Annie Stephen, M.E. Stephen and M. Steson v Mathew Joseph and SMT. Laya Simon

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **TUESDAY, THE 25TH DAY OF JUNE 2013/4TH ASHADHA, 1935** ## **RSA.No. 239 of 2013 ()** **----------------------AS 106/2010 of SUB COURT, PALA OS 86/2009 of MUNSIFF COURT, PALA** **----------------** ## **APPELLANT(S)/APPELANTS/DEFENDANTS :-** **--------------------------------------** **1. ANNIE STEPHEN, AGED 61 YEARS W/O.STEPHEN, MUPRAPPALLIL HOUSE, UZHAVOOR EAST P.O., UZHAVOOR VILLAGE, MEENACHIL TALUK.** **2. M.E.STEPHEN AGED 66 YEARS S/O.ESTHAPPAN, MUPRAPPALLIL HOUSE, UZHAVOOR EAST PO UZHAVOOR VILAGE, MEENACHIL TALUK.** **3. M.STESON, S/O.STEPHEN, AGED 38 YEARS MUPRAPPALLIL HOUSE, UZHAVOOR EAST PO, UZHAVOOR VILLAGE MEENACHIL TALUK, NOW RESIDING AT NO.8 CROFTON ROAD OLD SWAN, LIVER POOL L.13, UNITED KINGDOM REP.BY HIS FATHER AND POWER OF ATTORNEY HOLDER THE SECOND APPELLANT M.E.STEPHEN OF MUPRAPPALLIL HOUSE UZHAVOOR EAST PO, UZHAVOOR VILLAGE, MEENACHIL TALUK.** **BY ADVS.SRI.P.SANTHALINGAM (SR.) SRI.A.D.SHAJAN SRI.S.SHARAN** ## **RESPONDENT(S)/RESPONDENT/PLAINTIFF :-** **---------------------------------------** **MATHEW JOSEPH, AGED 52 YEARS S/O.UTHUPAN, RESIDING AT KAIPARETTU HOUSE UZHAVOOR EAST PO, UZHAVOOR VILAGE, MEENACHIL TALUK KOTTAYAM DISTRICT 686 634.** **BY ADV. SRI.M.NARENDRA KUMAR** **SMT.LAYA SIMON** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **jvt** ## **N.K. BALAKRISHNAN, J.** ## **------------------------------------** ## **R.S.A. No. 239 of 2013** **-------------------------------Dated this the 25[th] day of June, 2013** ## **J U D G M E N T** Defendants are the appellants. They challenge the concurrent finding regarding the plaintiff's right to use item No.2 road. 2. The plaintiff filed the suit for declaration of the right of easement by grant for ingress and egress to the plaint schedule property through item No.2. A further declaration that the plaintiff is entitled to an easement of necessity through the said property and also for a prohibitory injunction restraining the defendants from obstructing the plaintiff's enjoyment of the right of easement and a further prayer for mandatory injunction directing the defendants to remove the obstructions caused by the construction at the eastern boundary of the plaint schedule item No.1 and for the removal of the gate fixed on the northern end of item No.2 in order to facilitate the plaintiff's user of the way, were also sought for. The fact that item No.1 of the plaint schedule R.S.A. No. 239 of 2013 -: 2 :- property was purchased by the plaintiff is not disputed. It is also not disputed that item No.3 belongs to the 1[st] defendant. The further fact that item No.2 was purchased by the 1[st] defendant is also not disputed. Item No.2 measuring 8 cents was purchased by the 1[st] defendant for the purpose of constructing a road for ingress and egress to item No.3. 3. According to the plaintiff the 1[st] defendant and other two defendants and also their father Uthuppan and his brother Abraham had told the plaintiff that the benefit of the road will also be available to the plaintiff. Even as per the sale deed executed in respect of item No.2 in favour of the 1[st] defendant, it was specifically stated that no trees shall be planted on the said item. Hence the recitals in those documents will indicate that the said 8 cents of land was sold for the formation of the road from the northern PWD road for the benefit of the defendants and as well as the owners of the property on either side of the road. It was further contended by the plaintiff that his property, item No.1, was reclaimed for which soil was R.S.A. No. 239 of 2013 ## -: 3 :- brought to that item through item No.2 road. 4. Before the court below, PWs 1 to 3 were examined and Exhibits A1 to A10 were marked. DW1 and DW2 were examined and Exhibits B1 to B9 were marked. The Commissioner's report and sketch were marked as Exhibits C1 and C1(a). The trial court, after analysing the evidence adduced by the parties, a declaration was granted to the effect that the plaintiff was having right of way by easement by grant over item no.2 property covered by Ext.A3. A decree for mandatory injunction was also granted to remove the compound wall constructed on the eastern side of plaint item No.1 and also to remove the gate fixed on the northern side of plaint item no.2. A prohibitory injunction was also granted restraining the defendants from plaintiff's user of item no.2 road as access to plaint item No.1. 5. The defendants filed appeal. The lower appellate court re-appreciated the entire evidence and circumstances and concurred with the view taken by the trial court and thus the appeal was dismissed. The R.S.A. No. 239 of 2013 -: 4 :- learned counsel for the appellant has assailed the finding of the court below raising so many grounds. 