KOCHAN RAMANATHAN Vs. KOCHAN NATARAJAN

JUDGEMENT

(1.) PLAINTIFF is the appellant. He filed O. S.311 of 1981 before the Munsiff, Cherthala for declaring the right of easement as of necessity to use a pathway and for prohibitory injunction to restrain the defendant from obstructing user of the way. He also alleged that the pathway was closed by the respondent. He wanted the pathway to be restored to its original position. The respondent denied the right and its user. He also denied having obstructed the pathway. The Trial Court found that there was a pathway as alleged by the appellant and that it was obstructed. The respondent was therefore directed to restore the pathway to its original condition. The prayer for injunction was also allowed. In A. S.39 of 1985, the appellate judge also agreed with the Trial Court that an easement of necessity was established. But the decree was modified and the pathway was limited to a foot path. That is how the plaintiff happened to come up in second appeal.

(2.) THIS is an unfortunate litigation between two consanguine brothers. They are the children of sisters, who were the common wives of one Karamban Kochan. Karamban Kochan is their father. He had an item of property touching a public road on the southern side leading from Kanichukulangara to the National Highway. That portion of the property touching the public road was gifted by him on 5-1-1976 under Ext. A1 to the respondent. The remaining portion of the property lying away from the public road to the north of Ext. A1 property was used by Kochan for his residence. Through the western portion or Ext. A1 property, Kochan formed a callable road for access to Ext. A1 property and the remaining portion where he was residing. That portion of the property in which he was residing subsequently came to the share of the plaintiff under Ext. A2 partition dated 5-5-1977 entered into by the appellant, respondent and others after the death of Kochan. The case of the appellant is that the pathway is 15 feet wide extending upto the extremity of his property and that it was used for taking automobiles also. As earlier stated, the existence of such a pathway was denied by the respondent who contended that alternate ways are also available to the appellant.

(3.) IT is admitted by the parties that even though Kochan was not having a car of his own, he was regularly using cars for access to his house. On the southern extremity of Ext. A2 property belonging to the appellant under Ext. A2 partition deed, there are two sheds near the gate constructed north of the boundary wall. It is said that one of the sheds was used by Kochan for parking cars. That is the evidence of PW 1 and that version was supported by PWs 2, 3 and 4. PW 2 is a neighbour, who is running a tea shop nearby. PW 3 is an Advocate practising at Alapuzha and residing near Exts. A1 and A2 properties. He was also a local Panchayat Member. PW 4 gave evidence that he had occasion to come to Kochan's property (Ext. A2) in cars. PWs 2 and 3 also said that to their knowledge Kochan was using the disputed pathway for vehicular access to his residence in Ext. A2 property. There is absolutely no reason to disbelieve these items of evidence especially in view of the reports submitted by the Commissioners and the evidence given by them in the box.