Easement rights granted in an original deed cannot be extinguished by a subsequent property assignment.

J U D G M E N T

This appeal is filed by the defeated plaintiffs in a suit for declaration of title, fixation of boundary, recovery of possession and injunction, against the defendant over the plaint E schedule property. Both courts below have concurrently found against them. In this appeal the appellants confine their claim to the right of way over the E schedule property and therefore request this Court to deal with the right of easement by grant over the E schedule pathway.

2. Brief facts necessary for the disposal of the appeal are as follows:-

By a Partition Deed dated 18.08.1973, the plaintiffs were allotted 1 Acre 24 cents shown as A schedule property in the plaint. Later on 02.02.1988, there was an intestate partition between the sharers to the A schedule property, that is the plaintiffs. Out of 1 Acre 24 cents, 54 cents was sold to one Sivasankara Pillai, as per sale deed dated 10.08.1992. Later, Sivasankara Pillai transferred the property to the defendant on 12.09.1994. The plaintiffs sold 44 cents to the defendant on 05.12.1994. The plaintiffs contended that the remaining property in their possession is 13 cents, which is included in the plaint C schedule. An extent of 15 links of pathway leading to the Madom in the partition deed dated 18.08.1973 is included as the plaint E schedule. The property sold to the defendant on 05.12.1994 is included as D schedule. The plaintiffs further contended that although registered holding left with them is 10 cents, they are also holding excess of 3 cents, thus constituting the C schedule property having an extent of 13 cents, which the defendant is stated to have trespassed upon and is holding in possession. Thus, a suit for declaration of title over C schedule and consequential recovery of possession of 3 cents and a prohibitory injunction over E schedule pathway was sought for. The defendant resisted the claim by contending that the plaintiffs do not have the right over the E schedule pathway inasmuch as when the property was sold by Sivasankara Pillai to the defendant on 12.09.1994, there is no mention regarding the existence of 15 links pathway. It is further contended that as per the original deed of partition the pathway is available till the plaint A schedule property therein and not upto the Madom. On behalf of the plaintiffs, Exts.A1 to A8 documents were produced and PW1 to PW3 were examined. There was no oral and documentary evidence on the side of the defendant. Ext.X1 is the survey plan produced by the Village Officer. Exts.C1 to C3 are the reports and plan submitted by the Advocate Commissioner. The trial court on appreciation of the oral and documentary evidence came to the conclusion that because of the description of the property covered by Ext.A4 document in favour of the defendant and also the report of the Advocate Commissioner, the plaintiffs are not entitled to the relief sought for and accordingly, dismissed the suit. While doing so, the trial court also found that the claim for declaration is not maintainable inasmuch as the plaintiffs failed to prove the extent of property covered under the plaint C schedule property. Aggrieved, the plaintiffs preferred A.S No.22/2010 before the Additional Sub Court, Kollam, and by judgment dated 18.09.2010, the appeal was also dismissed. Hence the present second appeal.

3. On 07.11.2025, this Court admitted the appeal on the following substantial questions of law:-

A. When a covenant in original document is being enjoyed by a party, whether it can be extinguished by a subsequent assigner and whether his evidence contra to original covenant is admissible ?

B. Can an easementary right by grant over a particular property granted in a prior document be reduced or nullifie