Thomas Joseph vs Joby Thomas and Biju Joseph

Thomas p. Joseph, J.—1st defendant in O.S. No. 125 of 2007 of the court of learned Munsiff, Pala is the appellant before me challenging reversal of judgment and decree in the suit and on counter claim by the learned Sub Judge, Pala in A.S. No. 1 of 2009. Respondent/plaintiff sued for declaration of right of easement and prohibitory injunction initially concerning item No. 2, way along the northern side of item No. 1 which is 6.90 Ares belonging to the respondent as per Ext.A1, assignment deed No. 773 of 2003 executed by one P.L.Raju who acquired the said property from the appellant as per Ext.A2, assignment deed No. 2435 of 2002. Respondent claimed a right of easement by grant over item No. 2 for access to item No. 1. Appellant filed written statement and counter claim showing the property on the further east of item No. 2 and abutting the MC road on the extreme east as counter claim item No. 3 property. Appellant sought relief of injunction against respondent using item No. 3. Thereon, respondent amended the plaint to incorporate a prayer for easement based on necessity over item No. 3 as well. Trial court found against the claim of respondent regarding item No. 3, dismissed the suit and allowed the counter claim restraining the respondent or persons under him from taking vehicles through item No. 2, pathway which passes through the counter claim schedule property and damaging the iron chain installed at the starting point of item No. 3. Respondent challenged that judgment and decree in the suit and counter claim in A.S. No. 1 of 2009. First appellate court allowed the appeal and declared that respondent has right of easement by necessity over plaint schedule item No. 3 (counter claim item No. 3) to take vehicles also and restrained appellant and his men from interfering with the respondent using item No. 3 as well. That judgment and decree of first appellate court are under challenge in the appeal urging the substantial questions of law stated in the memorandum of appeal.

Learned counsel for appellant has contended that respondent has no right over item No. 3, it formed part of property of appellant which has already been mortgaged to the bank and that grant of right to take vehicles through item No. 3 of plaint schedule (counter claim item No. 3) will prejudicially affect right of appellant over the property. It is also contended that appellant has no objection to respondent walking through item No. 3 for access to item Nos. 1 and 2 and that right of respondent has to be limited to that extent.

Learned counsel who took notice for the respondent has contended that a claim of easement by way of necessity through item No. 3 is established on the facts of the case and that evidence would reveal that after purchase of item No. 1, respondent was taking vehicles to the said property through item No. 2. So far as item No. 3 admits vehicles and vehicles were being taken through item No. 3 even earlier, that right cannot be curtailed. Reliance is placed on the decision in Kochan Ramanathan v. Kochan Natarajan (1990 KHC 316).

I have been given a copy of report and sketch prepared by the Advocate Commissioner and a copy of deposition of appellant as DW1. It is seen from the sketch that the MC road is situated on the extreme east and on its immediate west is the property of appellant. On the further west is the property of respondent (item No. 1). It not very much in dispute that item No. 1 originally belonged to the appellant and he executed Ext.A2, assignment deed in favour of P.L.Raju who in turn, sold item No. 1 to the respondent as per Ext.A1. No doubt, appellant has a contention as regards the transaction between himself and P.L.Raju leading to Ext.A2, but Ext.A2 remains as such even now. On the strength of Ext.A2, respondent has acquired item No. 1 as per Ext.A1. There is no challenge in this case to the title and possession of respondent over item No. 1 as per Ext.A1.

It is also not in dispute that along item No. 2, pathway lying on the northern side of item No. 1, respondent was given a right of access even as per the documents of title relied on by him. Therefore, right of respondent over item No. 2 cannot be disputed.

What remains is the right claimed by the respondent over item No. 3, pathway which lies in continuation of item No. 2 and extending upto the MC road on the east, through the property of appellant. It is not in dispute and the sketch prepared by the Advocate Commissioner also shows that item No. 3 has the same width as item No. 2. For access to and from item No. 1 to the M.C.road on the east, one has to pass through item Nos. 2 and 3. In between the property of appellant and item No. 2, there is a thodu which cuts across item Nos. 2 and 3 as well and as learned counsel for appellant submits, earlier, coconut palms were spread across the thodu to gain access to item No. 3 from item No. 2 and later, appellant has concreted that portion and made into a proper access from item No. 2 to item No. 3. Whatever that be, question is whether respondent has the right to take vehicles through item No. 3 to item Nos. 1 and 2. I must notice that appellant is not disputing that respondent can walk through item No. 3 for access to item No. 2 and following that, to item No. 1. Evidence on record reveals that the only access to item No. 1 is from the MC road on the extreme east for which purpose one has to go along item Nos. 2 and 3. Therefore, it leaves me no doubt that respondent has a right of easement by necessity over item No. 3.

What remains is only whether respondent has the right to take vehicles through item No. 3? It is not disputed that item Nos. 2 and 3 would admits vehicles. I have been taken to the evidence of appellant as DW1 where it is stated that respondent used to take materials in lorries to item No. 2 (obviously after Ext.A1, assignment deed in his favour). Appellant has also conceded that for the purpose of taking vehicles to item No. 1, use of item No. 3 is a must

When it is revealed from the evidence that respondent was taking vehicles through item No. 3, then to item No. 2 and then to item No. 1 and the way admits vehicles there is no reason why that right should be denied to the respondent. And that is what the decision in Kochan Ramanathan v. Kochan Natarajan also says. In that view of the matter I do not find any substantial question of law involved in this appeal requiring its admission. First appellate court is correct in upholding the right of respondent to take vehicles as well through item No. 3.

Second appeal is dismissed.

All pending interlocutory applications will stand dismissed.