Kerala High Court
C. Mohammed vs Ananthachari on 18 November, 1987
Equivalent citations: AIR 1988 Ker 298
JUDGMENTM.M. Pareed Pilllay, J.
1. Appellant is the plaintiff in O.S. 182 of 1976 of the Munsiff Court, Kasaragod. The suit was filed by the plaintiff for a mandatory injunction directing the defendants to restore the 'Kattapuni' (bund) between his areca garden in R.S. 135/4 on the north and paddy field in R.S. 135/5 on the south in its original condition and for a prohibitory injunction restraining the defendants from committing any damages to the bund and for other consequential reliefs. It is the case of the plaintiff that the "bund" lying between his areca garden and the paddy field has been used by him and his ancestors as a pathway and that this is the only pathway for his ingress and egress to his property.
2. The Courts below held that there cannot be any easement by prescription as the plaintiff admitted that the disputed property belongs to him. The only question to be considered is as to whether a plea of ownership and a plea of easement can be advanced alternatively in a suit. Ownership and easement right are inconsistent and cannot co-exist in the same person. Section 4 of the Easements Act defines 'Easement' as follows :
"An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own."
