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High Court of Kerala
P. BHAVADASAN, J.
Varghese
Versus
Jose Mathew @ Roy & Another
Regular Second Appeal No. 1036 of 2012 & Cross Objection No. 64 of 2014
Decided on: 17-06-2014
Indian Easements Act, 1882 - Section 15 - Doctrine of Lost Grant - Right of way - Denied - Findings of - Held, Merely because S.15 of the Easements Act is not attracted, it may not be proper to decline relief to the plaintiff if other ingredients as mentioned by the authors are satisfied - Courts below were not justified in declining to grant relief to the plaintiff - Merely because the plaintiff is unable to satisfy the ingredients of S.15 of the Easements Act, he cannot be declined relief in case where the claimant is able to prove the existence of pathway and its use as a matter of right for a long period
Key Points: - A pathway used by the plaintiff for over 20 years as the only access to his property gives rise to a prescriptive right (!) (!) . - Section 15 of the Easements Act is not exhaustive; relief may be granted under the lost‑grant principle if all relevant ingredients are satisfied (!) (!) . - Courts may apply the doctrine of lost grant to allow claims based on long user and presumed grant, even when formal Section 15 requirements are not met (!) (!) . - The absence of a lost‑grant plea in the plaint does not bar relief if the facts and issues alerted the parties, and evidence was presented (!) (!) . - A plea of limitation bars mandatory injunction when the wrongful act occurred in 1994 and the suit was filed in 2009, but this finding was already accepted below (!) (!) . - The appeal court allowed the appeal and declared the plaintiff entitled to the full pathway relief under the principle of lost grant (!) (!) .
1. An interesting question arises for consideration in this appeal. At the time of admission, the following substantial questions of law were formulated for consideration.
1) When the owners of adjoining properties lay out a pathway between their lands by providing portions of their respective lands for forming the same and its remains in use for more than 20 years, can any of them be permitted to obstruct or close the portion of the pathway formed in his property?
2) Is not the owner of a property entitled to claim the right of prescriptive easement over the others property when two adjoining land owners have formed a pathway between their properties by dedicating parts of properties of both and the pathway has been in use for a period of more than 20 years?
3) Are the trial court and appellate court justified in refusing to the prayer for declaration and injunction with regard to the portion of plaint schedule item No.2 having a length of 114 feet for the reason that the plaintiff also has a right over it?
4) Whether the finding of the appellate court that the prayer for mandatory injunction to remove the Kayyala is time barred is correct, in view of the fact that the earlier suit for the same relief was withdrawn with liberty to file a fresh suit?
2. The facts fall within a narrow compass. The plaint item No.1 property belongs to the plaintiff and plaint item No.2 is a pathway. Plaint item Nos.3 and 4 belong to the defendants. As per the allegations in the plaint, pathway scheduled as item No.2 starts from Ramapuram-Manathoor road and runs in between plaint item Nos.3 and 4 and finally it reaches the property of the plaintiff. It is claimed that that is the only means of access to the property of the plaintiff and he has been enjoying the pathway for more than 20 years. The details of the pathway could be discernible from the schedule to the plaint. The plaintiff claimed right of easement over the pathway and also sought for a decree directing the respondents-defendants to remove the obstructions caused to the pathway.
3. The defendants resisted the suit. It is contended that the plaintiff is having no property described as item No.1 in his possession. It is also contended that the description of plaint item No.2 was not correct and there is no pathway as claimed by the plaintiff. It is further pointed out that the plaintiff has other means of access to his property. Further contention was that there is an edavazhy starting from Ramapuram-Manathoor road and that is being used by the plaintiff.
4. On the basis of the above pleadings, issues were raised and the parties went to trial. The evidence consists of the testimony of PWs 1 to 5 and the documents marked as Exts.A1 to A7 from the side of the plaintiff. The defendants examined DW1 and Exts.C1 and C1(a) are also marked.
5. Both the courts below found the existence of pathway as alleged by the plaintiff and which was used by the plaintiff. Further the courts below found that the item No.2 pathway runs through the properties of the defendants till a rocky area and therefore held that plaintiff is entitled to relief in respect of that portion. However, beyond that portion, it was found by the courts below, on an admission made by the plaintiff as PW1, that rest of the pathway over which right is claimed was formed by taking portion of the plaintiff's property and also portion of the property of the 1st defendant and therefore it could not be said that the pathway is a servient tenement or in other words, the courts below came to the conclusion that the claim of pathway beyond rocky area does not satisfy the ingredients of Section 15 of the Indian Easements Act and therefore declined to grant relief to the plaintiff. The suit to that extent was dismissed which was confirmed in appeal.
6. Sri.K. Gopalakrishna Kurup, learned counsel appearing for the appellant assails the findings of the courts below on several grounds. It was pointed out by him that even assuming th
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