Easement rights under grant can persist despite the absence of explicit recitals in subsequent documents as long as statutory conditions are satisfied.

JUDGMENT

The appellant is the defendant in a suit for injunction.

2. Originally the property belonged to one Meenakshi Amma, daughter, Thankamma and her children by virtue of partition deed in the year 1953. In the said partition deed, a right of way was provided to sharers 1 and 2. The plaintiff purchased the property by Ext. A1 from one of the sharers. The plaintiff is the daughter of one of the sharers. The defendant purchased the property from one of the assignees from the sharers by two registered documents in the year 1995 and 2004 respectively. The property was purchased from one of the assignees of the sharers who derived the title over the property by a Sale Deed in the year 1990. The plaintiff instituted the suit on the assertion that the defendant had no right over the pathway. According to the plaintiff, the entry into the defendant’s property is through the northern side.

2.1. The defendant entered appearance and resisted the suit and contended that the right of the sharers has been set apart in the partition deed and that the allottees of schedules 1 and 4 had the right to use the way through the eastern side of the property in Sy. No. 5411 starting from the southern road and ending in the south-east corner of the property included in schedule no. 4 and nobody should make any obstruction to the said pathway. It was also stated that, during the passage of time, the property was converted into a public way and that was vested with the Kollam Corporation and, in fact, had concreted the pathway in question.

2.2. On behalf of the plaintiff, Exts. A1 and A2 documents were produced and PW1 and PW2 were examined. On behalf of the defendant, Exts. B1 to B4 were produced and DW1 and DW2 were examined. Exts. C1, C2 and C3 respectively are the Mahazar, Report and Plan prepared by the Advocate Commissioner.

2.3. The Trial Court, on appreciation of oral and documentary evidence, came to the conclusion that the plaintiff is entitled to succeed and that the defendant failed to establish the existence of a pathway in Sy. No. 5411 and accordingly, decreed the suit. Aggrieved, the defendant preferred A.S. No. 1 of 2009 before the III Addl. District Court, Kollam which was dismissed on 11.11.2010. Hence, the present appeal.

3. Heard Sri. Ajith Viswanathan, learned Counsel appearing for the appellant. Though this Court while admitting the appeal on 03.02.2012, ordered notice to the respondent and notice was served on the respondent and was represented through an Advocate, the learned Counsel appearing on behalf of the respondent filed relinquishment memo dated 10.02.2021 and 22.02.2021 stating that they have relinquished the Vakalath. Thereafter, no alternate arrangements have been seen made by the respondent leading to a presumption that she has no objection in this Court proceeding with the matter without hearing her.

4. On 03.02.2012, this Court framed the substantial question of law as follows;

“Whether the courts below are right in granting a decree against the defendant when the defendant established his right of way by grant as evidenced by Ext. B1 over a passage allotted to the predecessor in interest of the defendant through the passage when both parties are claiming title to their respective plots, merely on the ground that subsequent documents do not contain the same recitals contained in Ext. B1 especially when there is no negative covenant preventing the assignee from using the passage de scribed in the parent document?”

5. The learned Counsel for the appellant pointed out that the finding of the Courts below that the pathway in question has not been identified by the Commissioner is per se wrong. A reading of Ext. B1, the basic title deed to show that the allottees of item 1 and 4 had specifically conferred wit