A.S. No. 106/2000 (and R.F.A. No. 197/2003)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE SMT. JUSTICE P.V.ASHA TUESDAY, THE 23RD DAY OF SEPTEMBER 2014/1ST ASWINA, 1936 AS.No. 106 of 2000 (B) ----------------------O.S.NO.121/95 OF THE PRL. SUB COURT, KOCHI APPELLANT(S):PLAINTIFFS ------------------------ 1. P.V. SATHYAMOORTHY, S/O. LATE VASUDEVA RAO, AGED 38 YEARS, BUSINESS, VASANTHA VIHAR, THOPPUMPADY, KOCHI - 5. 2. P.V. NARAYANAN, S/O. LATE VASUDEVA RAO, AGED 37 YEARS, DO. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S):DEFENDANT ---------------------------- P.V. SURESH, S/O. LATE VASUDEVA RAO, AGED 41 YEARS, BUSINESS, RESIDING AT RAMESWARAM WEST MURI, THOPPUMPADY, KOCHI - 5. R, BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) R, BY ADV. SRI.P.B.KRISHNAN R, BY ADV. SRI.V.PREMCHAND(ADV.COMMISSIONER) THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 4.8.2014 ALONG WITH RFA. 197/2003, THE COURT ON 23-09-2014, DELIVERED THE FOLLOWING: ## **T.R.RAMACHANDRAN NAIR & P.V. ASHA, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **A.S. No.106/2000 and R.F.A. No.197/2003** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 23RD DAY OF SEPTEMBER, 2014** ## **JUDGMENT** ## Ramachandran Nair, J. These appeals have been filed by the appellants who are the younger brothers of the respondent. They are the sons of one Shri Vasudeva Rao. He had settled an item of property having 19.9 cents in favour of his three sons herein and also constructed a building - a three storied one in a portion of the property, with contribution from them and earmarked the ground floor to the respondent herein, viz. the elder son and the two upper floors, one each in favour of the appellants. Presently they are at loggerheads which resulted in the appellants filing O.S. No.121/1995 seeking partition of the plaint schedule property excluding the three storied building by metes and bounds into three equal shares and to direct demolition of certain unauthorised constructions made by the respondent herein. They also sought for a declaration that they are entitled to use the reception counter along with the furniture in the ground floor jointly with the respondent herein. O.S. NO.231/1995 filed by the respondent herein is one for AS No.106/2000 & RFA 197/2003 -2- permanent prohibitory and mandatory injunction directing the defendants to demolish the D schedule structure, apart from eviction of the defendants from plaint C schedule property on the strength of his title. 2. In O.S. No.121/1995 the court below did not grant a decree for partition of the plaint schedule property, holding the view that it is not liable for partition, but a decree has been granted directing the respondent herein to demolish the unauthorised construction made by him in 19.9. cents of property, viz. a shed which was tried to be constructed over the septic tank. O.S. No.231/1995 has been decreed allowing the respondent/plaintiff to get eviction of the appellants/defendants from plaint C schedule property on the strength of his title. The respondent is allowed to put up a wall or other separation on the southern portion of C schedule hall room after leaving 5 ft. space from the entrance to the staircase for the common use for access of the appellants/defendants to the first and second floors. A permanent prohibitory injunction has also been granted. 3. Necessary facts for the disposal of the appeals are the following: We will refer to the pleadings in O.S. No.121/1995 which was treated as the main case by the court below and it is seen that a joint trial was ordered. AS No.106/2000 & RFA 197/2003 -3- The parties are referred to as arrayed in these appeals. 4. The appellants are younger brothers of the respondent. The father executed Settlement Deed No.1393/1981 dated 8.4.1981 in favour of the three brothers settling the plaint schedule property of an extent of 19.9 cents in their favour (marked as Ext.B1). As per the said deed, the appellants and respondent are to be the joint owners of the property, each having 1/3[rd] share and they are to be in possession and enjoyment of the same as joint owners. Ext.B2 is another agreement executed between the parties and the father on the same date for construction of a three storied building in the said property. It was registered as document No.1394/1981. The father has also contributed amount with a provision for discharging the same by the sons. By the said agreement the ground floor will belong to the respondent and the first and second floors will belong to the appellants respectively. After the construction, the first and second floors were given to the respondent on a monthly rent of Rs.2,500/- for each floor and the respondent was conducting lodging business business in the entire