Kerala High Court

Variyam Kunnummal Aneesan vs Ariyara Meethal Kumaran on 21 May, 2024

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
              THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
        TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
                          RSA NO. 51 OF 2024
AGAINST THE JUDGMENT AND DECREE DATED 24.02.2023 IN A.S.NO.12 OF
2020 OF SUB COURT, VATAKARA ARISING OUT OF THE JUDGMENT AND DECREE
DATED 31.01.2020 IN O.S.NO.223 OF 2015 OF MUNSIFF COURT, NADAPURAM
APPELLANTS/APPELLANTS/DEFENDANTS:

    1       VARIYAM KUNNUMMAL ANEESAN
            AGED 40 YEARS
            S/O.KUMARAN, KACHERI AMSOM DESOM, VATAKARA TALUK,
            KOZHIKODE DISTRICT, PIN - 673005
    2       VARIAYAM KUNNUMMAL PRASAD
            AGED 40 YEARS
            S/O.KUMARAN, KACHERI AMSOM DESOM, VATAKARA TALUK,
            KOZHIKODE DISTRICT, PIN - 673005
            BY ADV.ZUBAIR PULIKKOOL


RESPONDENT/RESPONDENT/PLAINTIFF:

            ARIYARA MEETHAL KUMARAN
            AGED 68 YEARS
            S/O.CHEKKOTTI, RESIDING AT ELAMTHOTTATHIL HOUSE, KACHERI
            AMSOM DESOM, EDACHERI NORTH POST, VATAKARA TALUK,
            KOZHIKODE DISTRICT, PIN - 673502

     THIS   REGULAR   SECOND   APPEAL   HAVING   BEEN   FINALLY   HEARD   ON
21.03.2024, THE COURT ON 21.5.2024 DELIVERED THE FOLLOWING:
 RSA NO. 51 OF 2024               2



                                                        CR

                          JUDGMENT

Dated this the 21st day of May, 2024

This Regular Second Appeal has been filed under Section

100 r/w Order XLII Rule 2 of the Code of Civil Procedure (for

short, 'the C.P.C.' hereinafter) against the decree and

judgment in A.S.No.12/2020, dated 24.2.2023 on the files of

the Sub Court, Vatakara, arose out of the decree and

judgment in O.S.No.223/2015, 31.1.2020 on the files of the

Munsiff Court, Nadapuram. The appellants herein are the

defendants in the suit.

2. Heard the learned counsel for the appellants on

admission. Perused the trial court records.

3. I shall refer the parties in this appeal as 'plaintiff'

and 'defendants' for convenience.

4. The suit was filed by the plaintiff, seeking the relief

of mandatory as well as consequential prohibitory injunction.

According to the plaintiff, when plaint schedule properties

were severed, there arose a necessity to provide a way

towards plaint A schedule property. Accordingly, a way

through plaint C schedule property was provided through the

extreme south side of plaint C schedule property lying in east-

west direction starts from south-east corner of the plaint A

schedule property on the west and reaches the mud road on

the east. The eastern boundary of the plaint C and F schedule

properties is a mud road. According to the plaintiff, plaint B

schedule is the way so provided. But the defendants, on

15.9.2015, obstructed B schedule pathway, which

necessitated the suit.

5. The defendants entered appearance and denied the

severance of tenements. According to the defendants, no way

as plaint B schedule available at any point of time and the way

for ingress and egress to the plaint A schedule property is a

public road from the south which passes through the western

fringe of the plaint A schedule property.

6. Trial court ventured the matter and recorded

evidence. PW1 and PW2 were examined and Exts.A1 to A9

were marked on the side of the plaintiff. DW1 was examined

on the side of the defendants. Exts.C1 to C4 were marked as

court exhibits.

7. The trial court addressed claim of easement by

necessity in terms of Section 13 of the Indian Easements Act,

1882 (for short, 'the Act, 1882' hereinafter) and found the

contention of the plaintiff in his favour and accordingly,

decree was granted as under:

"In the result, the suit is decreed as follows:-

1. The defendants are directed by way of mandatory injunction to set out a pathway having 3 feet width to the plaintiff through the southern boundary of the plaint C schedule property, that also in the route pointed out by the commissioner in Exts.C1 and C2 plan and report.

2. The plaintiff is permitted to set out a way as stated above with the aid of the court in case the defendants are not inclined to

set out a way as ordered by this court.

3. The defendants are restrained by a permanent prohibitory injunction from obstructing the plaintiff from using the said 3 feet width pathway for ingress and egress to Plaint A schedule property.

4. Exts.C1 to C4 shall form part of the decree."

8. The said verdict was challenged before the

appellate court in A.S.No.12/2020 and the learned Sub Judge

also concurred the finding of the trial court.

9. While impeaching the concurrent verdicts, the

learned counsel for the defendants reiterated the contentions

raised before the trial court as well as the appellate court.

According to him, the contention of the defendants that plaint

B schedule is an imaginary way, created by the plaintiff to set

up a false claim and the availability of an alternative way

pleaded and proved, were not considered by the trial court

and the first appellate court and there is failure of proper

appreciation of evidence and therefore, the verdicts impugned

would require interference.

10. Thus, the simple questions arise for consideration

are; 1) What are the essentials to constitute right of easement

by necessity? and 2) What will be the nature and stature of an

alternative way which is sufficient to defeat the claim for

easement by necessity?

11. Section 13 of the Act, 1882 deals with easement by

necessity and quasi-easements. Section 13 is extracted

hereunder:

"13. Easements of necessity and quasi- easements. - Where one person transfers or bequeaths immovable property to another,-

(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or

(b) if such an easement is apparent and continuous and necessary for enjoying the said

subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement; or

(c) if an easement in the subject of the transfer or bequest is necessary, for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or

(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.

