No Easement by 'Immemorial User' for General Public, Doctrine of Lost Grant Requires Specific Grantee: Karnataka HC

Bengaluru: The Karnataka High Court, in a significant ruling on property law, has held that an easementary right of way cannot be claimed on the basis of "immemorial user" for the benefit of the general public or a fluctuating body of persons. Upholding the reversal of a trial court decree, the bench of Justice M.G.S. Kamal clarified that the doctrine of lost grant, a legal presumption of a lawful origin for a long-enjoyed right, cannot be invoked in favor of an unascertained group.

The Court dismissed a Regular Second Appeal filed by the legal heirs of Sri Yallappa Mallad, who had challenged the First Appellate Court's decision to reject their claim for an easementary right over a neighboring property.

---

Background of the Dispute

The case originated from a suit (O.S. No. 89/2003) filed by the plaintiffs, who owned agricultural land in Mareguddi village. They claimed a right of way over a boundary strip, described as "ABC" in their plaint sketch, located on the defendants' land. The plaintiffs asserted that they, along with other villagers and the public at large, had been using this strip as a cart way for over 50 years, thus acquiring a right through "immemorial user."

The Trial Court had initially sided with the plaintiffs, granting them a decree. However, the First Appellate Court overturned this decision, noting inconsistencies in the plaintiffs' claims, particularly their own applications (Exs.P8 & P9) to local authorities requesting the formation of a new road, which suggested the claimed path did not exist.

---

Arguments Before the High Court

Appellants' (Original Plaintiffs) Contentions:

They had an established right of way through continuous and peaceful use for over 50 years.

The First Appellate Court misinterpreted their applications for a new road (Exs.P8 & P9), which did not amount to an admission of the non-existence of the old path.

The Court should apply the doctrine of lost grant, which presumes a legal origin for a right that has been enjoyed for a very long time.

Respondents' (Original Defendants) Contentions:

The claimed cart way never existed.

The construction of the Ghataprabha Left Bank Canal (GLBC) in 1960 made the claimed route impassable until a pool was built in 2000, directly contradicting the "immemorial user" plea.

The plaintiffs had an alternative access route.

Crucially, they argued that the doctrine of lost grant cannot be applied to benefit an undefined and fluctuating body of persons like "the inhabitants of a village" or "the public at large."

---

Court's Analysis and Application of Legal Principles

Justice M.G.S. Kamal conducted a detailed analysis of the doctrine of lost grant, referencing several landmark judgments, including the Supreme Court's decisions in Raja Braja Sundar Deb vs. Moni Behara and M. Siddiq (dead) Through Legal Representatives vs. Mahant Suresh Das .

The Court extracted key principles governing the doctrine:

1. Legal Origin: The right must have had a legal origin. For a grant to be presumed, there must have been a capable grantor and a capable grantee.

2. Defined Grantee: A fluctuating and unascertained body of persons, such as the inhabitants of a village or the general public, cannot be a capable grantee.

3. No Convenience Easement: The right of easement cannot be granted for mere convenience, especially when alternative access is available.

Applying these principles, the High Court observed:

"The very premise on which the right of way being claimed is that the 'ABC' hedge/strip shown in the hand sketch has been used as a cart way not only by the plaintiffs but also by rest of land owners and public at large... plaintiffs seem to be espousing the cause of general public which is an un-ascertainable group of people and as held in the case of Asrab Ulla (supra) as well as Raja Braja Sundar Deb, an easementary right on the principles of presumption of lost grant in favour of an unascertainable body of people cannot be granted."

The Court also noted the factual inconsistencies in the plaintiffs' case, such as the impassability of the route due to the canal for 40 years and their own admissions in Exs.P8 and P9.

---

Final Decision

The High Court concluded that the plaintiffs failed to establish their claim within the settled contours of law. It found no perversity in the First Appellate Court's findings, which had correctly appreciated the evidence and dismissed the suit.

Answering the substantial questions of law against the appellants, the Court dismissed the appeal and confirmed the judgment of the First Appellate Court, thereby denying the plaintiffs' claim to an easementary right.