by the Munsiff Court, Paravoor in O.S. No. 176 of 2005 as affirmed by the I Addl. District Court, Kollam in A.S. No. 103 of 2009.

2. The brief facts necessary for the disposal of the appeal are as follows:

2.1. The respondent/plaintiff filed a suit for injunction restraining the defendant from obstructing the plaintiff’s right over the ‘B’ schedule pathway provided for the use of ‘A’ schedule property. According to the plaintiff, the pathway is specifically mentioned in the basic deed of the property in the year 1958 by her father Bhaskaran. According to the plaintiff, there is no pathway other than ‘B’ schedule pathway for the ingress and egress to the A schedule. The defendant who came into possession of 10 cents of property through which ‘B’ schedule property started to make obstruction to the plaintiff’s use of the ‘B’ schedule pathway and, hence, the suit. The defendants resisted the suit by contending that there is no pathway as ‘B’ schedule available in the ground and there was no occasion for the plaintiff to use it for the enjoyment of the ‘A’ schedule property. The pathway described in the prior deed of the ‘A’ schedule is one running through 26 cents remained in possession of the prior vendor does not relate to their property. On behalf of the plaintiff, Exts. A1 and A2 documents were produced and PW1 to PW3 were examined. On behalf of the defendants, DW1 was examined but no documentary evidence was adduced. Exts. C1 is the report, C2 is the Mahazar and C2(a) is the rough sketch filed by the Advocate Commissioner.

2.2. On the basis of the oral and documentary evidence adduced by the parties, the Trial Court found that, going by the report of the Advocate Commissioner, there is no pathway in existence as alleged by the plaintiff in ‘B’ schedule. However, the Trial Court proceeded to find that as per the recitals of the prior deed, there is a right of easement by grant in favour of the plaintiff up to 3 feet and, thus, the suit was decreed against the defendants by restraining them from obstructing the right of the defendant up to 3 feet pathway. While holding so, the Trial Court found that mere non-usage of the easement by grant will not curtail the plaintiff from using the benefit under Ext. A2. Aggrieved, the defendants filed A.S. No. 103 of 2009 which was dismissed by judgment dated 31.10.2012 and, hence, the present appeal.

3. Heard Sri. Latheesh Sebastian, the learned Counsel for the appellants. No appearance on behalf of the respondents.

4. While the appeal was admitted to file by this Court on

12.08.2015, the following substantial questions of law were framed;

Whether the easement by grant “(i)

claimed by the plaintiff has been proved properly?

(ii) What is the nature of way claimed by the plaintiff? Is it an easement of necessity or easement by grant?

(iii) In the facts and circumstances of the case could the courts below have ignored Ext. C1 commission report which negatives the plea of easement by necessity?”

5. The learned Counsel for the appellants submitted that despite finding that there is no pathway as alleged in the plaint ‘B’ schedule, the Courts below could not have decreed the suit in favour of the respondent/plaintiff. Referring to the report of the Advocate Commissioner and the findings rendered by the Trial Court in paragraph no. 12 of the judgment, it is submitted that the conferment of an easement by grant in favour of the plaintiff was completely unwarranted and without any basis. He would further point out that there is no warrant for observation by the Trial Court that by mere non- use of the way, the plaintiff will not lose the right of easement by grant. According to the learned Counsel for the a