Where a partition is made of the joint property of several persons,―

(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or

(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.

The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity.

Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee."

12. Summarising the essentials to constitute right of

easement by necessity, the same are instances stated in

Section 13(a) (c) and (e) of the Act, 1882. The same are

extracted hereunder:

(a) if an easement in other immovable property of the transferor or testator is

necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement.

(c) if an easement in the subject of the transfer or bequest is necessary, for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement.

Where a partition is made of the joint property of several persons,―

(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement.

13. Thus, it is held that, when severance or separation

of joint property by way of transfer or bequest or partition

takes effect, if an easement over the share of one of them is

necessary for enjoying the share of another among them, the

former shall be entitled to such easement. Right of way also

can be claimed by pleading and proving right of easement by

necessity, consequent to severance of tenements.

14. So, in order to substantiate right of easement by

necessity, there should be pleading to the effect that the

properties were held jointly and on severance, there arose a

necessity for enjoyment of a part of the property so separated

or severed by burdening another portion of the property.

15. But, it is the well settled law that easement by

necessity must fail, when a convenient or inconvenient

alternative way is available. It is necessary that the

alternative way shall be one capable of connecting the

tenement and capable for using the same for the beneficial

enjoyment of the tenement. If an alternative way could be

suggested and the same is not one reaching the tenement, the

same could not be held as an alternative way sufficient to

defeat claim of easement by necessity.

16. Coming to the facts of this case, in paragraph

No.20 of the trial court judgment, the learned Munsiff

extracted evidence of DW1, examined on the side of the

defendants to see severance of tenements, based on title

deeds Exts.A1 to A7 and the Commission Report, found on

appreciation of evidence, that the plaintiff succeeded in

establishing right of easement by necessity over plaint B

schedule to reach plaint A schedule property and the same

was blocked by the defendants.

17. Therefore, the contention raised by the learned

counsel for the defendants that the trial court and the first

appellate court wrongly appreciated evidence to find

severance of tenements and right of easement by necessity,

cannot be countenanced.

18. Another point argued by the learned counsel for the

defendants, suggesting an alternative pathway, so as to defeat

claim of easement by necessity, also required to be addressed.

Going by the trial court judgment, it was found by the trial

court that the alternative pathway suggested by the

defendants is not available to reach the plaint schedule

property and there is a gap of 3 meters in between the

alternative pathway and the plaint schedule property from the

said way. DW1 also admitted non availability of this way up to

plaint A schedule property, as the same would end on the

property of Kunjikrishnan.

19. Going by the available materials, it is well

discernible that, at present, apart from plaint B schedule

pathway, no other pathway is available to reach plaint A

schedule property and the alternative pathway suggested by

the defendants, is one not capable of reaching the plaint A

schedule property, since there is a gap of 3 meters in between

the plaint A schedule property and the alternative pathway.

When a plea as to availability of alternative way is raised to

defeat the claim of easement by necessity in relation to a way,

the alternative way should be one connecting the property for

which the beneficial enjoyment is essential, and capable of

using the same as a way, having access without any

interruption. When the alternative pathway is not one

available to reach the tenement, the same could not be

adjudged as an alternative pathway, so as to defeat the claim

of easement by necessity.

20. In view of the discussion, it is held that the trial

court as well as the appellate court rightly decreed the suit

and the said verdicts do not require any interference.

21. In this case, in fact, the learned counsel for the

appellant failed to raise any substantial question of law

warranting admission of the second appeal. Order XLII Rule 2

provides thus:

"2. Power of Court to direct that the appeal be heard on the question formulated by it.-At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100."

22. Section 100 of the C.P.C. provides that, (1) Save as

otherwise expressly provided in the body of this Code or by any

other law for the time being in force, an appeal shall lie to the

High Court from every decree passed in appeal by any Court

subordinate to the High Court, if the High Court is satisfied

that the case involves a substantial question of law. (2) An

Appeal may lie under this section from an appellate decree

passed ex parte. (3) In an appeal under this section, the

memorandum of appeal shall precisely state the substantial

question of law involved in the appeal. (4) Where the High

Court is satisfied that a substantial question of law is involved

in any case, it shall formulate that question. (5) The appeal

shall be heard on the question so formulated and the

respondent shall, at the hearing of the appeal, be allowed to

argue that the case does not involve such question. Proviso

says that nothing in this sub-section shall be deemed to take

away or abridge the power of the Court to hear, for reasons to

be recorded, the appeal on any other substantial question of

law, not formulated by it, if it is satisfied that the case involves

such question.

23. In the decision in Nazir Mohamed v. J. Kamala and

Others reported in [2020 KHC 6507 : AIR 2020 SC 4321 :

2020 (10) SCALE 168], the Apex Court held that:

The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722].

24. In a latest decision of the Apex Court in

Government of Kerala v. Joseph, reported in [2023 (5)

KHC 264 : 2023 (5) KLT 74 SC], it was held, after referring

Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC

179] (three - Judge Bench), as under:

For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well - established requirements. The primary and most important of them all is that the appeal

should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court.

25. The legal position is no more res-integra on the point

that in order to admit and maintain a second appeal under

Section 100 of the C.P.C., the Court shall formulate substantial

question/s of law, and the said procedure is mandatory.

Although the phrase 'substantial question of law' is not defined

in the Code, 'substantial question of law' means; of having

substance, essential, real, of sound worth, important or

considerable. It is to be understood as something in

contradistinction with - technical, of no substance or

consequence, or academic merely. However, it is clear that the

legislature has chosen not to qualify the scope of "substantial

question of law" by suffixing the words "of general