Kerala High Court · 2012

HARUN-UL-RASHID, J.------------------------A.S.No.326 Of 2001----------------------Dated this the 8th day of August, 2012.J U D G M E N TThe 2nd defendant is the appellant. The appeal is directedagainst the judgment and decree dated 30.1.2001 inO.S.No.423/1992 on the file of the Sub Court, Palakkad. Suitwas filed for declaration and injunction. The trial court decreedthe suit declaring that the plaintiff has got easement right ofnecessity through plaint 'B' schedule property to take tractor orcattle to plaint 'C' schedule property. The defendants and theirmen are restrained by way of permanent injunction not tointerfere with peaceful enjoyment of the plaint 'B' schedule wayto reach plaint 'C' schedule paddy fields by plaintiff and theirmen. The parties hereinafter are referred to as the plaintiff anddefendants as arrayed in the suit.2.There are three items of properties. Plaint 'A' scheduleproperty originally belong to one Kandan. He gifted plaint 'A'schedule property along with other properties in favour of hisdaughter Kalyani. Plaint 'B' schedule property is part of plaint 'A' ::2::A.S.No.326 Of 2001schedule properties. Plaint 'B' schedule property is a tractortrack having a width of 15 feet which leads to the aforesaidKalyani's paddy field, described as plaint 'C' schedule to theplaint. Plaintiff obtained plaint 'C' schedule property from Kalyanias per Ext.A1 assignment deed No.139/85. As per the plaintaverments, Kesavan, who is the power of attorney holder ofkalyani, entered into an agreement with the 2nd defendant forsale of plaint 'A' schedule property excluding plaint 'B' scheduleproperty. The registered sale agreement No.730/75 is marked asExt.B1. plaintiff's case is that she used to take tractor throughplaint 'B' schedule property to plaint 'C' schedule property forcultivation purposes and it is the only way to plaint 'C' scheduleproperty and the plaintiff is entitled to get declaration ofeasement right since the 2nd defendant's men did not accept thecase of the plaintiff. It is also pleaded that by virtue of Ext.B1agreement, possession of plaint 'A' schedule property has beenhanded over to the 2nd defendant and the 2nd defendant put up afencing around the properties leaving a space having a width of15 feet on the southern side for the ingress and egress of tractors ::3::A.S.No.326 Of 2001to the paddy fields of Kalyani which have been subsequentlyassigned in favour of the plaintiff as per Ext.A1. It is also statedthat the 2nd defendant has already provided a tractor track so asto reach plaint 'C' schedule properties. 3.In the written statement filed by the defendants 1, 3 &4 it is contended that there was no tractor track in the propertyas pleaded, that the suit was filed with an intention to block thedisposal of the property, that the affairs of the 2nd defendant isunder liquidation, that the liquidator is in possession of the entireland and other properties and that the plaintiff has no accessthrough the suit properties. The 2nd defendant filed a separatewritten statement. It is inter alia contended that plaint 'A'schedule property was put in possession of the 2nd defendantunder an agreement for sale dated 9.4.1975 between Kalyani andthe 2nd defendant, that ever since the date of agreement, the 2nddefendant had been in actual possession and enjoyment of plaint'A' schedule property, that the property was protected by acompound wall on the front side and barbed wire fencing on allother sides, that it is not possible to enter plaint 'C' schedule ::4::A.S.No.326 Of 2001property through plaint 'A' schedule property, that there is noway in existence as stated in plaint 'B' schedule of the plaint, thatneither the plaintiff nor her predecessors had ever drove tractoror cattle through plaint 'A' schedule property and that the plaintiffis not entitled to get any right of way through plaint 'A' scheduleproperty.4.PW1 is the power of attorney holder of the plaintiff.He is the nephew of the plaintiff. The extent of property involvedin Ext.B1 agreement is 6.5 acres of land. PW1's father, who wasthe power of attorney holder of Kalyani, executed Ext.B1agreement and possession of the property was handed over tothe 2nd defendant. Defendants contended that the plaintiff hadnot used plaint 'B' schedule way as alleged in the plaint.According to the defendants there was