6. The following substantial questions of law have been framed: - (1) Are the courts below justified in granting right of easement by implied grant in respect of item no.2, when the plea on the ground of easement of necessity was turned down on the ground that there is an alternative pathway? - (2) Did the courts below go wrong in appreciating the evidence with regard to the plea of easement by implied grant? 7. Though claim for easement by necessity was also raised by the plaintiff, during trial, the right that was projected by the plaintiff was one of implied grant. The PWD road lies to the north of the entire property originally held by Uthuppan and his brother Abraham. Item No.2, the road, formed after purchase of the property by the defendants, lies to the east of the two plots held by the plaintiff, of which, the plot lying to the north of the defendants' property was purchased as per document dated 26.4.2001. The other plot lies immediate to the north of the just aforementioned plot. Still lying to R.S.A. No. 239 of 2013 -: 5 :- the north is the property covered by document No.1787/2006. 8. The learned counsel appearing for the appellants would submit that the evidence would show that there is an old concrete lane of a width of 2 feet starting from the PWD road which proceeds along the western boundary of the property purchased by D2 and D3 as per document No.1787/2006. Since that concrete lane of a width of 2 feet reaches the plaintiff's property (item No.1) and since the plot lying immediate to the south also belongs to the plaintiff, the claim for easement by necessity must fall to the ground since howsoever inconvenient it may be the person who claims easement by necessity must find himself satisfied with the said pathway/lane which leads to the plaintiff's property. But since the plaintiff did not prosecute the suit claiming easement by necessity but projected only a case of implied grant, the existence of alternate pathway; namely, the concrete lane of a width of 2 feet lying along the western side of the property obtained by D2 and D3 R.S.A. No. 239 of 2013 -: 6 :- as per document of 2006 may not be of any consequence. It is vehemently argued by the learned counsel for the appellants that there is no clear pleading regarding the nature of easement claimed by the plaintiff and hence, the plaintiff is not entitled to get a declaration and injunction as sought for. 9. But, this contention is stoutly resisted by the learned counsel for the respondent/plaintiff pointing out that even in the plaint it was stated that the plaintiff was using the road which lies along the eastern boundary of the plots mentioned earlier. The fact that even as per the sale deed obtained by the appellants, 8 cents of land mentioned above was purchased for the purpose of the formation of the road would sufficiently indicate that the said property was purchased for the purpose of formation of the road. It is also in evidence that there was in existence a varamba/ridge having a width of 5 feet lying in north-south direction along the eastern boundary of the plots including the plot subsequently purchased by the plaintiff. At the time of sale in favour of the appellants, R.S.A. No. 239 of 2013 -: 7 :- the property lying to its west belonged to Uthuppan, the Predecessor-in-interest of the plaintiff. There is also evidence to show that as per the sale deed only right over half of the varamba; namely of a width of 2½ feet was sold to the appellants. The evidence would show that the remaining portion of the varamba of a width of 2½ feet got merged into the site of the road so that the appellants cannot claim exclusive right over the said road. Now the site of the entire varamba and the land measuring 8 cents purchased by the defendants together exists as a road starting from PWD road on the north and reaching the property of the defendants on the south. It proceeds along the eastern boundary of the plots originally held by Uthuppan, a part of which was subsequently purchased by the plaintiff. It is pointed out by the courts below that when a road was in existence and when Uthuppan, the predecessor of the plaintiff was having right over the portion of the varamba of a width of 2½ feet running from north to south and when there was specific condition in the sale deed that in R.S.A. No. 239 of 2013 -: 8 :- the said portion, no tree shall be planted it could be well discerned that the said property was intended to be used only as a road. 10. The learned counsel for the appellant has relied upon the decision of Madras High Court in **Periyanna Gounder (died) and Another v. Komarasami (2000 MLJ Page 431)** in support of his submission that when a right of easement is claimed, pleadings should be precise. It is further argued that easement of necessity cannot be claimed merely on the ground that the alternate ways pointed out by the opposite party is inconvenient. This argument has been advanced since a concrete pathway starting from the northern PWD road was seen to be lying on the western side which leads to western side of the property lying immediate to the north of plaintiff's property and so the plaintiff can have access to his property through that concrete way. The learned counsel would also submit that since the plaintiff has put forward a claim for easement of necessity also, they cannot claim easement by grant. On going through paragraph 8 of the R.S.A. No. 239 of 2013 -: 9 :- plaint, it is seen that the plaintiff claimed easement of necessity also through plaint schedule item No.2. Though such a plea was also raised by the plaintiff, the main case that was projected by the plaintiff was that he is entitled to an easement by grant over plaint schedule item No.2. It is true that it was not specifically stated whether it was an easement by express grant or implied grant. But on that ground the plaintiff cannot be denied the relief. In support of that submission, the learned counsel for the respondent has relied upon the Hon'be Supreme Court decision in **Sree Swayamprakash Ashramam and another v. G.Anandavally amma and others (2010 (2) SCC 689)** . That was a case where before the High Court, the defendants pleaded that there had been no appeal or cross objection filed by the plaintiff against the order of the appellate court which disallowed the claim of easement of necessity and therefore, the finding that there existed no easement of necessity in favour of the original plaintiff (since deceased) over the B schedule property stood confirmed. It was further contended by R.S.A. No. 239 of 2013 -: 10 :- the defendants therein that the alternative pathway on the western side of the A schedule property therein was rendered inconvenient by the very act of the plaintiff who sold that portion of the property to a third party who began digging that pathway resulting in the difference in the level. In that case, the High Court relied on a number of observations in **Katiyar's Law of Easement and Licences (12[th] Edn.)** with respect to “implication of grant of an easement”. It was held that implied grant may arise upon severance of a tenement by its owner into parts. Similarly the Katiyar's note to Section 8 of the Easement Act was quoted. It reads as follows: “There are numerous cases in which an agreement to grant easement or some other rights has been inferred or more correctly has been imputed to the person who is in a position to make the grant, on account of some action or inaction on his part. These cases rest on the equitable doctrine of acquiescence, but they may be referred to, for the purpose of classification, as imputed or constructive grants. The party acquiescing is subsequently estopped from denying the existence of easement. It is as if such person had made an actual grant of easement......... R.S.A. No. 239 of 2013 ## -: 11 :- .........It is the intention of the grantor whether he can be presumed to have been intended to convey to the grantee a right of easement for the reasonable and convenient enjoyment of the property which has to be ascertained in all the circumstances of the case to find out whether a grant can be implied. A description in a conveyance may connote an intention to create a right of easement. An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances.” 11. In that case also, the appellants contended that since there was no mention in the deed of settlement enabling the use of B schedule pathway for access to A schedule property and the building therein, it cannot be the reason to hold that there was no grant as the grant could be by implication as well. It was held in that case that the use of B schedule property as pathway even after execution of Ext.A1 settlement deed in the year 1982 by the original plaintiff (since deceased) would amply show that there was an implied grant in favour of the original plaintiff relating to the B schedule property of the plaint for its use as pathway to A schedule property in R.S.A. No. 239 of 2013 -: 12 :- residential occupation of the original plaintiff. In that case also, the trial court and the first appellate court found that the B schedule property was being used by the original plaintiff and there after by the respondents. The Hon'ble Supreme Court concurred with the view taken by this court and the appeal was dismissed. In this case, the evidence would show that earlier Item No.2 road was used by the plaintiff's predecessor and it continued to be so till the compound wall was put up just prior to the filing of the suit. The very fact that the plaintiff and his predecessor were using the said road as access to item No.1 and also to other items was sufficiently indicative of the fact that there was an implied grant of item No.2 road for access to item No.1 of the property. Therefore, such implied grant is inferable on account of the acquiescence on the part of the appellants and as such the contention to the contrary that there is no sufficient material to hold that there was an implied grant in respect of the road shown as item No.2 must fall to the ground. 