MARIAMMA SIMON Vs. PRASAD,S/O.SREEDHARAN

JUDGEMENT

(1.) The common judgment rendered by the District Court, Pathanamthitta on 18/8/2015 in A.S.Nos.21/2015 and 22 of 2015, is under challenge in this appeal. A.S.No.21/2015 was against the decree and judgment in O.S.No.220/2009, and A.S.No.22/2015 was against the decree and judgment in O.S.No.222/2009, rendered by a common judgment dtd. 24/1/2015 of the Munsiff's Court, Ranni. Both the above suits were for the reliefs of injunction. In O.S.NO.220/2009, the plaintiff was aggrieved by the alleged act of the defendant obliterating a pathway which existed through the property of the defendant in curtailment of the easement of necessity of the plaintiff. Accordingly, the plaintiff sought a decree of mandatory injunction in the said suit for the restoration of the above said pathway, and a decree of prohibitory injunction restraining the defendant from interfering with her user of the said pathway. O.S.No.222/2009 was instituted by the 3rd defendant in O.S.No.220/2009 who represented the defendants 1 and 2 as well, for the relief of permanent prohibitory injunction against the plaintiff in O.S.No.220/2009 from cutting open a new pathway through their property. The learned Munsiff, after evaluation of the common evidence adduced by the parties in both the suits, arrived at the finding that the plaintiff in O.S.No.220/2009 was entitled for the decree of mandatory and prohibitory injunctions. The relief of prohibitory injunction sought for in O.S.No.222/2009 was declined.

(2.) The common judgment and decree so rendered by the learned Munsiff was challenged by the 3rd defendant in O.S.No.220/2009 who was the sole plaintiff in O.S.No.222/2009, by filing A.S.No.21/2015 and 22/2015 before the District Court, Pathanamthitta.

(3.) The learned District Judge, before going into the merits of the evidence adduced by the parties, made the observation in the impugned judgment that the plaintiff in O.S.No.220/2009 cannot claim easement by necessity through the way which was set apart either by express consent or by implied consent for providing a way to her property. It is the further observation of the learned District Judge that in the facts and circumstances of the case what could be discerned is that the owner of the servient tenement might have given consent to the owner of the dominant tenement to use a particular portion of the property as means of access and that it would come under the purview of easement by express or implied grant. According to the learned District Judge, the necessity would come to an end once the dominant owner starts using the way, and hence it is not possible to claim any reliefs on the basis of easement by necessity if some obstruction has been caused to the way at a later point of time after the user of the said way by the dominant owner or his assignees. It is further clarified in the impugned judgment that once the easement by necessity gets extinguished by such user, there cannot be any revival, and the real remedy available to the accused person is to claim the right which he enjoyed over the way in existence. In other words, the learned District Judge was of the opinion that once a way comes into existence pursuant to the fulfillment of easement by necessity, the right of the user to claim easement by necessity ceases, and he can only resort to some other rights over that way, consequent to his continuous user, if there is any obstruction caused thereafter. It is thus observed in the impugned judgment that the relief sought for in O.S.No.220/2009 is 'something else not within the purview of the grant of easement by necessity'.