Point of Law: If a person acquires a grant by express or by necessary implication, it will usually be on payment and there is no reason why such an easement which is paid for should be extinguished for reason that acquirer did not use it for a time period.

JUDGMENT :

K. BABU, J.

1. This Regular Second Appeal emanates from the decree and judgment dated 13.07.2006 passed by the Additional Munsiff, Ernakulam in O.S. No. 1208/2003, which was partly set aside by the Additional District Court, Ernakulam in A.S. No. 110/2007. The defendant is in appeal before this Court under Section 100 of the Code of Civil Procedure, 1908.

2. Material facts in a nutshell are as follows:

2.1. The plaintiffs purchased plaint ‘A’ schedule property, having an extent of 2.370 cents of property with 10 links wide pathway to access the main road on the north, in Survey No. 288/2 of Poonithura Village as per sale-deed bearing No. 4075/1990. There was no compound wall on its eastern side at the time of purchase of the property. The plaintiffs constructed a compound wall on the eastern side and put up a gate having 5 feet width on the northeastern corner. The defendant is residing on the eastern side of the plaint ‘A’ schedule property, which he purchased in 1997 as per sale-deed No. 3246/1997. He constructed a building therein. In 2002, the defendant extended the compound wall upwards. In 2003, the defendant encroached upon the pathway provided to the plaintiffs as per Ext.A1 sale-deed and constructed concrete steps. The defendant has no right to trespass upon any portion of the pathway. The defendant trespassed upon 25 sq. links of property on the ‘B’ schedule.

3. The defendant resisted the claim of the plaintiffs. At the time of purchase of the property itself, there was a building on it. He made no additional construction after the purchase of the property. In 1997, itself the iron gate was fixed on the northwestern corner of plaint ‘A’ schedule property. The defendant has not made any unauthorised construction as pleaded. He has not trespassed upon the pathway. The 10 links wide way described in the plaint is a common pathway. The plaintiffs have no title or preferential claim over the pathway.

4. The evidence, in this case, consists of the oral evidence of PWs. 1 and 2 and DWs. 1 and 2, and Ext.A1 marked on the side of the plaintiffs and Ext.B1 marked on the side of the defendant. Exhibit C1 to C4 were also marked as Court Exhibits.

5. The Trial Court held that the plaintiffs failed to plead the nature of right over the pathway and that the right he acquired over the pathway was extinguished under Section 38 of the Easements Act due to non-user. Based on these findings, the Trial Court dismissed the suit.

6. The First Appellate Court held that the finding of the Trial Court that the right of the plaintiffs extinguished as per Section 38 of the Easements Act is against the statutory provision. The Appellate Court further found that the plaintiffs had obtained 10 links wide pathway with an entry of 14 links to ‘A’ schedule property. The First Appellate Court further found that the defendant had encroached upon 25 sq. links on the pathway, which is specifically described in the plaint as ‘B’ schedule.

7. After hearing both sides, this Court reformulated the substantial questions of law as follows:

(i) Is it not necessary for the plaintiffs to plead in the plaint with regard to the nature of the right claimed by them over plaint ‘B’ schedule property, especially when the right claimed appears to be the right of easement?

(ii) Has not the lower appellate Court erred in holding that the right acquired by the plaintiff has not extinguished due to non-user?

8. Heard Sri. Philip T. Varghese, the learned counsel appearing for the appellants and Sri. K.R. Vinod, the learned counsel appearing for the respondents/plaintiffs.

9. The dispute centres around the question whether the right of the plaintiffs over the pathway extinguished due to non-user of the same.

10. The plaintiffs are, admittedly, the owners in possession of plaint ‘A’ schedule property. The defendant is the owner of the property lying on the east of ‘A’ schedule property. The pathway described in the plaint is admittedly a common way that runs in the north-south di