IMPORTANT POINT
The servient owner may seek to shift an easement to a more convenient part of their property without detriment to the dominant owner, as per Section 22 of the Indian Easement Act.

JUDGMENT

RSA No.1334/2011

1. The question involved in this Regular Second Appeal is whether the Servient owner has right to seek for shifting of easement to another part of the Servient Heritage for the convenient use of the Servient Heritage, in view of Section 22 of the Indian Easement Act, 1882 .

2. The appellant is the 1 ^st plaintiff in the suit. The second plaintiff is her son. They are the owners of the Servient Heritage. The defendants are the owners of Dominant Heritage, having right of way through Servient Heritage from the main road situated on the eastern boundary of Servient Heritage. The Dominant heritage is having an extent of 10 cents which is situated in the middle of Servient Heritage having an extent of 1.15 acres. Dominant Heritage is surrounded by Servient Heritage on its eastern, western and southern sides. Servient Heritage is assigned to the predecessor of the defendants - Kurumba from the plaintiffs by way of Kudikdappu. Excluding Dominant Heritage, the Servient Heritage has 1.05 acres of land, which is the plaint A schedule property. The way to the Dominant Heritage is through the middle of the eastern part of the Servient Heritage. According to the plaintiffs, the width of the way is three feet, and according to the defendants, it is four feet. The plaintiffs filed the suit to shift the way to the northern extremity of the Servient Heritage. A Way having a width of 3 feet in the northern extremity of the Servient Heritage is included in the Plaint B Schedule.

3. The suit was one for declaration and permanent prohibitory injunction and compensation. The prayers are to declare that plaint B schedule property is to be used by the defendants for their ingress and egress into their property, to restrain the defendants from trespassing into plaint A schedule property and committing any act of waste therein and to direct the defendants to pay Rs.500/- by way of damages.

4. The Defendants contended that the plaintiffs have no right to shift the pathway into the plaint B schedule pathway.

5. The Trial Court dismissed the suit finding that the plaintiffs have no right to shift the existing pathway into any other pathway because the defendants have got easement right of way through the existing pathway as per S.13 of the Easement Act. The prohibitory injunction and the damages sought for were denied, finding that there is no proof in support of the same from the part of the plaintiffs.

6. The plaintiffs filed an Appeal before the First Appellate Court challenging the judgment and decree of the Trial Court. The First Appellate Court dismissed the appeal confirming the judgment and decree of the Trial Court finding that plaintiff do not have any right to shift the existing pathway to plaint B schedule pathway which is prohibited by S.23 of the Easement Act.

7. This Court had issued notice before admission on 24.02.2012 to the respondents. In spite of serving notice, the respondents did not appear. Thereafter, this court considered the matter for admission on 10.10.2024 and this Court admitted the Regular Second Appeal formulating the Substantial Question of Law. Since the appeal is of the year 2011, notice by Special Messenger was ordered to respondents 1 to 7 dispensing notice to the 8 ^th respondent who is the 2 ^nd plaintiff and son of the appellant/1 ^st plaintiff. Even after serving notice to the respondents again after admission of the Regular Second Appeal the respondents do not choose to appear.

8. Accordingly, I heard the learned Counsel for the appellant Sri. Sreekumar G (Chelur). Since there was no appearance for the respondents, learned counsel for the appellant took me to the question from every angle in order to assist the Court in laying down the law correctly.

9. Since the question involves the interpretation of Section 22 of the Easement Act, Section 22 with its Illustrations is extracted hereunder.

22.Exercise of easement. Confinement of exercise of easement.-

The dominant owner must exercise his