THANKAMANIYAMMA Vs. SREEKALA

JUDGEMENT

(1.) THE Second Appeal arises from the judgment and decree of the Additional Sub Court, Irinjalakuda in A.S. No.32 of 2009 reversing dismissal of O.S. No.17 of 2006 of the Munsiff's Court, Kodungallur.

(2.) THE respondents -plaintiffs sought a declaration of easement by way of necessity over the plaint C schedule way which according to them has width of 1 metre and length of 100 metres and runs east -west along the southern portion of the plaint B schedule belonging to the appellant. Plaint A schedule belongs to the 1st respondent as per document No.902 of 2001. It is the case of the respondents that plaint A to C schedules originally belonged to the common owners - Mukundan Nair and his mother, Narayani and on the death of Narayani, there was a partition as per document No.2374 of 1973. The plaint A schedule (B schedule in the partition deed) was allotted to Mukundan Nair whose legal representatives assigned that property to the 1st respondent as per document No.902 of 2001. The plaint B schedule came to the ownership of the appellant. It is the further case of the respondents that except the plaint C schedule way, they have no other means of access to the plaint A schedule.

(3.) THE trial court was impressed by the contention of the appellant that the existence of a way is not proved and consequently dismissed the suit. The first appellate court found that the respondents are entitled to a right of easement by necessity through the plaint C schedule. The first appellate court took into account Ext.C1, report of the Advocate Commissioner that though there was no visible way through the plaint B schedule, the Commissioner could notice the way at the entry point and the termini. At the entry point the way has width of three feet (on the eastern side) while at the termini (on the south -eastern portion of the plaint A schedule), width of the way is six feet. The first appellate court also noticed that except the plaint C schedule way, there was no other means of access to the plaint A schedule. In that view of the matter the first appellate court granted a decree in favour of the respondents concerning the plaint C schedule.