IMPORTANT POINTS
(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 appeal.
(2) Easement by grant – Limit of easement acquired by grant is controlled only by terms of contract.

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:—

“14. In the result, suit decreed as follows:

(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 rep