The defendants in OS 469/1983 on the file of the Munsiff’s Court. Irinjalakuda, are the appellants in this second appeal. The said suit was one for a perpetual injunction restraining the defendants from trespassing upon or planting trees or otherwise interfering with the user by the plaintiff of the plaint schedule pathway alleged to be passing along the northern extremity of the 84 cents of land comprised in Sy.No.964/2, which will be adverted to in detail hereafter.

2. The basis of the plaint was right of way over the plaint schedule pathway given under Ext.B1 partition dated 9.4.1119 M.E. Corresponding to the year 1944 and the plaintiff contended that he has unrestricted right to use the pathway as an easement.

3. The defendants/appellants resisted the plaint claim contending inter alia that the plaintiff did not have any subsisting right of easement over the plaint schedule pathway and that whatever rights the plaintiff had, ceased to exist after the execution of Ext.B2 sale deed dt. 9.6.1959.

4. On the side of the plaintiff two documents were marked as Exts.A1 and A2 and the plaintiff was examined as P.W.1 who is a toddy tapper by profession. Another toddy tapper was examined as P.w.2. On the side of the defendants/appellants, the 1st defendant was examined as D.W.1 and an immediate neighbour was examined as D.W.2. Two documents were marked as Exts.B1 and B2.

5. The learned Munsiff, after trial, as per judgment and decree dt. 20.11.1985 dismissed the suit with costs. On appeal by the plaintiff, the lower appellate court as per judgment and decree dt. 6.11.1990 reversed the decree passed by the trial court and decreed the suit as prayed for, but without costs. It is the said appellate decree which is assailed in this second appeal by the defendants.

6. While admitting this second appeal, notice on the following substantial questions of law was ordered by this court:-

“(a) Cannot an easement by express grant the released by implication?

(b) Is not section 38 of the Indian Easement Act applicable to an easement by express grant?

(c) Is not the burden of proving an easement by necessity upon the person who claims it?

(d) Is not Ext.B2 a document releasing the right of easement by the vendor?

(e) Cannot an easement by express grant be lost by abandonment?”

7. When this second appeal came up for hearing on 3.1.2005 the learned counsel for the respondent did not appear and argue the case in spite of notice and therefore the learned counsel for the appellants was heard and a judgment allowing the appeal was dictated in open court. Thereafter the learned counsel for the respondent requested for an opportunity to hear him and accordingly the unsigned judgment was recalled and both sides were again heard. I heard Advocate Sri. P.V. Chandramohan appearing for the appellants and Advocate Sri. Ranjit Thampan appearing for the respondent.

8. Adv. Sri Ranjit Thampan, the learned counsel appearing for the respondent, made the following submissions before me in support of the judgment under appeal:-

Even though the 1st defendant examined as D.W.1 would say that the plaintiff has access to the panchayath road through the paddy field, the plaintiff examined as P.W.1 has definitely stated that the plaint schedule pathway is the only access for him to reach the panchayath road. Under Ext.B1 partition deed, a right of way has been given by way of express grant. As per Ext.B2 and the other sale deed executed on the same day, there was only a mutual exchange of the properties between Velunni and Ravunni. Therefore, when Velunni got title over 38½ cents of land covered by Ext.B2, it can only be subject to the easement which was attached to the land. There was no need to further reserve the right of easement in Ext.B2 in view of sec.19 of the Indian Easements Act. 1882. The defendant has not proved any abandonment, extinguishments, release or implied surrender of the easement which runs with the land consequent on the transfer under Ext.B2 by virt