Easements by grant can be created through settlement deeds and are enforceable if established clearly, countering claims of vagueness.

JUDGMENT :

Easwaran S., J.

1. Can an easement by grant be created by a settlement deed is the question which falls for consideration in these appeals. The appellant/plaintiff in O.S. No.422 of 2007 has been non-suited concurrently by the courts below on the ground that the covenant in the deed is vague and unenforceable.

2. The appellant, as plaintiff, instituted O.S. No.422 of 2007 before the Additional Sub Court, Irinjalakuda, seeking a declaration of his right of way created under a settlement deed dated 12.4.1979. The suit for declaration was necessitated because a subsequent assignee from one of the brothers of the plaintiff instituted a suit, O.S. No.568 of 2006, before the Additional Sub Court, Irinjalakuda, seeking for a decree of injunction restraining the appellant herein from trespassing into the plaint schedule property, thereby setting up a claim that, the covenant in the settlement deed is vague and hence unenforceable. Facts leading to the institution of the above-mentioned suits are not under dispute and hence succinctly stated as follows:

2.1. A settlement deed No.940/79, was executed by the father of the plaintiff in favour of the plaintiff and his brothers by allotting separate property to each of them. In the said settlement deed, the A schedule property was allotted to one Vasu, the B schedule property was allotted to one Sivaraman, the C schedule property was allotted to the plaintiff, Somasekharan and the D schedule property was allotted to one Bharathan. It is further stated in the deed that the way which is in existence to access the C schedule property from the D schedule property shall not be obstructed by anyone. Equally so, it is mentioned that the right to take water from the pond, in the plaint A schedule, shall not be obstructed by the other beneficiaries. The beneficiary of D schedule, namely, Bharathan, one of the brothers of the plaintiff, sold the property to one T.P.Radhakrishnan in the year 1993, who subsequently transferred it to the 1^st respondent in R.S.A. No.1280 of 2016. The assignment was in 2001. Thereafter, in the year 2006, Sri. Balan, the father-in-law of the above 1^st respondent, instituted O.S. No.568 of 2006, being the power of attorney of the 1st respondent, seeking for a decree restraining the defendant/appellant herein from trespassing into the plaint schedule property, transferred by the beneficiary Sri. Bharathan to whom it was allotted as ‘D’ Schedule under the settlement deed dated 12.4.1979. The suit was resisted by the appellant, contending that he has got a right of easement through the D schedule property for accessing the plaint C schedule property. Later, he instituted O.S. No. 422 of 2007, seeking a declaration of his easement right to take water from the pond, as well as the right of access through the D schedule under the settlement deed. The suit was resisted on the ground that the covenant, if any, running along with the land as per the settlement deed, is vague and unenforceable. O.S. No.568 of 2006 was taken as the leading case, and Exts.A1 to A4 were marked on the side of the plaintiff, and PW1 was examined. Exts.B1 and B2 were marked on the side of the defendants, and DW1 to DW4 were examined on the side of the defendants. Exts.C1 to C4 are the reports and plans submitted by the advocate commissioner. The trial court, on appreciation of the pleadings and evidence produced before it, framed the following issues in both suits:

O.S. No.422 of 2007

1) Whether plaint C schedule pathway is identifiable?

2) Whether there is any need for the plaintiff to take water from the pond situated in the plaint B schedule property?

3) Whether plaintiff is entitled to the decl