JACOB Vs. ELSY

JUDGEMENT

(1.) The appellant is the plaintiff in O. S. No. 763/1995 on the files of the II Additional Munsiff's Court, Thrissur as well as the appellant in A. S. No. 219/1997 on the files of the I Additional District Court, Thrissur. The aforesaid Original Suit was originally one for permanent prohibitory injunction only and subsequently, amended and incorporated the prayer for declaration of an easement of right of way by prescription and necessity. Even though the plaintiff had claimed both easement of right of way by prescription and necessity in appeal, later, he has abandoned the claim of prescriptive easement right. The Courts below concurrently negatived the claim of the plaintiff, on a finding that the plaintiff has miserably failed to prove severance of property and an alternative way is in existence for the ingress and egress of the plaintiff and his family members to plaint 'A' schedule property. The legality and correctness of the aforesaid finding are assailed in this Second Appeal, on the basis of the questions of law raised in the Memorandum of Appeal.

(2.) Heard the learned counsel for the appellant and learned counsel appearing for the respondents.

(3.) It is the case of the appellant / plaintiff that 'A' schedule property belongs to him by virtue of Ext.A1 sale deed dated 10/05/1994 and thereafter, he has been using plaint 'B' schedule pathway passing through 'C' schedule property of the defendants, for ingress and egress to 'A' schedule property. It is also averred that the properties lying on both sides of 'B' schedule pathway belong to one person, by name Chittilappilly Vareedu, and the subsequent owners who purchased the properties from the said Chittilappilly Vareedu. Thus, the predecessor - in - interest of both 'A' and 'B' schedule properties was common and thereby, the plaintiff has got an easement right by necessity, according to the plaintiff.