building till March 1986. The two floors have been constructed in such a way as to conduct lodging business. According to the appellants, there is a reception AS No.106/2000 & RFA 197/2003 -4- counter in the ground floor which is a common one and without the use of the same, the appellants will not be able to make use of the first and second floors. From April, 1986 the first appellant is conducting lodging business in the first and second floors as well as the two rooms in the ground floor. The passage to the first and second floors is through the ground floor. In the ground floor there is a cash counter, reception hall, etc. which are jointly possessed and enjoyed by the appellants and the respondent who is conducting restaurant business in the ground floor. For the two rooms in the ground floor the appellants were paying a monthly rent of Rs.1,500/which were illegally repossessed by the respondent in April, 1992. The respondent made certain preparations for construction of a room above the septic tank of the building which was objected to by the appellants and a complaint was given to the Corporation of Kochi in this matter. The stand taken is that the respondent cannot use the land commonly enjoyed by the appellants, for his own purposes. Later, the respondent issued a lawyer notice and they sent a reply also. The respondent wanted the appellants to part away with the reception and cash counter after making facilities for their own in the upper floors. It is in those circumstances the suit was filed AS No.106/2000 & RFA 197/2003 -5- for partition excluding the three storied building into three equal shares and allotting 2/3[rd] share to the plaintiffs. Further directions were also sought. 5. In the detailed written statement filed by the defendant, the stand of the respondent is also that the appellants and the respondent are coowners of the plaint schedule property, each having 1/3[rd] share. As far as the ownership of the building is concerned, they are not co-owners as the respondent is the owner in possession and enjoyment of the ground floor having No.CC 16/1459, the first appellant is the owner of the first floor having No.CC 16/1460 and the second appellant is the owner of the second floor having No.CC 16/1461. All the three floors are separately assessed and separately constructed by the three brothers. Equal contributions have been made by them. The construction of the building was over in 1983. In the ground floor there are three rooms, a hall with reception counter and also a dining hall for conducting restaurant. All the rooms in the upper floors are used for lodging business. In the two floors there are lobbies at the entrance of the staircase for the purpose of arranging a reception counter for both the first and second floors. The staircase having a width of 3 ½ ft. leading to the first floor and the second floor is through the reception AS No.106/2000 & RFA 197/2003 -6- hall room in the ground floor. In 1983 the two floors were let out to the respondent at a monthly rent of Rs.2,500/- per month each as tenant. None of the rooms were furnished at that time and all the efforts for furnishing was done by the respondent and he provided a reception counter and decorative furniture in the hall room of the ground floor. The total expenditure for the whole work amounted to Rs.95,067.79. The respondent had not started the restaurant at that point of time and he was doing only lodging business. The lease arrangement continued upto March, 1986. On 1.4.1986 the respondent handed over the first and second floors to the appellants on their request and in the presence and mediation of their father. The value of the furniture less depreciation was assessed and in respect of the first and second floors it was assessed at Rs.42,245/- and this was credited in the account of the first appellant. The balance Rs.32,307/was decided to be the value of the furniture and fittings less depreciation in the counter of ground floor. 6. The respondent further contended that the appellants/plaintiffs have no right to use the reception counter as a matter of right. There is a separate licence agreement dated 1.4.1986 executed between the parties AS No.106/2000 & RFA 197/2003 -7- giving permission to the appellants to use and occupy the reception counter and the two lodge rooms adjoining the reception hall and for the use of the same Rs.1,500/- was being collected as establishment charges by the respondent. In January, 1992 two rooms in the ground floor were given back by the appellants to the respondent and thereafter no establishment charges have been collected from the appellants and they are not paying any amount also. The use of the reception counter is only by way of permission and the respondent is