A claim of easement by prescription can prevail without the need for establishing easement by necessity, if supported by strong evidence.

JUDGMENT

The defendants in a suit for declaration, prohibitory injunction and other reliefs have come up in the present appeal, aggrieved by the concurrent findings rendered against them by the courts below. 2. Brief facts necessary for the disposal of this appeal are as follows :

The plaintiff sued the appellants/defendants in a suit for a declaration of right of easement and a prohibitory injunction. As per the averments in the plaint, item No.1 of the plaint schedule property belonged to the husband of the plaintiff and devolved upon the plaintiff and her daughter on the death of her husband. The plaint schedule item No.2 property belonged to the defendants and that item No.3 is the only access to the residential building in item No.1. It is contended that the plaintiff and her predecessors have been using the said way for more than 70 years and that, when the defendants insisted the plaintiff to purchase the property, she expressed her inability to do so, which resulted in the defendants threatening the plaintiff that they would deny her access through item No.3 pathway to reach her residential property. Hence the suit. The defendants filed a written statement contending that the description of item No.2 is incorrect and that the 2^nd defendant is no way connected with item No.2. It is also contended that the description of item No.3 is also incorrect. Item No.3 is a private road leading from Kottayam- Ayarkunnam Public road to the residential building of the 1^st defendant. Neither the plaintiff nor her predecessor had any interest over the said road. There was no severance of tenement between the plaintiff and the 1^st defendant, and therefore, prayed for dismissal of the suit. On behalf of the plaintiff, Exts.A1 and A2 were produced, and PW1 to PW3 were examined. On behalf of the defendants, no documentary evidence was produced, but DW1 and DW2 were examined. Exts.C1, C2 and C3 are the reports, and Ext.C1(a) is the rough sketch submitted by the Advocate Commissioner. The trial court, on appreciation of the oral and documentary evidence, found that item No.3 pathway exists and has a length of 371 meters, and, of this, 117 meters falls within the plaint item No.2. Going by the reports of the Advocate Commissioner, the existence of a wheel tracks and lie of the road indicate that vehicles were used to be driven to and fro up to the residential building of the plaintiff. Accordingly, finding that the plaintiff is entitled to the relief, the trial court decreed the suit. Aggrieved, the defendants preferred A.S. No.153 of 2006 before the Additional District Court (Adhoc) -I, Kottayam. The first appellate court, by judgment dated 17.1.2009, dismissed the same. Hence, the present appeal.

3. On 5.2.2013, while admitting the appeal, this Court framed the following substantial questions of law.

“Were the courts below right in granting a decree in favour of the plaintiff when the plaintiff contended that she has acquired right of easement by prescription and also contended that there was severance of tenements and thus acquired a right of way by necessity, when both claims will not go together?”

4. Heard Sri.Mathew John, the learned counsel appearing for the appellants and Sri.P.I. Georgekutty, the learned counsel appearing for the respondent.

5. The learned counsel appearing for the appellants pointed out that the claim of the plaintiff for easement by prescription and necessity will not go together. The plaintiff failed to establish that she and her predecessors were using the pathway in question, and that the plaintiff failed to prove the severance of tenement, therefore, the courts below were not justified in granting the decree for injunction.

6. Per contra, the