The existence of an alternate way does not negate a party's right to assert an easement by grant under a testamentary disposition.

JUDGMENT

This appeal is preferred by the plaintiff, aggrieved by the concurrent findings in O.S.No.700/2004, a suit for injunction, on the files of Additional Munsiff Court, Kollam, as affirmed in A.S.No.274/2007 by the Additional District Court-III, Kollam. 2. The brief facts necessary for the disposal of the appeal are as follows:

2.1. The plaint A schedule property belonged to the plaintiff vide Will No.109/90. The property of the 2^nd defendant lies to the north of plaint A schedule property. The property of the 1^st defendant lies further to the north of 2^nd defendant's property. A pathway having a width of 14 ft. is provided under the Will and is lying on the western side of the 1^st defendant’s property, which is scheduled as C schedule to the plaint. There is a public road leading to Vallikeezh Girl’s High School on the west and that the C schedule pathway turns towards west from the north western corner of the 1^st defendant’s property and it leads toward the western public road. The plaintiff and defendants purchased the B schedule pathway vide Sale Deed No.2092/2000 for ingress and egress to their properties. So the plaintiff claims right over C schedule pathway as per the terms of Will and also right over B schedule pathway as per Sale Deed No.2092/2000.

2.2. The defendants resisted the suit contending that, C schedule way described in the plaint is against the terms in Will No.109/90. It was also contended that the plaintiff destroyed the said pathway and tried to make a pathway as described in plaint C schedule. The pathway in question does not have a width of 14 feet and that it has only a width of 3 links. The 2^nd defendant also resisted the suit by raising contentions in similar lines.

2.3. On behalf of the plaintiffs, Exts.A1 to A3 documents were produced and PW1 was examined. On behalf of the defendants, Exts.B1 to B3 documents were produced and DW1 was examined. Ext.C1 is the report of the Advocate Commissioner, wherein he found the existence of a 12 feet pathway having a length of 64 feet. The trial court, on appreciation of oral and documentary evidence, came to the conclusion that there is no need for the plaintiff to access the pathway in question as scheduled in C schedule to the plaint, since he has an alternate way. Therefore, on the ground that the C schedule property is not identifiable in terms of the Will, the suit was dismissed. Aggrieved, the plaintiff preferred A.S.No.274/2007 before the Additional District Court-III, Kollam, which was also dismissed by judgment dated 17.09.2008 and hence, the present appeal.

3. On 18.11.2014, this Court admitted the appeal on the following substantial questions of law framed in the memorandum of appeal:

i. Is it not the for the courts below to appreciate the fact that the right claimed by the plaintiff is traced to Exts Al and A2, and reading the same along with the existence of the pathway with a width of 12 feet as noted by the advocate commissioner, was not the plaintiff entitled for a relief of injunction?

ii. Is it not wrong for the courts below to find that since there is an alternate pathway, the plaintiff is not entitled for the relief?

iii. Was it not for the courts below to grant a lesser relief to the plaintiff than what was sought for?

iv. Is not the appreciation of the evidence and the pleadings done in a perverse manner by the courts below thus requiring interference by this Hon'ble court?

4. Heard, Adv.Sreekumar G (Chelur) – learned counsel appearing for the appellant. None appeared for the respondents.

5. Adv.Sreekumar G (Chelur) – learned counsel appearing for the appellant, contended that the findings rendered by the courts below are perverse, inasmuch as the dismissal of the suit was solely on the ground that plaint C schedule property was