entitled to revoke the same. It is not a common reception counter as contended and the contention that the appellants cannot use first and second floors without such a facility in the ground floor is also denied by the respondent. According to the respondent, the appellants can establish a reception counter in the lobby separately available in the first and second floors. The respondent wants to convert the hall room having 400 sq. ft. area as four single rooms or as a conference hall. It is in that circumstances the request was made to the appellants to evict from the counter. It is also his case that in the roof the appellants have made certain constructions for which they are not entitled. Appropriate reliefs have also been sought in the suit filed by the respondent so as to evict the AS No.106/2000 & RFA 197/2003 -8- appellants from the hall room in the ground floor. 7. The suit filed as O.S. No.231/1995 is one for eviction and permanent prohibitory and mandatory injunction. The contentions of both parties are the same. 8. On behalf of the appellants P.W.1, viz. appellant No.1 and another witness as P.W.2 have been examined and the respondent was examined as D.W.1. Exts.A1 to A4 have been marked on the side of the appellants herein and Exts.B1 to B19 have been marked on behalf of the respondent. Exts.C1 to C3 are commission reports and Exts.X1 to X2(a) are documents marked through the witnesses. 9. We heard learned counsel for the appellants Shri Bechu Kurian Thomas and Shri S.V.Balakrishna Iyer, learned Senior Counsel for the respondent. 10. Learned counsel for the appellants submitted that the view taken by the trial court that the property is not partible, is not correct. It is submitted that the building does not occupy the entire 19.9 cents. The parties are entitled to 1/3[rd] share each of the land. The partition is claimed except in respect of the building. There is no difficulty to effect partition. AS No.106/2000 & RFA 197/2003 -9- Therefore, learned counsel submitted that the prayer for grant of partition has to be allowed. 11. With regard to the remaining aspects, learned counsel submitted that the counter in the ground floor of the building is very much required for the business of conducting a lodge in the upper floors. It is submitted that a counter can only function in the ground floor as in the two upper floors there are no provisions for having separate counters. Therefore, in the light of Sections 54 and 55 of the Easements Act the appellants are entitled for benefit by way of accessory licence. The functioning of the counter if denied to the appellants, will result in crippling of the business. The appellants have got undivided interest in the property wherein the building is situated. For that reason also, their right for a counter in the ground floor cannot be denied. But what is emphasised by the learned counsel is that for the free enjoyment of the two upper floors, viz for conducting lodging business, a counter in the ground floor alone is the only possible one. Therefore, it is submitted that Ext.A3 is an irrevocable licence and the respondent is not entitled to revoke the same and seek eviction of the appellants from the said area. The licence cannot be revoked at the will of AS No.106/2000 & RFA 197/2003 -10- the grantor. Learned counsel relies upon Section 55 of the Easements Act, 1882 and contended that as long as the interest of the appellants subsists in the two upper floors, there cannot be any cessation of the said interest. Learned counsel relied upon a decision of this Court in **Gangadharan v. Mominic Gomez and others** (1958 KLJ 481) in this context. 12. Learned counsel further submitted that the provision now given in the decree for passage, that also of 5 ft. width after providing a wall in the hall will clearly defeat the rights of the appellants. The business being one to conduct lodging in the two upper floors and when the respondent is also having two rooms in the ground floor it can be seen easily that depriving of the facility for a counter in the ground floor will affect their business. Therefore, the provisions of Ext.B2 will have to be understood in a manner as pleaded by the appellants. 