12. The pleadings and evidence would satisfy the R.S.A. No. 239 of 2013 -: 13 :- case of implied grant set up by the respondents and as such the decree granted by the courts below is only to be confirmed. 13. The learned counsel for the appellant has relied upon the decision of this court in **Kochan Ramanathan** v. **Kochan Natarajan – 1990 (2) K.L.J. 617** in support of his submission that easement of necessity is one which can be claimed without any express grant and it is on the basis of the implication of law alone and that in such a case it must be confined to an absolute necessity and not a question of convenient and reasonable enjoyment. Since, here, the case is founded on implied grant the aforesaid decision also has no application. 14. The decision of the Rajasthan High Court in **Bhaironlal v. Rampershad – A.I.R. 1954 Raj. 49** also has no application to the facts of this case, since the claim is not founded on prescriptive easement or easement of necessity. As such, the contention that there should be specific pleading and evidence regarding such user, can have no application. ## R.S.A. No. 239 of 2013 -: 14 :- 15. The decision of the Madras High Court in **Ratanchand** v. **Kasim Khaleeli** [A.I.R. 1964 Madras 209] has also been relied upon by the learned counsel for the appellant. In that case it was held: “An easement may arise by implication under a grant, if an intention to grant can properly be inferred, either from the terms of the grant, or from the circumstances. An easement may also arise, by what may be called a constructive grant, from general words in the grant, read in the light of the circumstances. (See Gale on Easements, 13[th] Edn. Page 67-68). It is the intention of the grantor whether he can be presumed to have intended to convey to the grantee a right of easement for the reasonable and convenient enjoyment of the property which has to be ascertained in all the circumstances of the case to find out whether a grant can be implied. A description in a conveyance may connote an intention to create a right of easement.” The learned counsel for the respondents submits that in this case also the claim arises by implication under a grant in view of the circumstances pointed out earlier. 16. It is not in dispute that a road was formed and the defendants claim exclusive right over that road contending that it was formed making use of 8 cents of ## R.S.A. No. 239 of 2013 -: 15 :- land purchased by the defendants. It is true that the defendants had purchased 8 cents of land but the fact that a portion of the varamba was also used for the formation of the road, which was not covered by the sale deed cannot be lost sight of. In this connection, the specific contention put forward by the plaintiff is that at the time of sale of the property in his favour there was an understanding that the plaintiff can also make use of the road. 17. It is vehemently argued by the learned counsel for the respondent/plaintiff that when a road was in existence at the time of purchase of item No.1, abutting item No.1, it is only reasonable to think that the assignee was made to believe that he can make use of the road abutting his property on the east especially because the property was assigned to the plaintiff by none other than the father of the first defendant. It is further contended that since even as per the assignment deed executed by Uthuppan in favour of the first defendant in respect of 8 cents, specific restriction was imposed that no tree R.S.A. No. 239 of 2013 -: 16 :- should be planted on the said land and also because a portion of the varamba was tacked on to the road, it can certainly be inferred that there was an implied grant in respect of the said road in favour of the assignee to the plaintiff. 