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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.M. BABU, J.
Reghuprasad S/o N. Madhavan Nair – Appellant
Versus
M. Raghunathan S/o M.P. Sivasankaran Nair – Respondent
RSA No. 686 of 2016
Decided On : 24-10-2019
Indian Easements Act - Sec. 15 -Easement by grant-Easement by necessity- Separate and distinct rights- No one can have a dual easement in the same servient tenement- The holder of an easement by grant cannot acquire an easement by prescription unless he abandons the former right- One cannot take an easement by prescription without dropping the easement by grant 20 years ago.
Statement of facts:
The suit was for perpetual injunction. The trial court dismissed it. In appeal, the learned district judge decreed the suit in part. The defendant is in second appeal.
Finding of the court:
An easement by grant and an easement by prescription are separate and distinct rights. No one can have a dual easement in the same servient tenement. The easement by grant is and has been the source of the right for the entry of Madhavan Nair or anybody under him into the B schedule pathway. When that be so, there can be no user of it as of right to prescribe an easement under Sec. 15 of the Indian Easements Act. The holder of an easement by grant cannot acquire an easement by prescription unless he abandons the former right. There is no such case for the defendant. He cannot simply contend for an easement by prescription for his father unless he pleads that the right of way by grant was abandoned and the user as of right was started. No such plea is raised. One cannot take an easement by prescription without dropping the easement by grant 20 years ago. The easement by prescription pleaded by the defendant is a baseless plea.
Result: Dismissed.
Certainly. Based on the provided legal document, here are the key points summarized:
The dispute between the parties involved the use of a pathway designated as the B schedule pathway. The plaintiffs sought an injunction to prevent the defendant from entering the pathway, but the court held that the defendant, being the son of Madhavan Nair, had a right to use the pathway to access his father's house on the east side of the property (!) .
The trial court dismissed the suit, but on appeal, the appellate court partially decreed the suit, leading to the defendant filing a second appeal (!) .
The property was originally owned by a single holder and was divided between Madhavan Nair and Radha under a will. Radha later sold her property to the plaintiffs, which included the pathway (the B schedule pathway) as part of the sale, subject to the easement by grant enjoyed by Madhavan Nair (!) (!) .
The plaintiffs contended that the B schedule pathway was part of the property sold to them and that the easement by grant was recognized in the sale deed. The defendant's claim to an easement by prescription was contested, and the court found that such a claim was baseless because the easement by grant was the established right, and no abandonment of that right was proven (!) (!) .
The court clarified that easements by grant and easements by prescription are distinct rights. A person holding an easement by grant cannot acquire an easement by prescription unless the original easement is abandoned. Since no such abandonment was demonstrated, the claim for easement by prescription was dismissed (!) (!) .
The appellate court's decision to allow the defendant to use the pathway for access was upheld, and it was held that the plaintiffs' right to reconstruct or close the opening in the boundary wall did not affect the defendant's right of access under the easement by grant (!) (!) .
The second appeal was dismissed, with the court ruling that the defendant's claim for easement by prescription was unfounded and that the rights established by the easement by grant remained valid. The court also noted that the relief granted by the lower court was within the scope of the original pleadings, and no additional relief was granted beyond that (!) (!) .
Costs were not taxed against the defendant, and the appeal was dismissed (!) .
Please let me know if you need further analysis or specific legal advice regarding this case.
ORDER :
1. The suit was for perpetual injunction. The trial court dismissed it. In appeal, the learned district judge decreed the suit in part. The defendant is in second appeal.
2. Heard Sri. S.M. Prem, the learned counsel for the defendant and Sri. S.V. Balakrishna Iyer, the learned senior counsel for the plaintiffs.
3. The property owned by the plaintiffs and the property owned by the defendant's father Madhavan Nair lie adjacent. Those properties were one holding owned by one A.V. Raghava Warrier. He executed Ext A3 will to bequeath his property to Madhavan Nair, his son, and Radha, his adopted daughter. The land was perpendicularly divided into two unequal parts and the land on the extreme east was bequeathed to Madhavan Nair and the rest to Radha. These are admitted facts.
4. The plaint A schedule property which was part of the land bequeathed to Radha was sold by her to the plaintiffs in 1988 under Ext A1 sale deed. The plaint B schedule property is a pathway which starts from the public way on the west and culminates in the property on the east which Madhavan Nair received under Ext A3 will. The B schedule pathway ran through the property of Radha when she was holding it. Madhavan Nair was given a right under Ext A3 will to use the plaint B schedule pathway for access to his property on the east. It is an easement by grant. The portions of the property held by Radha after the sale of the plaint A schedule property came to the hands of Madhavan Nair. These are also admitted facts.
5. The plaintiffs contended that the B schedule pathway is part of the A schedule property. It must be so. Ext A1 recites the sale of the plaint A schedule property to the plaintiffs inclusive of the B schedule pathway. The sale of the A schedule property including the B schedule pathway to the plaintiffs by Radha was subject to the easement by grant enjoyed by Madhavan Nair. Ext A1 specifically recites so. The defendant who contends for easement under his father cannot dispute the title of the servient owner to the servient heritage. The B schedule pathway is indeed a part of the A schedule property.
6. The relationship of the parties went strained on account of their dispute on the user of the B schedule pathway. Therefore the plaintiffs filed the suit for a decree of injunction. Even entry of the defendant into the B schedule pathway was sought to be prevented. His entry cannot be prevented since as the son of Madhavan Nair he has the right to use the pathway to go to his father's house which is situated in the property on the east. The trial court dismissed the suit upholding the easement by prescription claimed by the defendant under his father. The appellate court interfered with the said finding and negatived the claim of easement by prescription.
7. Admittedly a compound wall exists on the southern boundary of the B schedule pathway. There is an opening in the said compound wall. The appellate court accepted the evidence adduced on the side of the defendant that the opening was in existence for over 25 years. The easement by prescription claimed by the defendant under his father was found against by the learned appellate judge. The learned judge found that the defendant and his father could use the opening in the compound wall to enter the property on the southern side of the pathway only because of the permission given by the plaintiffs and not as of right. This finding is assailed in the second appeal.
8. The decree granted by the learned district judge reads as follows:
(b) Suit seeking to restrain defendant and his men from using plaint B schedule pathway is, however, dismissed.
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