13. Learned Senior Counsel for the respondent Shri S.V. Balakrishna Iyer, while opposing the contentions of the learned counsel for the appellants, submitted that the counter is now located in the hall in the ground floor which is under the exclusive ownership of the respondent. The permission for using the cash counter is only a licence as evident from AS No.106/2000 & RFA 197/2003 -11- Ext.A3 which is revocable. It is submitted that as far as the ground floor is concerned, there is no excess space compared to the two upper floors. He submitted, by relying upon the commissioner's report that even by deviating the plan additional areas have been provided in the upper floors. Apart from the same, learned Senior Counsel submitted that in both the floors there are lobbies for which furnitures were provided by the respondent when he was doing business and those open areas can easily be used for providing counter by the appellants. Learned Senior Counsel further submitted that even going by the oral evidence of P.W.1, the additional space available in the upper floors is admitted by him. 14. It is contended by the learned Senior Counsel that the principle under Section 55 of the Easements Act cannot have any attraction to the facts of this case. Herein, the entry to the building is from the ground floor and there is a stair case leading to the upper floors. The respondent had offered a 4 ft. width passage for giving access to the upper floors and the court below has fixed it as 5 ft. When the ownership of the ground floor is clearly with the respondent and when permission alone is granted as per Ext.A3, the claim now raised that they have an uninterrupted right to use the AS No.106/2000 & RFA 197/2003 -12- counter cannot be legally supported and no equity can be claimed also. In this context, learned Senior counsel submitted by referring to paragraph 3.9 of Ext.C3 report that sufficient space is available in the upper floors wherein counter can be provided. It is submitted that after the two rooms were surrendered in January, 1992 the respondent is not collecting Rs.1,500/-. Actually, the two rooms were surrendered by the appellants. While referring to the conditions provided in Ext.B2, it is submitted that each one of the parties are separate exclusive owners of the portion of the building allotted to them. Therefore, it cannot be stated that they are entitled for accessory easement, as even without a counter in the ground floor they can run the business in the two upper floors. The learned Senior Counsel submitted that the land except the building can be partitioned after identifying the extent. 15. Therefore, the points for determination are: (a) Whether the finding by the court below that the property excluding the portion of the building is not partible, is correct or not; and (b) Whether the appellants are entitled for use of the counter in the ground floor as an accessory easement. 16. As far as the first point is concerned, we find that the view taken AS No.106/2000 & RFA 197/2003 -13- by the court below is totally erroneous. Ext.B1 is a settlement deed whereby the father settled 19.9 cents of property in favour of the three sons. The evidence in the case will show that the building does not occupy the entire 19.9 cents and practically the extent of land covered by the building will be between 6 to 7 cents approximately. The court below has relied upon clause 8 of Ext.B2 to hold that the property is not partible. What is provided in clause 8 is that if any one among the parties to the document, i.e. the owners of the respective flats proposes to sell their portion then, they should offer the same to the other two by registered letter and if they express readiness the same should be sold to them. It is also provided that 1/3[rd] of the proportionate market value of the land wherein the building is situated, should also be reckoned for fixing the sale value. This clause is taken as a reason to hold that the property is not partible. 17. We find no reason to agree with the same. It is clear that the land has been settled in favour of all the three sharers with equal right. Therefore, 1/3[rd] right of each of them is clear. The court below went to the extent of stating that clause 8 will show that the 19.9 cents of property is treated as the area in which the three storied building is standing. The AS No.106/2000 & RFA 197/2003 -14- assumption made that no property is available around the building, for partition is also not correct. 18. Even going by the reports of the Commissioner, the 'L' shaped building does not cover the entire 19.9 cents and there is no case for any of the parties that the building occupies the entire land. The portion excluding the building can be easily demarcated and it can be partitioned by metes and bounds and we hold so. Therefore, the finding on issue NO.2 in O.S. NO.121/1995 that the property is not partible, is vacated. The appellants will be entitled for 2/3[rd] share and the respondent will be entitled for 1/3[rd] share of the land. 19. Now we will come to Ext.B2 which is the agreement whereby the building was constructed. Going by clause 3, it has been decided that the three brothers will provide amounts for construction of the building and if any further amount will be required, it will be made available by the father. