VELAYUDHAN Vs. PADMANABHAN

JUDGEMENT

(1.) The simple question to be considered in this second appeal filed by the defendants is whether a right of way acquired as a grant of easement by the provisions of a partition deed, which was also absolutely necessary for the enjoyment of the dominant tenement at the time of the grant, could be taken as an easement of necessity and treated as extinguished when the absolute necessity ceased by the owner of the dominant tenement acquiring an adjacent property having road access.

(2.) Plaint B-schedule property was allotted to the share of defendants as per Ext. A1 partition deed and A-schedule property lying to the south of it was allotted to the assignor of the plaintiff. There is a road running east-west just on the northern side of B-schedule property. C-schedule is the pathway from the road leading to A-schedule property without which A-schedule had no access at the time of partition. It is part of B-schedule property on its western extremity running north-south. In Ext.A1 partition deed a pathway was provided to A-schedule through C-schedule. The case of the appellants is that after the plaintiff purchased A-schedule property he has also acquired the land lying immediately on the eastern side of A and B-schedule properties touching the northern road and hence through that property he is having access from the road to A-schedule property without using C-schedule property.

(3.) Purchase of the eastern property was denied by the plaintiff. Ext. B1 produced by the appellants as one of the sale deeds of the eastern property was contended by the plaintiff to be not in his name. Appellants have another grievance that they were not permitted to prove two other sale deeds in this respect. They also contended that the pathway provided in Ext.A1 is not C-schedule property but on the eastern side of B-schedule and the description in Ext.A1 is a mistake. Further contention was that the pathway was in disuse and the right is lost by limitation and adverse possession also. All these contentions were found against by both the courts on the evidence and those factual findings have become final and not liable to be reconsidered in second appeal. On the merits also no consideration is called for. The prayer for remand is also not justified to any extent. Appellants had enough opportunities to adduce evidence. Even if their contention regarding acquisition of the eastern property based on Ext. B1 and two other documents is correct, it cannot extinguish the grant under Ext. A1 as an easement of necessity.