J U D G M E N T

The defendants in a suit for declaration of prescriptive easement right of way are the appellants. The suit, though dismissed by the trial court, was decreed in appeal.

2. Plaint schedule item No.1 property belongs to the plaintiff. On the immediate eastern side of the plaintiff's property is the property of the first defendant. On the southern side of the property of the first defendant is the property of the second defendant. On the eastern side of the defendants' property lies the National Highway 47. The suit is filed claiming prescriptive easement right of way through the property of the defendants for access towards the eastern highway.

3. The defendants denied the claim. It was contended that the plaintiff has access to the highway from the southern and northern sides of his property.

4. The trial court held against the plaintiff's case of prescriptive right. The first appellate court on appreciating the evidence held that the plaintiff has established a prescriptive right of way. It was declared that the plaintiff is entitled for a right of way having an average width of three feet through the defendants' property. It is aggrieved thereby that this Regular Second Appeal has been filed.

5. Though various contentions, on the merits of the claim by the plaintiff, have been urged in the memorandum of appeal, the appellants confine their claim for confining the easement to a portion of the defendants' property which would be least onerous to them.

6. Heard learned counsel Sri.Azad Babu on behalf of the appellants - defendants and Sri.Hariharaputhran on behalf of the respondent-plaintiff on the following substantial question of law:-

In terms of Section 22 of the Indian Easement Act, is not the servient owner entitled to seek for confining the exercise of easement to a determinate part of the servient which would be least onerous to him ?

7. The learned counsel for the appellants drew my attention to Ext.C3 sketch to impress regarding the lie of the properties. A perusal of the same shows that the way claimed by the plaintiff is along the southern boundary of the first defendant's property leading into the property of the second defendant and runs through the property of the second defendant to the south of a well situated in his property. There is a small extent of property of the second defendant remaining on the north of the well. The extent of the said portion is not borne out. The appellants claim that the well does not exist now and that the way may be shifted towards the northern extremity of the property of the second defendant. They rely on Section 22 of the Easements Act in support of that plea. Relying on the judgment of this Court in Sathyavathi K.N. v. Sarojini [2011 (4) KHC 805], the learned counsel for the respondent would contend that, a prayer for confinement of easement to a particular portion of the servient tenement should have been urged before the trial court or at least before the first appellate court. Such prayer cannot be made at the second appellate stage, it is contended. The case of the appellants before the trial court and the appellate court was, total denial of the easement. Therefore, the prayer for confinement of easement could not be entertained by this Court, it is contended.

8. Section 22 of the Indian Easement Act reads thus:-

“Exercise of easement. Confinement of exercise of easement.⸺The dominant owner must exercise his right in the mode which is least onerous to the servient owner, and, when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined.”

The Section postulates-(a) the exercise of easement must be in the manner which is least onerous to the servient owner; and (b) If the exercise of the right can be confined to a determinate part of the servient heritage, it can be so confined at the request of the servient owner provide