1. Appellant is the plaintiff in O.S.No.201/2001 and the defendant in O.S.146/2001 on the file of Munsiff Court, Perumbavoor. Respondents in R.S.A 1270/2005 are the defendants in O.S.201/2001 and first respondent therein who is the sole respondent in R.S.A.1267/2005 is the plaintiff in O.S.146/2001. O.S.201/2001 is filed by the appellant seeking a decree for declaration that under Ext.A3 agreement dated 14.2.1988, appellant has every right to continue the pipeline through the plaint B schedule property and to pump water from plaint C schedule property to the plaint A schedule property and also to restrain respondents by a permanent prohibitory injunction from interfering with the plaint D schedule pipeline or taking water through it. O.S.146/2001 was instituted seeking a decree for mandatory injunction directing the appellant to remove the pipeline which passes through the plaint schedule property, not being used and is in a dilapidated condition and a permanent prohibitory injunction restraining appellant from trespassing into the plaint schedule property or using it as a way. Plaint schedule property in O.S.146/01 is the plaint B schedule property in O.S.201/01. Both the suits were tried jointly. Learned Munsiff on the evidence dismissed O.S.201/01 and granted a decree for mandatory injunction in favour of the respondent in O.S.146/01. Appellant challenged the said common judgment in A.S.234/2004 and A.S.235/2004 before Additional District Court, North Parur. Learned Additional District Judge on reappreciation of evidence confirmed the decree of the trial court and dismissed the appeals. RSA 1267/2005 is filed challenging the judgment in O.S.146/2001 as confirmed in A.S.234/2004. RSA 1270/2005 is filed challenging the judgment in O.S.201/2001 as confirmed in A.S.235/2004. The appeals were admitted formulating the following substantial questions of law.

1) Does Ext.A3 document stand cancelled automatically on the death of grantor Varkey due to the non-mentioning of it in Ext.B1 will. What is the effect of the will deed on Ext.A3 agreement?

2) What is the legal effect of the acquiescence of the defendants allowing the plaintiff to take water for many years after the death of late Varkey? Will it constitute acquiescence by the defendants of the plaintiff's right under Ext.A3 document?

2. Learned counsel appearing for the appellant and respondent were heard.

3 The argument of the learned counsel appearing for the appellant is that courts below did not properly appreciate the pleadings or the ambit and scope of Ext.A3 agreement or the right claimed by the appellant. It was argued that Ext.A3 agreement as such was extracted in the plaint and the necessary ingredients of the right claimed was also pleaded, though the particular right of easement was not specifically mentioned, the recitals in Ext.A3 with the contentions raised in the plaint would establish that the right claimed by the appellant is a right of easement by grant and courts below failed to take note of this material aspect. Learned counsel argued that a proper appreciation of Ext.A3 would establish that a right of easement was granted thereunder and plaint A schedule property belonging to the appellant is the servient tenement and plaint B schedule belonging to the respondent is the dominant tenement and under Ext.A1 a right was granted to the appellant by the predecessor of the respondent to take water from plaint C schedule property to the plaint A schedule property for its beneficial enjoyment and plaint E schedule is the pipeline through which water is being taken and in such circumstances the right granted under Ext.A3 is not a licence as found by the courts below but a right of easement by grant and courts below should have granted the decree as sought for in O.S. 201/2001. Learned counsel also argued that findings of the courts below that a document granting easement must be registered under section 17 of Indian Registration Act is not sustainable an