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2026 Supreme(Online)(Ker) 39208
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Easwaran S., J
Shanmughan – Appellant
Versus
Prasanth – Respondent
RSA NO. 147 OF 2015
Important Points
Subject
Civil Law - Easement Rights
Act Referred
Headnote
Facts of the case:
The plaintiff sought a right of way through the defendant's property, claiming an easement by necessity to access his land (A schedule). The trial court dismissed the suit, finding no pathway (D schedule) existed. The first appellate court reversed the decision, granting a right of way by necessity through the defendant's properties (B and C schedules).
Findings of Court:
The High Court held that the appellate court erred in granting relief for an easement by necessity that was not pleaded and lacked factual proof. The plaintiff failed to establish the necessity, as an alternate route existed and the right was never reserved in the original purchase deeds.
Issues: Whether the first appellate court committed an illegality in granting a decree for an easement by necessity without pleading or evidence, and whether the defendant can be compelled to provide a pathway through his private land.
Ratio Decidendi: Easement by necessity cannot be granted simply on grounds of inconvenience or lack of statutory construction clearance when an alternate route exists, especially in the absence of original pleadings asserting such a right.
Result: Appeal allowed; judgment and decree of the first appellate court reversed, trial court's dismissal of the suit restored.
For the Appellants/Petitioners: G.Sreekumar
For the Respondents: Pleasant T.Samuel, N.P.Samuel
EASWARAN S., J.
Dated this the 9th day of June, 2026
JUDGMENT
The defendant in O.S.No.913/2007 has come up in the present appeal faced with the reversal of the judgment and decree of the trial court dismissing the suit at the hands of the first appellate court.
The brief facts necessary for the disposal of the appeal are as follows:
2.1. The plaintiff’s father purchased ‘A’ schedule property in 1993. It is claimed that the property was purchased from the defendant’s mother, Lakshmikutti Amma, thereby indicating that there was a severance of the tenement. After the purchase, the defendant had constructed a compound wall and was separately using plaint B schedule property as of his own. The access to plaint B schedule property is through C schedule property which is a private way that connects B schedule property to the public road. In 2005, the father of the plaintiff assigned the right, title and interest over the plaint A schedule property to the plaintiff. In both the assignment deed executed in favour of the plaintiff's father and the subsequent assignment deed executed in favour of the plaintiff, the western boundary of the property is shown as the railway property or railway puramboke. In order to access the public road from the plaint A schedule property, they used the railway puramboke. Immediately after the purchase, the plaintiff claimed difficulty in enjoying the plaint A schedule property on the ground that no statutory permissions will be granted for construction of a house. On 20.10.2006, the railway authorities also restrained the plaintiff from using the railway property for ingress and egress, thereby leaving him no means of access to the public road from his property. Since the plaintiff had no access to the main road other than through the defendant’s properties, the plaintiff demanded the defendant to set out a pathway as D schedule through plaint B and C schedule properties, which he did not agree to. Hence, the suit was filed seeking a declaration that the plaintiff has a right of way through the defendant's properties and for a direction to partially demolish the wall separating A and B Schedule properties, so as to create a pathway through D Schedule property.
2.2. The defendant contended that the plaintiff is not entitled to any relief because, there is no pathway in existence as described in plaint C schedule property and that the plaintiff’s father was using an alternate way through the railway puramboke on the western side. In fact, it was pointed out that the father of the plaintiff had no objection and had not raised any claim for the same. The plaintiff’s case was supported by PW1, being none other than the father of the plaintiff and PW2, the Railway Engineer. Exts.A1 to A7 documents were marked on behalf of the plaintiff. On behalf of the defendant, Exts.B1 to B3 were marked and DW1 was examined. Exts.C1 and C1(a) are the commission report and rough plan.
2.3. The Advocate Commissioner who inspected the property reported that the entry to plaint A schedule property is from the western side, thereby indicating that there is a vacant space between the railway line and the property of the plaintiff. The trial court, on appreciation of the oral and documentary evidence, dismissed the suit holding that D schedule property is not in existence and therefore, the relief cannot be granted.
2.4. Aggrieved, the plaintiff preferred A.S.No.110/2014 before the Additional Sub Court-I, Thrissur. The first appellate court reversed the findings of the trial court on the ground that the plaintiff has a case of easement by necessity and therefore, directed the defendant to set out a way of three feet through D schedule property as against the claim of five feet by the plaintiff. Accordingly, the appeal was allowed by directing the defendant to set out a way having a width of 3 feet through plaint B and C schedule properties to plaint A schedule property and to demolish the wall separating A and B schedule
