D. Sreedevi, J. 1. This Second Appeal is directed against the decree and judgment in A.S. No. 97 of 1987 of the Sub Court, Kozhikode, which was tiled against the decree and judgment in O.S. No. 608 of 1983 of the Munsiff s Court, Kozhikode. The defendant is the appellant.
2. The plaintiffs case is this : The plaint A schedule property originally belonged to Thekka Palangat tarwad, from whom the property devolved on Kayyalil Achuma. One Kunhirayan purchased the property from Kayyalil Achuma in the year 1959. He had put up a building and effected improvements. The plaintiff purchased the property in 1966 from Kunhirayan. Kunhirayan dismantled the building, which was in a dilapidated condition and put up a new one and started residing therein. The plaintiff and his predecessors in interest were using the B Schedule bund foringress and egress to the plaint A schedule item. The properties on either side of the B schedule belongs to the defendant. The A schedule property is lying on a lower level. On the allegation that the defendant is attempting to annex a portion of the bund which is used as a pathway to his property the suit has been filed for a decree of permanent injuction.
3. The defendant contested the suit. He would contend that the plaintiff has no right over the B schedule property, as it forms part of his property. The property belonging to the defendnt is a paddy field and B schedule is the varamba in between the paddy fields. An electric post has been planted in the varamba without the consent of the defendant. The post was planted on 17-2-1983. In spite of repeated requests the defendant did not remove the post. Since the defendant has come to know that the post was planted for drawing electric line to a neighbour's house, he did not pursue further for removal of the post. He also denies the allegation that he had attempted to annex the pathway to his property. The plaintiff has access to his property through the southern pathway. The plaintiff and others filed a petition before the R.D.O., alleging that the defendant is obstructing the pathway. The plaintiff and defendant were examined and later it was agreed to provide way for the use of the complainants including the plaintiff through the paddy-field in the possession of the defendant. Thus, a new way was out up so as to gain access from the north-eastern corner of the plaint A schedule property to the public way on the north.
4. The trial Court, after taking evidence, dismissed the suit. Aggrieved by the said decre and judgment, the plaintiff filed A.S. No. 97 of 1987 before the District Court, Kozhikode as A.S. No. 120 of 1987, which was later transferred to the Sub Court, Kozhikode and renumbered as A.S. No. 97 of 1987. The learned Sub Judge set aside the decree and judgment of the trial Court and granted a decree for permanent injunction restraining the defendant from interfering with the user of the schedule passage and also from altering the width of the passage as noted by the Commissioner in Ext. C4 plan. Aggrieved by the said decree and judgment, the defendant has preferred this Second Appeal.
5. Admittedly, the plaint A schedule property originally belonged to Thekke Palangat tarwad and by subsequent as signment it devolved on the plaintiff. The property on the northern side of the A schedule item belongs to the defendant. The plaintiff claims a right of way through B schedule property, which is part and parcel of the defendant's property. A schedule property is lying on a lower level, A commission was issued to prepare a plan of the properties belonging to the plaintiff and the defendant. Plant A schedule property is lying on the sought of the defendant's property. B schedule portion is a bund which starts from the northern road and runs towards the south and ends in the A schedule. According to the plaintiff, he has been using the said pathway for his ingress and egress to the A schedule property. The plaintiff is residing in the building the A schedule item. The defendant denies the plaintiff's right of way over his property. The suit has been filed on the allegation that the defendant has dismantled a portion of the bund and that he is going to dismantle the whole bunds. The defendant's contention is that the plaintiff has no right over the said bund. He admits that a portion of the bund has been cut. The plaintiff and others filed a complaint to the R.D.O. complaining about the dismantling of the said bund. On this the police filed a report after enquiry. Exts. B1 to B6 go to show that the defendant had dismantled a portion of the bund. The plaintiff has not specified in the plaint as to what is the nature of easement, whether easement of necessity or easement by prescription. Even though" the plaintiff denies the defendant' is right over B schedule property. Ext. B1 final decree goes to show that the defendant has right over plots A and B in the sketch attached to the