IMPORTANT POINT
Right to Pathway – Easement by grant can either be express or implied – Limit of easement acquired by grant is controlled only by terms of contract.

JUDGMENT

A. Badharudeen, J.—This original petition filed under Article 227 of the Constitution of India, is directed against Ext.P5 order in C.M.A.No.6/2018 dated 28.2.2020 on the file of the Sub Judge, Attingal. The said Civil Miscellaneous Appeal arose out of order in I.A.No.1922/2016 in O.S.No.472/2016 on the file of the Munsiff Court, Attingal. The appellants in the above CMA are the defendants in the above suit and the respondents in I.A.No.1922/2016.

2. I would like to refer the parties in this appeal as ‘plaintiff’ and ‘defendents’ for easy discussion and convenience.

3. O.S.472/2016 was filed by the plaintiffs seeking declaration of easement by grant in respect of plaint D schedule pathway for the beneficial enjoyment of Plaint A schedule property owned by the plaintiff. Along with this suit, I.A.No.1922/2016 also was filed seeking temporary injunction restraining the defendants from causing further obstruction to D Schedule pathway and also from causing any inconvenience to the peaceful enjoyment of the D Schedule pathway, till the disposal of the suit.

4. The learned Munsiff anxiously considered the interim application. On finding prima facie case in favour of the plaintiff coupled with other requirements of ‘balance of convenience’ and ‘irreparable injury’, the learned Munsiff granted interim injunction, whereby the defendants are restrained from causing any obstruction to the plaintiffs in using Plaint D Schedule pathway, till the disposal of the suit.

5. Ext.P4 is the interim order passed by the learned Munsiff in I.A.No.1922/2016 dated 23.9.2017. Ext.P4 was challenged by way of appeal to the Sub Court, Attingal and the learned Sub Judge also dismissed the appeal confirming the interim injunction as per Ext.P5 order.

6. The defendants, who are aggrieved by the grant of interim injunction are now before this Court. According to them, Exts.P4 and P5 are manifestly and apparently erroneous.

7. It is submitted by the learned Counsel for the petitioners/defendants that the claim of the plaintiff over plaint D schedule pathway was based on the grant made as per Ext.A2 and the said right is available from southern road upto southern extremity of Plaint B Schedule therein and the claim of the plaintiff for right of way based on the said grant through the plaint B Schedule property up to the northern extremity of Plaint A schedule property is unsustainable. It is contended further that the courts below failed to take note of these aspects and wrongly granted interim injunction in relation to Plaint D Schedule property. It is contended further that easement by grant provided in Ext.A2 document would not automatically extent to the subsequent purchaser unless expressly granted by the said owner, in the subsequent partition deed.

8. On the otherhand, learned Counsel for the plaintiff/respondent herein supported Exts.P4 and P5. According to the learned Counsel, easment right granted over D Schedule by way of grant was asserted by the plaintiff and the Commissioner located existence of D Schedule as contended by the plaintiff. Accordingly, the courts below passed Exts.P4 and P5 orders, to preserve the subject matter till the disposal of the suit and to protect use of the said pathway till then.

9. Coming to the crux of this dispute, it has to be held that the case of the plaintiff is confined to right of easement by grant through the eastern side of A and C Schedule property.

10. On reading of the recitals in A2, it is crystal clear that 5 links pathway has been provided through the eastern side of A and C Schedule properties as per Ext.A2 for the common use of A and B Schedule property owners.

11. So going by Ext.A2, the contentions raised by the plaintiff as to easement by grant over D schedule, would be seen prima facie. In such situation, refusal to grant interim injunction would cause irrperable injury to the plaintiff and thus balance of convenience also is in favour of the plaintiff. However, the contentions raised by th