IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1038 of 2004()
1. MUHAMMED BHASHEER, S/O. MOITHEEN KUNJU,
... Petitioner
Vs
1. E.SHAHUL HAMEED,
... Respondent
2. MRS.SHAMEEN ANSARI, W/O. ANSARI,
3. MRS.VAHEETHA BIJILI, W/O. BIJILI,
4. MRS. SHAJEENA KALAM, W/O. KALAM,
For Petitioner :SRI.T.I.ABDUL SALAM
For Respondent :SRI.RAJEEV V.KURUP
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :17/02/2010
O R D E R
THOMAS P.JOSEPH, J.
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R.S.A. NO.1038 of 2004
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Dated this the 17th day of February, 2010
J U D G M E N T
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Plaintiff in O.S. No.403 of 1992 of the court of learned Prl.
Munsiff, Kottayam is the appellant before me. He is aggrieved
though courts below granted a decree in part while prayer for
prohibitory injunction concerning the disputed way towards west of
his property for access to the TB road was not upheld by the courts
below.
2. Suit property as well as the adjacent properties
originally belonged to Fakkar Maitheen Kunju, father of appellant
and on his death the properties devolved on his legal
representatives including the appellant. Mother of appellant
released her right to the children as per document No.4365 of 1124
M.E. Thereafter there was a partition among the children as per
document No.2526 of 1968 in which the suit property – 26.250
cents was allotted to the appellant as B schedule in the partition
deed. An extent of 24 cents on the west and another 3= cents
towards the north-east of the suit property was allotted to
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appellant’s sister, the late Hariffabeevi. Respondents are the legal
representatives of the said Hariffabeevi. Contention of appellant is
that at the time of partition as per document No.2526 of 1968 a
pathway was provided towards west of the suit property along
north of 24 cents allotted to Hariffabeevi so as to reach TB road on
the further west. He prayed for decree for injunction against
interference with his using that way and for fixation of western
boundary of the suit property. Respondents denied that there was
any such way provided in the partition deed towards west of the suit
property for access to the TB road. According to them the way was
provided only for the sharer of 24 cents for access to the TB road
on the further west. It is also their contention that way provided for
the appellant was towards east from the suit property leading to the
ML road on the further east. Learned Munsiff found that there is no
pathway provided in partition deed No.2526 of 1968 leading from
the suit property towards west to reach TB road though a way was
provided for the sharer of 24 cents (Hariffabeevi) on the west of suit
property for such access. Trial court also found that the way
provided for the appellant is towards east from the suit property to
reach ML road on the further east. Trial court granted a decree for
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fixation of boundary while refusing injunction with reference to the
disputed way. First appellate court modified the judgment and
decree of the trail court to the extent that injunction was granted
in favour of the appellant against trespassing into the suit property.
But no relief was granted in respect of the disputed pathway
towards west from the suit property. Hence the Second Appeal
urging by way of substantial question of law whether appellant is
entitled to right of access towards west from the suit property in
law and on facts of the case. Learned counsel for appellant would
contend that courts below were not correct in holding against
existence of way towards west from the suit property. It is also
contended that at any rate appellant is entitled to claim right of way
towards west under Section 13(b) of the Indian Easements Act.
3. Though Advocate Commissioner had inspected the suit
properties immediately after filing of the suit no way leading from
the suit property towards west and reaching the TB road on the
further west could be noticed. On the other hand it came out in
evidence that towards north of the 24 cents allotted to Hariffabeevi
her children have constructed a lodge building and for their access
there was a way from that part of the property towards further west.
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Evidence on record do not show that there was any way as on the
date of suit leading from the suit property to reach TB road. For a
claim of quasi easement to be sustained there must be a formed
road at the time of severance of tenements be it by assignment or
partition (See Leela v. Ambujakshy – 1989 [2] KLT 142 &
Kochan Ramanathan v. Kochan Natarajan – 1990[2] KLJ
617). In this case evidence on record does not support claim of
appellant that there was any such formed way. Therefore appellant
cannot successfully raise a claim of quasi easement over the
disputed way.
4. So far as easement by way of necessity is concerned
that plea can be raised only when such a way is absolutely
necessary for enjoyment of the property. It has come in evidence
and not disputed also that as per partition deed No.2526 of 1968 a
way has been provided and it is still in the use of the appellant,
originating from the suit property, going towards east and reaching
the ML road. It has come in evidence that through ML road
appellant can gain access to the TB road as well. It is not as if the
disputed way is absolutely necessary for enjoyment of the suit
property. In the circumstances claim of easement over the disputed
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way towards west cannot be accepted. On going through the
judgments under challenge and hearing counsel I do not find any
substantial question of law involved in the Second Appeal requiring a
decision.
Second Appeal is dismissed in limine.
THOMAS P.JOSEPH, JUDGE.
vsv