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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
Pavizhamma, W/o Sasidharan – Appellant
Versus
Mangalamma, W/o Subramanyan – Respondent
RSA No. 718 of 2023
Decided on : 10-01-2024
Easement by Grant - Property Dispute - Code of Civil Procedure, 1908 - Section 100, Order XLII Rule 1 - 1988 (2) KLT 417, 1988 KHC 461, (2006) 5 SCC 545, 2017 (2) KHC 352, 2021 KHC 670, 2021 (6) KLT 191, 2021 (4) KLJ 892 - The court discussed the essentials of grant and held that easement by grant is a matter of contract between the parties. It also emphasized that the scope of the grant could be determined by the terms of the grant between the parties alone. The court referred to various legal provisions and precedents to establish that the parties are governed by the terms of the grant and not anything else in the matter of easement by grant. It concluded that no substantial question of law arose in the case, and the appeal was dismissed without being admitted.
Fact of the Case:
The plaintiff filed a suit for declaration, mandatory injunction, and permanent prohibitory injunction, claiming a right of easement by grant over a pathway. The defendants contended that no specific way was provided in the partition deed and challenged the suit relief.
Finding of the Court:
The court found that the plaintiff had a right of easement by grant over the pathway as per the partition deed. It decreed the suit in favor of the plaintiff, directing the defendants to remove the soil obstructing the pathway and restraining them from obstructing the plaintiff's usage of the pathway.
Issues: The main issue was whether the plaintiff had a right of easement by grant over the pathway as per the partition deed, and whether the defendants were obstructing the plaintiff's usage of the pathway.
Ratio Decidendi: The court emphasized that easement by grant is a matter of contract between the parties, and the scope of the grant is determined by the terms of the grant between the parties alone. It referred to various legal provisions and precedents to establish the governing principles of easement by grant.
Final Decision: The appeal was found to be meritless, and the same was dismissed without being admitted. All interlocutory applications pending in the appeal were also dismissed.
Section 15 of the relevant Act generally pertains to the extinguishment or modification of easements, or the conditions under which easements can be altered or terminated. It emphasizes that any change to an easement must be carried out in accordance with the terms of the original grant or agreement, or through lawful procedures prescribed by law (!) .
This section also highlights that the rights associated with an easement are subject to the original intentions of the parties and the specific provisions laid out in the grant or relevant legal instruments. Any alteration or extinguishment of an easement requires clear evidence of consent or lawful authority, ensuring that the rights of all parties are protected and that any changes are made within the bounds of the law (!) .
Furthermore, the section underscores that modifications to easements should not adversely affect the reasonable use and enjoyment of the dominant or servient land beyond what was originally intended or agreed upon, unless explicitly permitted by law or mutual agreement (!) .
In summary, Section 15 emphasizes the importance of adhering to procedural and substantive legal requirements when modifying or extinguishing easements, reinforcing the principle that such rights are subject to the terms of the original grant and the lawful procedures for change (!) .
JUDGMENT :
This regular second appeal has been filed under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for short), challenging dismissal of AS No.33/2016 on the files of the Additional District Court-II, Kollam, dated 15.11.2022, arose out of the decree and judgment in OS No.501/2011 on the files of the Additional Munsiff's Court, Kollam, dated 30.11.2015. The appellants herein are the defendants in the above suit. The respondent herein is the plaintiff.
2. Heard the learned counsel for the appellants/defendants on admission.
3. I shall refer the parties in this regular second appeal as 'plaintiff' and 'defendants' for convenience.
4. A suit for declaration, mandatory injunction and permanent prohibitory injunction was filed by the plaintiff. Originally, the plaint 'A' and 'B' schedule properties were purchased jointly by the plaintiff and the first defendant. as per a sale deed. According to the plaintiff, while the plaintiff and the first defendant jointly possessing and enjoying the plaint 'A' and 'B' schedule properties, both of them executed partition deed No.3357/1987 and as per the partition deed, plaint 'A' schedule property settled in favour of the plaintiff and plaint 'B' schedule property settled in favour of the first defendant. Now, the plaintiff has been in possession and enjoyment of plaint 'A' schedule property and the first defendant has been possessing and enjoying plaint 'B' schedule property.
5. According to the plaintiff, plaint 'C' schedule is the pathway where the plaintiff got right of easement by grant as recited in the partition deed and the defendant also is entitled to use the same, now obstructed the same by dumping soil.
6. The defendants filed written statement, inter alia, contending that no specific way was provided in the partition deed, either expressly or impliedly, and therefore, suit relief could not be granted. At the same time, execution of the partition deed was admitted.
7. The court below went on trial on raising necessary issues.
8. On adjudicating the matter, on appreciation of evidence confined to that of PW1 and PW2, Exts. A1 to A2 DW1 and DW2, Exts. B1 to B5, CW1 and CW2 Exts.C1 to C4 series, the learned Munsiff decreed the suit as under:
(a) The plaintiff's right of easement by grant over plaint 'C' schedule way is hereby declared.
(b) The defendants are directed by a decree of mandatory injunction to remove the soil dumped in the 'C' schedule way. Failing which the plaintiff is entitled to remove the same with the costs of the defendants.
(c) The defendants are restrained by a decree of permanent prohibitory injunction from obstructing the plaintiff's usage of 'C' schedule way and from altering the boundaries of 'C' schedule way and from committing any waste therein.”
9. Although appeal was filed before the appellate court, challenging the said verdict, the appellate court also concurred with the finding of the trial court.
10. At the time of admission hearing, the learned counsel for the defendants submitted that Ext.A1 is the partition deed relied on by the plaintiff to assert right of easement by grant over 'C' schedule way and in Ext.A1, either expressly or impliedly, nothing could be gathered to see grant of easement, as contended by the plaintiff. When it was pointed out to the learned counsel as to the grant expressly stated in Ext.A1, as has been reproduced in paragraph No.11 of the trial court judgment, his contention is that the existence of such a way is not all established. He also submitted that the way never used as stated in the title deed.
11. Confining the matter in dispute, according to the plaintiff, he got right of easement by grant over the plaint 'C' schedule way, on the strength of the recitals in Ext.A1 partition deed, admittedly, executed in between the plaintiff and the first defendant. On perusal of the narrations in Ext.A1, as has been reproduced in paragraph
Easement by grant is governed by the terms of the grant between the parties alone, and the scope of the grant is determined by those terms.
(1) Second Appeal – Second appeal cannot be decided on equitable grounds and conditions mentioned in Section 100 read with Order XLII Rule 2 of C.P.C. must be complied to admit and maintain a second ....
The main legal point established in the judgment is the requirement for pleading and proving right of easement by necessity, as well as the significance of an alternative way capable of connecting th....
The central legal point established in the judgment is the interpretation of the evidence and the application of the legal principles, including the provisions of the Easement Act, 1882, to determine....
The duty of the appellate court to decide on applications filed under relevant CPC rules and the requirement for proper assessment of evidence in property disputes.
Establishment of easement rights requires explicit documentation, and mere permissive rights do not confer legal easements; plaintiffs failed to prove their claim.
The existence of a substantial question of law is a prerequisite for the exercise of jurisdiction under Section 100 C.P.C., and the High Court's jurisdiction is confined to entertaining only such app....
The High Court cannot interfere with concurrent findings of fact unless they are perverse; a substantial question of law must be established for a second appeal under CPC.
The court clarified the extent of easement rights under a partition deed and emphasized that courts cannot expand these rights beyond explicit definitions in such deeds.
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