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2024 Supreme(Online)(Mad) 79296
IN THE HIGH COURT OF JUDICATURE AT MADRAS
K. Rajasekar, J
Padma – Appellant
Versus
Manickam – Respondent
Second Appeal No.1275 of 2012
For the Appellants/Petitioners: R. Ezhilarasan
For the Respondents: V. Nicholas
An easement acquired by express grant is governed by the terms of the contract and constitutes a permanent right, independent of the provisions governing easements of necessity, and cannot be unilaterally extinguished by the servient owner.
Headnote:(A) Indian Easements Act - Section 8 and 9 - Easement of grant - Suit for declaration and injunction - Plaintiff acquired land with specific grant to use cart track - Defendants contested existence of track - Held, easement by grant is a matter of contract and does not depend on absolute necessity - Once granted, it cannot be unilaterally withdrawn - Lower courts failed to appreciate the documentary evidence regarding the grant and the physical existence of the track as per Commissioner’s report. (Paras 13, 14, 15, 17, 18)
Facts of the case:
The plaintiff sought a declaration and injunction to use a cart track to reach her land, citing rights granted in her 1987 sale deed. The defendants, owners of the neighboring land, denied the existence of the track, claiming it was merely rocky terrain. The trial and appellate courts dismissed the suit, failing to recognize the contractual nature of the easement by grant.
Findings of Court:
The High Court held that the lower courts misapplied principles of easement and misread evidence contained in the Commissioner’s reports. Since the right was acquired by grant, it was a permanent arrangement not contingent upon absolute necessity.
Issues: Whether the plaintiff is entitled to the use of the cart track based on the terms stipulated in the sale deed and whether the lower courts erred in law by ignoring the existence of the easement by grant.
Ratio Decidendi: Easement by grant is governed exclusively by the terms of the contract between parties. It is not limited to or extinguished by provisions applicable to easements of necessity (Section 13 and 41 of the Easements Act). Existing contractual rights burden the servient tenement permanently and cannot be revoked without consent.
Result: Appeal allowed in part; plaintiff granted declaration and permanent injunction as per the Advocate Commissioner’s report.
| Table of Content |
|---|
| 1. summary of trial court findings and nature of the dispute regarding cart track easement. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. high court's jurisdiction under section 100 cpc to review concurrent findings in light of misinterpretation of law. (Para 7 , 8) |
| 3. establishing the nature of easement by grant as a contractual right rather than an easement of necessity. (Para 9 , 10 , 11 , 12 , 13 , 14) |
| 4. scope of easement by grant, rejection of section 41 applicability, and final relief based on commissioner report. (Para 15 , 16 , 17 , 18 , 19 , 20) |
JUDGMENT
This Second Appeal has been filed by the plaintiff challenging the concurrent Judgment and decree of the Trial Court and the Lower Appellate Court, rejecting the suit for relief of declaration and injunction filed by the appellant herein.
2. For the sake of convenience, the parties are referred as per their ranking in the Trial Court.
3. The plaintiff had purchased the land situated in the Southern side of the defendants' land from the defendants' vendor, as per Sale deed dated 18.02.1987. In the Sale deed, the plaintiff’s vendor has granted permission to use the cart track situated on the Western side corner of the defendant's land, to reach their land shown as A, B, C, D in the Rough Plan. This cart track was being used by the plaintiff for more than 40 years. The first defendant now entered in to an Agreement of Sale with the second defendant. Due to previous enmity, on instigation of defendant No.2, defendant No.1 started preventing the plaintiff from using the cart track. The plaintiff further stated in the plaint that he is having a right based on easementary right of necessity and prescription thereby, filed the suit praying for declaration that he is entitled to use the land of the defendant and consequential injunction.
4. The defendants' filed written statement and contended that there is no cart track in existence as stated in the Sale deed, dated 18.02.1987 executed in favour of the plaintiff. The defendants' have purchased the land situated on the Northern side of the plaintiff’s land, as per Sale deed dated 26.04.2004 and the entire land was used for agriculture purpose. The portion of land claimed to be a cart track is filled with rocks, bushes and stones. The claim is being made by suppressing the fact that the alleged cart track is running on the defendants' land and by obtaining interim order, the plaintiff was trying to lay the cart track in the plaintiff’s land.
5. Based on the pleadings made by both parties, the trial Court has framed the following issues.
“1. Whether the plaintiff is entitled to relief as claimed in the suit?
2. Whether the plaintiff is entitled for permanent injunction as prayed for in the suit?
3. To what other relief the plaintiff is entitled for?”
6. After recording the evidence of both sides, the trial Court rejected the suit. The Appellate Court has also confirmed the same by dismissing the appeal. Aggrieved over the same, the present Second Appeal has been filed by the plaintiff.
7. At the time of admission, this Court has framed the following substantial question of law?
“1. Whether the subsequent sale by the common vendor, when he had given a right of cart track prior to that sale of the 1st defendant by way of Ex.A1 to the plaintiff is bound to liable?
2. Has not the Courts below committed a grave error in holding that the vendor had no right to give a right of cart track, when the common vendor has given the right of cart track in his land to the plaintiff in the sale deed viz., Ex.A1?
3. Has not the Courts below committed an error that not granting the relief as per Ex.A1 the plaintiff has been granted the right of cart track?
4. Whether the Courts below correct in law in holding that the plaintiff has not proved that except the suit cart track no other cart track to reach his land, when the plaintiff has granted the right of cart track by common vendor in his land?”
8. The scope of interfering with the concurrent find
