C MOHAMMED Vs. ANANTHACHARI

JUDGEMENT

(1.) Appellant is the plaintiff in O.S. 182 of 1976 of the Munsiff Court, Kasaragod. The suit was filed by the plaintiff for a mandatory injunction directing the defendants to restore the 'Kattapuni' (bund) between his areca garden in R.S. 135/4 on the north and paddy field in R.S. 135/5 on the south in its original condition and for a prohibitory injunction restraining the defendants from committing any damages to the bund and for other consequential reliefs. It is the case of the plaintiff that the "bund" lying between his areca garden and the paddy field has been used by him and his ancestors as a pathway and that this is the only pathway for his ingress and egress to his property.

(2.) The Courts below held that there cannot be any easement by prescription as the plaintiff admitted that the disputed property belongs to him. The only question to be considered is as to whether a plea of ownership and a plea of easement can be advanced alternatively in a suit. Ownership and easement right are inconsistent and cannot co-exist in the same person. S.4 of the Easements Act defines 'Easement' as follows :

(3.) As P.W. 1 has admitted that the property, through which he claims right of way belongs to him it is difficult to accept his case that he has prescribed easementary right in the property. P.W. 1 deposed that the demolished bund belongs to him absolutely. He claims ownership under a sale deed and stated that he is prepared to produce the same before the court. In view of the above testimony of P.W. 1 the Courts below were justified in dismissing the suit. There is no merit in the Second Appeal and hence the same is dismissed. No costs. Appeal dismissed.