IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 1089 of 2005()
1. MATHEW MATHEW, S/O.MATHEW MATHEW,
... Petitioner
2. AELYKUTTY MATHEW, W/O.K. MATHEW,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE EXECUTIVE ENGINEER(B&R), PWD,
3. THE PRINCIPAL, MEDICAL COLLEGE HOSPITAL,
4. GEEVARGHESE KURIAN, RESIDING AT
5. LUKA KURIAN, RESIDING AT
For Petitioner :SRI.M.J.THOMAS
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :26/02/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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R.S.A .NO. 1089 OF 2005
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Dated 26th February 2007
J U D G M E N T
Plaintiffs in O.S.213/1990 on the file of
Munsiff court, Ettumanoor are appellants. Respondents
are the defendants. Appellants filed the suit seeking
a decree for declaration of right of way by easement
of prescription and necessity and for consequential
decree for injunction. Appellants contended that 38
cents in survey No.951/2 of Athirampuzha village
belonged to their uncle Thomas Karimpukalayil and
under Ext.A1 sale deed dated 2/2/1961 he assigned
the property in their favour and while so, 10 cents
of the property was gifted to Polaparayil Aleyamma in
1968 and Government acquired 3 cents of the
property for the purpose of Kottayam Medical College
and as a result of severance of the property by
acquisition, no way is available to the remaining
property in the possession of the appellants and the
way to the plaint schedule property is from the
southern panchayat road where a gate has been
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installed by the Medical college and that way is being
used by plaintiffs and their predecessors for the last
more than 50 years peaceably openely and as of right
and as an easement and they are therefore entitled to a
declaration of right of way by easement of prescription as
well as necessity. Defendants disputed claim and contended
that there is no way to plaint schedule property towards
south and property of the Medical college on the southern
side of plaint schedule property was enclosed by a fence
and appellants are not entitled to decree for declaration
or injunction. Learned Munsiff framed necessary issues.
On the evidence of Pws.1 to 5 and Exts.A1 to A9 and
DW1 and Exts.B1 to B6 and Ext.C1, learned Munsiff found
that appellants did not establish a right of way either by
easement of prescription or easement of necessity and
therefore held that they are not entitled to the decree
sought for. Suit was dismissed. Appellants challenged the
decree and judgment before Sub court, Kottayam in
A.S.51/96. Learned Sub Judge on re-appreciation of
evidence, confirmed the decree and judgment passed by
learned Munsiff and dismissed the appeal. Before the
learned Sub Judge appellants did not press the claim for
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right of easement by prescription and only contended that
they have a right of easement by necessity.
2. This second appeal is filed challenging the
concurrent decree and judgment passed by courts below.
Learned counsel appearing for appellants vehemently argued
that evidence establish that the only way available to the
plaint schedule property is from the southern panchayat
road which runs through the property of Medical college
and When southern portion of the property covered by
Ext.A1 was acquired, appellants lost access to the
remaining property and therefore courts below should have
upheld the claim for right of easement by necessity.
3. On hearing learned counsel and on going through
the judgments of courts below, I do not find any
substantial question of law involved in the second
appeal. Right of easement by prescription though claimed
in the suit, before the first appellate court it was
given a go by. Only right of easement by necessity was
pressed.
4. Appellants claim title and possession of the
property under Ext.A1. Ext.A1 which came into existence
in 1961 shows the eastern boundary of the property
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covered under Ext.A1 was “Nattuvazhy” (a public way).
Appellants cannot contend that the way to plaint schedule
property was from the southern side or that by severance
of property that way was lost. As rightly found by courts
below right of easement by necessity would arise only
when there was a splitting up of the tenement whereunder
property left with appellants cannot be enjoyed without
making use of the acquired property as a way. When Ext.A1
shows that there is access to the remaining property when
the southern portion of Ext.A1 property was acquired,
appellants cannot claim a right of way through the
acquired plot. As per Ext.A1, the eastern boundary is a
way. It is therefore clear that at the time of splitting
up of the property by acquisition in 1963, there was
access to the remaining property. Hence right of easement
by necessity cannot be claimed through the acquired
property. Subsequent splitting up of tenement by execution
of gift deed in 1968 will not enable appellants to claim a
right of way through the acquired property. As rightly
found by courts below right of easement by necessity could
be claimed only over the eastern property, which was
gifted to Aleyamma in 1968. Appellants are not entitled to
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claim a right of easement by necessity over the acquired
property, which was split up five years prior to splitting
up of tenement in 1968. Appellants are not entitled to get
the right of easement by necessity claimed in the suit.
No substantial question of law is involved in the
appeal. Appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.