decree. The defendant has proved that the plaint B schedule is a portion of the defendant's property. There is a thodu across the defendant's property: that exists from east to west. Coconut trunks were placed in the thodu for gaining access to the property of the defendant. B Schcedue bund has got a hight of 2 feet. At the evid ;nce stage, the plaintiff claimed easement of necessity and also easement by prescription. To claim prescriptive easement right, the plaintiff has to establish that he has been in continuous user of the way, as of right for a period of 12 years. The Commissioner has prepared Ext. C4 plan, which goes to show that the B schedule bund finds at A schedule property at the point 'P' in the sketch. The entire A schedule is a hilly terrain . The western portion is on a higher level. There are steps to the A schedule item at point 'P'. The Commissioner could see a lane, which is noted as 'PQR', According to the plaintiff, for reaching the road through the said lane, one has to walk miles and hence the lane shown as 'PQR' cannot be used as an easement foring, ress and, egress. It is the settled law that existence of an, alternative track-though inconvenient, will defeat the claim of easement of necessity, as the necessity must be absolute. Since there is an alternaiive pathway, the case of easement by necessity goes. The trial Court held that the plaintiff has no easement by prescription. But the first appellate Court held that there is evidence to prove easement by prescription. Under Section 15 of the Eastment Act, uninterrupted use, for 20 years, as of right, peaceably and openly must be made out. The plaintiff was using the B schedule. Its user can only be permissive. It is a common feature in Indian villages that people generally pass over the ridges between two paddy fields. Their right of way can only be permissive. There is also no evidence to hold that he is enjoying the B schedule ridge as of right for a conlinuous period of 20 years against the interest of the true owner. In the absence of any evidence to prove the necessary ingredients under Section 15 of the Act, I hold that the plaintiff cannot claim easement by prescription.
6. When the Commissioner visiled second time the plaint A and B schedule properties, he has noted a new pathway constructed, which is 85 feet east of the B schedule ridge. The defendant's case is that the plainliff and others filed a complaint before the R.D.O. against the interference of the B schedule ridge and the R.D.O. disposed of the complaint petition on the admission of the defendant Ext. B 6 is the order of me R.D.O. It reads as follows :
"The counter petitioner agreed to construct a new way in lieu of me old path and it appears to me as well as to the counter petitioner more convenient than the former. The counter petitioner is allowed to walk through the old path till the completion of the new one and thus the petition is disposed".
From this, it is clear that the parties entered into a compromise and as per the compromise, the defendant was directed to put a new pathway and accordingly he has constructed the pathway just 85 feet towards the east from the B Schedule ridge. The learned Counsel for the respondent submitted that the said way is not convenient for use as the plaintiff has to walk a distance of 45 feet to enter his house. The learned Counsel for the appellant submitted that the plainliff is entilled to only permissive right of way. It is also submitted for the appellant, that if the present way is to continue he will not be able to use the property conveniently. Therefore, he wants to shift the old bund towards the east so that he can enjoy his properly more conveniently. The very fact that the plaintiff has to walk 45 feel to enter his, properly cannot be a gorund to claim the old bund for his use, especially when he has got another way for his ingress and egress. Therefore, the plaintiff is not entitled to get a decree of injunction as prayed for. The first prayer is for a decree of permanent injunction from altering the bund which originally existed and also from interfering with the right of way of the plaintiff over the B schedule bund. Since a new way has been constructed, the plaintiff is not entitled to get a decree of prohibitory injunction as prayed for. The second prayer is for a mandatory injunction directing the defendant to restore the B schedule way to its original position. As the plaintiff has no right of easement of necessity and also easement by prescription, he cannot claim that he is entitled to walk through the particular portion of the defendant's property, so as to cause hardship to the defendant. The first appellate Court went wrong in appreciating the evidence on record. In the result, the Second Appeal is allowed, the decree and judgment of the first appellate court are set aside and the decree and judgment of the trial Court are restored. No costs.