NARAYANAN NAIR Vs. MARIAMMA KURIAN

JUDGEMENT

(1.) Plaintiffs are the appellants. They sued for declaration of a right of way scheduled in the plaint through the property of the defendants both as an easement of necessity and by prescription. Consequential injunction was also prayed for against obstruction to toe user. While admitting existence of the pathway the defendants contended that it is for their own use and that the plaintiffs who are having alternate access cannot claim any necessity. Prescriptive right was also denied and it was contended that occasional user with permission will not enable any prescriptive right.

(2.) Accepting the oral and documentary evidence including the reports and depositions of two commissioners and the admissions of defendants, the Trial Court and the appellate court found that the pathway scheduled in the plaint is there and it is being used by the plaintiffs and defendants. The Trial Court further found that the user of the way by the plaintiffs is only by permission and not as of right. The appellate court went to the extent of saying that it is only a licence. Both the courts negatived the easement of necessity on the ground of availability of alternate accesses. Though that finding is disputed, plaintiffs now claim only prescriptive easement right. The other grounds, on which the prescriptive easement right was negatived, are:

(3.) The Appellate Judge did only an easy job. He did not care to consider the evidence or arrive at conclusions of his own. He only agreed with the Munsiff without even looking into the evidence.