18. One more aspect has been projected by the plaintiff to contend that he and his predecessor had also used this road. They used the road for taking lorry loads of soil and other materials to fill up the plot lying immediate to the west of the road in question. The contention that to reclaim the property abutting the PWD road there is no necessity of taking the lorry through the disputed road may be acceptable also. But so far as the item lying to the south of the plot purchased by D2 and D3 as per document No.1787/2006 is concerned, it cannot be contended that the road in existence was not at all used. It is pointed out that in Ext.A5, it was specifically stated that the property covered by the said document is a reclaimed land. But in Ext.A1, it was specifically stated that the property covered by the said ## R.S.A. No. 239 of 2013 -: 17 :- document is a 'nilam' (wet land). Therefore, the contention that item No.1 was also a reclaimed land cannot be accepted. So far as the other document is concerned, it was stated that it was a reclaimed 'purayidom' whereas in Ext.A1 it is only stated that it was a wet land. Subsequently, that wet land was filled up and reclaimed. Therefore, that would perforce probabilise the case of the plaintiff that the owner of Ext.A1 land abutting that road used the road for filling it up by taking soil/mud. 19. The learned counsel for the respondent/plaintiff submits that a motorable road for ingress and egress from PWD road was formed for the benefit of all the owners of the property on either side of the plaint schedule item No.2. It was further contended that the first defendant and her husband (second defendant) and their son (third defendant) had represented to the plaintiff, that the benefit of construction of the road will also be available to the plaintiff and his father Uthappan and his father's brother Abraham. It is contended that R.S.A. No. 239 of 2013 -: 18 :- such a representation was made by the defendants in the presence of all the aforesaid persons. With regard to the easement by grant, it is argued that there is specific pleading in Paragraph 6 of the plaint where it was specifically stated that the plaintiff is entitled to an easement by grant over plaint schedule item No.2 and that the plaintiff, after obtaining plaint schedule item No.1, reclaimed the property and planted rubber trees in item No.1 and those trees are now yielding. It was further alleged that the reclamation of item No.1 was facilitated by taking mud/soil through item No.2. Therefore, the learned counsel for the respondent/plaintiff submits that there is sufficient pleading regarding the plea of grant put forward by the plaintiff. 20. It is further submitted by the learned counsel for the respondent/plaintiff that the road was lying open after it was formed and thus it was used by Uthappan the father of the respondent and till a compound wall was constructed the road was being used by the plaintiff as ## R.S.A. No. 239 of 2013 -: 19 :- was used by Uthappan. That also will go to show that there was a representation made by the appellants herein to Uthappan her father and also to the respondent herein who purchased Item No.1 that the road formed through item No.2 would be available for the benefit of the owners of the plots on either side of item No.2. It is further probobilised by the fact that half portion of the Varamba which was kept on the eastern side of the Varamba portion was also tacked on to the road and as such, the appellant cannot claim exclusive right over the road. These are circumstances which have been projected by the learned counsel for the respondent to contend that the contention raised by the appellants that Item No.2 is the exclusive property of the appellants and that the respondent has absolutely no right to use the road is unacceptable. Since the easement right pleaded by the respondent is not an easementory right by prescription, the period of user of the same is not of any significance. It was vehemently argued by the learned counsel for the appellants that the title deed in favour of the respondent R.S.A. No. 239 of 2013 -: 20 :- does not specifically say that he has got right to use item No.2 road. But the pleadings as regards the alleged representations made by the appellants and the lie, nature and position of item No.2 road and as to how the road was formed are matters which would support the case of the plaintiff/respondent that the Item No.2 road was formed not only for the benefit of the appellants but also for the benefit of all the owners of the property or either side of the road. As such, the decision of the Hon'ble Supreme Court in **Saraswathi and another v. S. Ganapathy and another (2001(4) SCC 694)** is not applicable to the facts of this case. In view of what have been stated above, all the points are answered against the appellants. I find no merit in the Regular Second Appeal. It is, hence, dismissed. ## **Sd/N.K.BALAKRISHNAN, JUDGE** //True Copy// P.A. To Judge jvt/jjj/das