CHELLAPPAN PILLAI Vs. ANDI DAMODARAN

JUDGEMENT

(1.) Plaintiff in a suit for declaration of title and possession over the plaint schedule property and for injunction to restrain the defendant from trespassing into the same, is the appellant. His title to, or possession over, the property was not in dispute and precisely for that reason, both the courts below felt it unnecessary to grant the declaration sought. The only claim of the defendant respondent was that contained in para.7 of his written statement, that he has got an easement of right of way over the plaint schedule property. This is elaborated in Para.10 of the written statement by stating that the defendant has no access to his property, (except through the plaint schedule properly), his property being surrounded by water on the southern, western and northern sides and by the plaint schedule property on the eastern side, the obvious implication being that a way through the plaint schedule property on the east was a must, and one of necessity. It is in evidence that the southern, western and northern sides of the defendant's property are thodus (canals) and therefore the only access by land to that property is through the plaintiffs property on the east. This has been accepted by both the courts below.

(2.) The properties of the plaintiff and the defendant lying contiguous and in one block, belonged originally to the plaintiff. The plaintiff sold a portion on the western side of this, property in the year 1957 to his cousin Padmanabha Pillai, who in turn assigned it to the defendant on March 24, 1979, Admittedly Padmanabha Pillai was using the plaint schedule property for ingress to and egress out of his property on the west. His wife, when examined as DW.2 has spoken to the said user as of right. The courts below have examined the evidence in the case and come to the conclusion that there is no access by land to the defendant's property except through the plaint schedule property. It is not shown that this concurrent finding is vitiated in any manner. It is not therefore liable to be interfered with in second appeal.

(3.) The two ingredients necessary for an easement of necessity, namely that the two tenements constituted a single tenement originally and that there is no other access to the dominant tenement stand established by the evidence in this case. Normally this would have been sufficient to entail dismissal of the appeal.