Back
2010 (1) Supreme 23
SUPREME COURT OF INDIA
Tarun Chatterjee and V.S.Sirpurkar, JJ.
Sree Swayam Prakash Ashramam & Anr. — Appellants
versus
G. Anandavally Amma & Ors. — Respondents
Civil Appeal No. 7 of 2010
(Arising out of SLP (C) No. 17235 of 2006)
Decided on : 05-01-2010
Facts of the Case :
Present Appeal has been filed against judgment and order passed in Second Appeal of High Court, by which High Court had affirmed the concurrent findings of fact arrived at by the courts below in a suit for declaration of easement rights in respect of ‘B’ Schedule property of plaint as a pathway to the ‘A’ Schedule property of plaint.
Findings of the Court :
High Court was fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which could be inferred from the circumstances for the reason that no other pathway was provided for access to ‘A’ schedule property of plaint and there was no objection also to the use of ‘B’ schedule property of the plaint as pathway by the original plaintiff at least up to 1982, when alone the cause of action for the suit arose. Trial Court on consideration of the evidence of both parties recorded the finding that there was no evidence on record to show that either Y or the defendants themselves until 1982 had objected to the plaintiff’s use of ‘B’ schedule pathway to access ‘A’ schedule property. The Trial Court on consideration of the plaintiff’s evidence and when the defendant had failed to produce any evidence, had come to the conclusion that the plaintiff was given right of easement by Y as an easement of grant. There was Nothing to upset the findings of fact arrived at by Courts below, in exercise of powers under Article 136 of the Constitution of India. Finding of the Trial Court that from the evidence and pleadings of parties ‘B’ schedule pathway was given to plaintiff/respondent as an easement of grant. It is true that the defendant/appellant alleged that no implied grant was pleaded in the plaint. The Trial Court, was justified in holding that such pleadings were not necessary when it did not make a difference to the finding arrived at with respect to the easement by way of grant. Such being the state of affairs and such being the findings accepted by the High Court in second appeal, not possible for Court to interfere with such findings of fact arrived at by the High Court which affirmed the findings of Courts below. Appeal having no merit was dismissed.
Result : Appeal dismissed.
Yes, an easement by prescription can be transferred to a subsequent purchaser even if it is not explicitly mentioned in the sale deed. The key principle is that such easements are acquired through continuous, open, and adverse use over a period of time, which creates a right by prescription. Once established, this right can be recognized as an easement of grant or of necessity, and it can be implied or inferred from the circumstances and the conduct of the parties involved.
The courts have acknowledged that the continuous and uninterrupted use of a pathway or easement over a period of time can give rise to a legal right that is binding on subsequent owners, regardless of whether it was specifically recorded or mentioned in the sale documentation. The essential requirement is that the use must have been adverse, continuous, and apparent, thereby creating a prescriptive right that passes with the property to subsequent purchasers.
JUDGMENT
Tarun Chatterjee, J. —
1. Delay condoned.
2. Leave granted.
3. This appeal is directed against the judgment and order dated 9th of May, 2006, passed in Second Appeal No.198 of 2000 of the High Court of Kerala at Ernakulam, by which the High Court had affirmed the concurrent findings of fact arrived at by the courts below in a suit for declaration of easement rights in respect of ‘B’ Schedule property of the plaint as a pathway to the ‘A’ Schedule property of the plaint.
4. It may be mentioned that during the pendency of the second appeal before the High Court of Kerala, the original plaintiff expired and his legal representatives were brought on record as substituted respondents before the High Court, who are respondents in this appeal. For the sake of convenience, the appellants herein would be referred to as ‘the defendants’ as they were in the original suit for declaration of easement and permanent injunction filed by the original plaintiff, who is now represented by the respondents herein.
5. The case that was made out by the plaintiff (since deceased), in his plaint was as follows: Plaint A and B schedule properties originally formed part of a vast extent of properties which belonged to one Yogini Amma. During the life time of Yogini Amma, she was in enjoyment and management of the entire property for the benefit of the first defendant Ashramam. On her death, her brother and sole legal heir Krishna Pillai and other disciples executed a settlement deed dated 20th of June, 1948 as per the directions of the deceased Yogini Amma. As per the settlement, the Schedule ‘A’ property of the plaint was allotted to the original plaintiff (since deceased). Even thereafter, the original plaintiff (since deceased) continued to be in possession and enjoyment of the said properties effecting mutation and paying taxes. Even before the settlement deed was executed, during the life time of the said Yogini Amma, there is a building being ‘A’ schedule property of the plaint that was in occupation of the original plaintiff (since deceased). There is a gate provided on the South Western portion of the ‘A’ schedule property for ingress and egress to the same and ‘B’ schedule property of the plaint which is a pathway extends up to the road on the West from the said gate. The said gate and ‘B’ schedule pathway are as old as the building in ‘A’ schedule property of the plaint. Other than ‘B’ schedule pathway, there is no other means of direct or indirect access to ‘A’ schedule property of the plaint from any road or pathway. The ‘B’ schedule pathway of the plaint was granted to the original plaintiff (since deceased) as easement right by the said Yogini Amma and the original plaintiff (since deceased) continued to use it as such from time immemorial. This pathway is situated within the property which is now under the control and use of the defendants. Defendant Nos. 2 to 4 tried to close down the gate on the South Western extremity of the B schedule pathway and were also attempting to change the nature and existence of the ‘B’ schedule property of the plaint. An attempt in that direction was made on 21st of July, 1982. Original plaintiff (since deceased) apprehended that defendant nos. 2 to 4 might forcibly close down the pathway. Hence, he filed a suit for declaration of easement of necessity or of grant and permanent injunction restraining the defendants from obstructing the ‘B’ schedule pathway and for other incidental reliefs.
6. The defendant No.1 was the Matathipadhi of the Ashramam; defendant Nos. 2 and 3 were its office bearers and defendant No.4 was only an inmate of the Ashramam. Defendant Nos. 1 to 4 entered appearance and filed a joint written statement praying for dismissal of the suit by making the following defence:
The suit was not maintainable. The description of ‘A’ schedule and ‘B’ schedule properties was incorrect. The original plaintiff (since deceased) was attached to the institution from his childhood. In consideration
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
