JANU Vs. LAKSHMI AMMA

JUDGEMENT

(1.) The plaintiff is the appellant. The plaintiff filed a suit for injunction directing the defendants to restore the pathway that existed along the northern portion of the plaint B schedule property and for a permanent injunction restraining them from interfering with the plaintiff's user of that pathway. Plaint A and B schedule properties belonged to jenm to the tarwad of the plaintiff. The suit properties were outstanding on lease with one Karikka. Karikka applied for and obtained assignment of the rights over plaint A and B schedule properties under the Kerala Land Reforms Act. Thereafter Karikka sold Plaint A schedule property under Ext. A1 dated 20-12-1980 to the plaintiff and the plaint B schedule property under Ext.B1 dated 8-12-1981 to defendants 1 and 2. According to the plaintiff Karikka was residing in plaint A schedule property and was using the pathway that existed on the northern portion of the Plaint B schedule property for ingress into and egress from his house situated in plaint A schedule property. The plaintiff pointed out that in continuation of the pathway through the plaint B schedule property there existed a pathway leading to the further west and that was how Karikka was having access to the outside world from the plaint A schedule. The plaintiff contended that after she purchased the plaint A schedule property under Ext. Al she was using the same pathway to go the west. But after defendants 1 and 2 purchased the plaint B schedule . property under Ext.B1 they are obstructing the plaintiff from using the pathway and had in fact tampered with the pathway that existed. It was also pointed out that the defendants have put up a Kadambaya on the north-western corner of the plaint B schedule property and were making use of it for going to the west through the property of one Gangadhara Poduval. The defendants resisted the suit. They denied the existence of any pathway through the northern portion of plaint B schedule property. They contended that in any event the properties lying to the south, east and north of plaint A schedule property belonged to the plaintiff and that the plaintiff had access to plaint A schedule property purchased from karikka through the property lying on the south. They pointed to a pathway that according to them existed through the southern property. They also pointed out that even while Karikka was residing in Plaint A schedule property he had access through the properties of all sides of plaint A schedule property and that nobody had prevented him from using any of those fields surrounding the plaint A schedule property.

(2.) In support of her case, the plaintiff produced Ext.A1 assignment deed in her favour and in addition to examining herself as P.W.1 examined PWs 2 and 3. The defendants produced Ext. B1 assignment deed of the plaint B schedule in their favour. The 3rd defendant got himself examined as D. W. 1 and a son of Karikka the assignor of the parties was examined as D. W.2. A commission was issued and the Commissioner prepared a plan Ext.C1 and report Ext.C2. In the report Ext.C2, the Commissioner reported that at present there was no pathway through the plaint B schedule property from the western side fields but there is a bamboo kadambaya put up at the entrance of B schedule property. The Commissioner also reported that to the south of plaint A schedule property which is one belonging to the tarwad of the plaintiff - according to the plaintiff - there was 'a thin, very narrow pathway running down to the southern paddy fields. It is very difficult to walk through this way, being slippery and narrow.' On the basis of the evidence the Trial Court held that there existed a pathway as claimed by the plaintiff and that the plaintiff had a right of way through the plaint B schedule property as claimed by way of an easement of necessity. The Trial Court therefore decreed the suit for a mandatory injunction directing the defendants to restore the pathway through the plaint B schedule property. On appeal by the defendants the lower appellate court held that the plaintiff could pass through the narrow pathway in the southern property to reach the plaint A schedule property and hence it could not be said that the plaintiff has an easement of necessity for reaching the plaint A schedule property. In that view the lower appellate court reversed the decree of the Trial Court and dismissed the suit. It is challenging this decree of the lower appellate court that the plaintiff has come up with this Second Appeal.

(3.) The question that arises for consideration in this Second Appeal is whether the plaintiff had a right of way through the plaint B schedule property by way of easement of necessity. The plaint A and B schedule properties belonged to one Karikka on leasehold interest. Subsequently, Karikka acquired jenm right over the properties by applying under the Kerala Land Reforms Act. Karikka thereafter sold the two parcels separately, plaint A schedule under Ext.A1 to the plaintiff and plaint B schedule under Ext.B1 to defendants 1 and 2. Clearly therefore there has been a severance of tenement in this case. Karikka retained the portion lying to the north of plaint B schedule property and to the west of plaint A schedule property. The position therefore is that plaint A schedule would be land locked if we consider the plaintiff as an assignee from Karikka. This is therefore a case where a right of way by way of an easement of necessity can arise in favour of the plaintiff. DW.2, the son of Karikka examined in the case is clearly deposed that there was a pathway in the northern portion of plaint B schedule and that was the pathway that is being used for ingress into and egress from plaint A schedule property, wherein Karikka was residing. It is therefore clear that at the time of severance of two tenements there existed a pathway through the northern portion of the plaint B schedule property. It is therefore clear that prima facie the plaintiff is entitled to a right of way through the plaint B schedule property by way of an easement of necessity. But the claim of the plaintiff is met by the defendants by pointing out that the properties to the south, east and north of plaint A schedule belonged to the plaintiff herself and the plaintiff could have access from the outside world to the plaint A schedule property through the said properties. They also specifically contended that there is a pathway passing through the property lying to the south of plaint A schedule property, which the plaintiff could use as a matter of right, since the southern property is also a property that belonged to her. According to the defendants therefore there is no necessity in this case for the plaintiff to have a pathway through the plaint B schedule property. It is pointed out that an easement of necessity could arise only if the plaintiff establishes that such a pathway was really necessary.