no such way in existenceand also contended that plaintiff had got other access to herproperty. The description of the property in Ext.A1 sale deedwould show that the 2nd defendant's property is situated on theeast-west and north of plaint 'C' schedule property. Southernboundary is paddy field in S.No.418/9. Plaint 'C' schedule ::5::A.S.No.326 Of 2001property is having an extent of 54 cents. The commissioner, whoinspected the property, submitted Exts.C1 report and C2 plan. InExt.C2 plan, plaint 'A', 'B' and 'C' schedule properties wereidentified separately. The boundaries of plaint 'C' scheduleproperty described in Ext.A1 tallies with the boundary in Ext.C2plan. The southern boundary of plaint 'A' and 'C' scheduleproperty is bounded by a canal having side walls. From the planit is seen that plaint 'B' schedule pathway is leading from 15 feetwide passage along the canal bund and reaches point A andproceed further through the southern portion of plaint 'A'schedule property and it reaches the south western boundary ofplaint 'C' schedule paddy field. The court below noticed thestatement of PW1 that tyre marks of tractor could be seen onlyduring the cultivation period, because, he used to take tractorthrough the same only during the period of cultivation. Trialcourt appreciated the evidence of PW1 and perused Exts.A1 & B1documents. The court observed that from the evidence of PW1,Exts.A1 & B1 documents, it can be seen that plaint 'A' & 'C'schedule properties were owned and possessed by Kalyani and ::6::A.S.No.326 Of 2001she assigned plaint 'C' schedule property to the plaintiff by virtueof Ext.A1 sale deed. By executing Ext.B1 agreement, Kalyaniagreed to sell plaint 'A' schedule property to the 2nd defendantand handed over possession of the property. In the plaint it isaverred that there is a specific understanding between Kalyaniand 2nd defendant to provide plaint 'B' schedule pathway to plaint'C' schedule property, but, there is no evidence either in Ext.A1or in Ext.B1 to support the said contention. At the same time, itis clear that plaint 'A' and 'C' schedule properties were divided atthe time of execution of Ext.B1 agreement. The court below alsonoticed the fact that southern boundary of plaint 'C' scheduleproperty is a canal which is lying in a higher level. The courtbelow examined the question as to whether the plaintiff is havingingress and egress to plaint 'C' schedule property.5.It is not specifically pleaded that the plaintiff had gotother alternative access to plaint 'C' schedule property. ThoughDW1 in his evidence stated that there are other alternative waysfor the plaintiff, the said ways are not shown to the commissionerat the time of his visit. On going through the evidence on record, ::7::A.S.No.326 Of 2001it is not possible to take tractor on the southern side of plaint 'C'schedule property since there is canal bund on the southern sideof plaint 'C' schedule property about 7 feet in height. The courtbelow on evidence found that the contention raised by thedefendant that the plaintiff has got alternative ways is withoutany basis. It is not disputed that plaint 'A' and 'B' scheduleproperties are owned by one individual and divided in the year1975 at the time of execution of Ext.B1 agreement. Therefore,the contention of the appellant that there is no severance ofproperty and therefore, the plaintiff cannot claim easement ofnecessity is without any substance. Plaintiff claims easement bynecessity. The court below rightly observed that necessarily, away must be provided to plaint 'C' schedule property. From theevidence on record, it is clear that the 2nd defendant and theirmen attempted to obstruct the plaintiff from taking tractor toplaint 'C' schedule property. The court below after appreciatingthe evidence took the view that the plaintiff has establishedeasement by necessity, therefore, the plaintiff is entitled to getdeclaration and injunction against the defendants. On a detailed ::8::A.S.No.326 Of 2001examination of the materials on record, facts and circumstancesof the case, this Court is of the view that the findings entered bythe trial court is legal and valid. I agree with the findingsrecorded by the court below and find that the appeal is devoid ofany merit.In the result, the appeal fails and accordingly, dismissed.No order as to costs. HARUN-UL-RASHID, Judge.bkn/-