Easementary rights conferred by partition deed cannot be extinguished by non-user; rights retained despite property title transfer.

COMMON JUDGMENT

These two appeals raise a common question of law and are hence being considered together and disposed of by this common judgment.

2. O.S.No.360/2007 and O.S.No.363/2007 were tried jointly. The plaintiff in O.S.No.360/2007 is one Raghavan, and the 1st plaintiff in O.S.No.363/2007 is one Ramakrishnan. Both plaintiffs are brothers. The dispute raised in the two suits is regarding the entitlement to draw water from a well, which is situated in the plaint B schedule property covered by Ext.A1 deed of partition, executed in the year 1970. The plaintiff in O.S.No.360/2007 contended that the right reserved to the parties in the partition deed to draw water from the well can only be a licence and not an easement. Other sharers under Ext.A1 had transferred the right title and interest over the properties covered by Ext.A1 in favour of the plaintiff in O.S No.360/2007 by Exts.A1 and A2. Thus, the holder of the property, in which the well was situated having transferred his right title and interest, it is contended that the right of the plaintiff in O.S.No.363/2007 to draw water from the well ceases. It is also contended that Shri.Ramakrishnan had constructed two separate wells in his property and that he was using the same and therefore, by virtue of the non user of the well, the right to draw water from the well commonly set apart ceased. In support of his contention, the report of the Advocate Commissioner is relied on. The Trial Court on consideration of the oral and documentary evidence, found that going by the recitals in Ext.A1, the entitlement to draw water from the well is an easementary right and runs along with the land and therefore dismissed O.S.No.360/2007 and decreed O.S.No.363/2007. Aggrieved by the judgment and decree of the Trial Court, A.S.Nos.86/2009 and 87/2009 were preferred before the Sub Court, Perumbavoor. Both the appeals were dismissed by the First Appellate Court against which the present appeal is preferred.

3. When the appeal was admitted to file, the following substantial questions of law were framed:

(i) What is the scope and extent of the stipulation contained in Ext.A1?

(ii) Whether the Trial Court as well as the First Appellate Court are justified in holding that the easement right granted to the parties as per Ext.A1 to draw water from the well situated in plaint B schedule property and to use plaint C schedule way will not be extinguished by non- user?

4. Heard Shri.S.Vinod Bhat, the learned counsel appearing for the appellants assisted by Shri.Legith T. Kottakkal, and Smt.A Meena, the learned counsel appearing for the respondents.

5. The learned counsel appearing for the appellants, placing reliance on the report of the Advocate Commissioner, pointed out that there was clear evidence before the Trial Court regarding the non-user of the well. The claim of the plaintiffs in O.S.No.363/2007 for an easementary right is completely misplaced, since the right to draw water from the well cannot be construed as an easementary right. In support of his contention relied on the decision of the Allahabad High Court inChheddu Singh v. Kewal and others [AIR 1963 Allahabad 122] andHar Dayal and others v. Chotai and others [AIR 1963 Allahabad 32] and the decision of the Bombay High Court in Macario Antonio Francisco De...v. Alex Fred D’Souza and others [ 1993(1) BomCR 465 ].

6. Per contra, Smt.A. Meena, the learned counsel appearing for the respondents, pointed out that there is a clear recital in Ext.A1, which shows that what is conferred upon the parties is a right to draw water from the well and under no stretch of ima