Easements by necessity established through prior property allotment are affirmed in property disputes when concurrent findings by lower courts are substantiated by evidence.

JUDGMENT

The 2nd defendant in O.S. No.347 of 2010 on the files of the Munsiff Court, Chavakkad, a suit for mandatory injunction, has come up in the present appeal, aggrieved by the concurrent findings rendered by the courts below.

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

The plaintiffs are the wife and children of late Dharmajayapalan, who was allotted certain property under a family partition. As per the partition, the Plaint A schedule property was allotted to late Dharmajayapalan, and plaint B schedule property was allotted to his brother, Anandan. Sri. Dharmajayapalan was allotted 34 cents on the western portion and his brother Sri. Anandan was allotted 16 4/3 cents on the eastern side. The ingress and egress to the plaint A and B schedule properties were through a pathway starting from the eastern Panchayath road towards the west. After the partition, the access to plaint A schedule property has been through the northern portion of the plaint B schedule property. Thus, the plaintiffs have got an easement by necessity through plaint B schedule property, and the said right was openly enjoyed by them from 1969 onwards. Facts being so, the property allotted to Sri. Anandan was assigned to the first defendant. As the 1^st defendant was working abroad, the property is under the possession and management of the 2^nd defendant, his wife. The defendants resisted the claim and contended that even after the assignment of the property in favour of the defendants, the plaintiffs were using the pathway as of right and without any interruption. Though the defendants requested the plaintiffs to shift the pathway, the same was not accepted. It was further contended that the plaintiffs did not have any easement by necessity or prescription over the plaint B schedule property. It is further contended that the plaint B schedule to the partition deed, being allotted to the father of the 1^st defendant, the access to the property allotted to the plaintiffs was through the property lying on the south eastern direction belonging to one Sankaran and Karuppakutty. It was further contended that the plaintiffs never used the plaint B schedule property for ingress and egress. On behalf of the plaintiff, Exts.A1 to A5 documents were produced. PW1 was examined.

On behalf of the defendants, Exts.B1 to B3 were produced, and DW1 was examined. Exts.C1 to C3(a) are the reports and sketches submitted by the advocate commissioner. The trial court, on appreciation of the oral and documentary evidence, found that Exts.C1 and C2 local inspection reports clearly show the existence of two gaps on the northern and southern portions of the western boundary wall of the plaint B schedule property, which were found closed with grills and coconut leaves at the time of inspection, leading to an irresistible presumption that the plaint B schedule pathway is in existence. Accordingly, the trial court concluded that the plaintiffs are entitled to succeed and decreed the suit, directing the defendants to remove the obstructions, such as grills and the coconut leaves, put up on the three width gap (kazha) on the northern portion of the western boundary wall of the plaint B schedule property. Aggrieved, the 2^nd defendant preferred A.S. No.7 of 2017 before the Sub Court, Chavakkad. The first appellate court, by judgment dated 31.8.2018, dismissed the appeal with a modification by setting aside the finding of the learned Munisff Judge to the extent of entitlement of the plaintiffs for easement by grant and by confirming the rest of the decree and judgment and hence, the present appeal.

3. When the matter came up for consideration on 31.7.2025, this Court, after extensively hearing the appeal on merits, found that there is no substantial question of law fo