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TARUN CHATTERJEE, V.S.SIRPURKAR
Sree Swayam Prakash Ashramam – Appellant
Versus
G. Anandavally Amma – Respondent
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 propertie
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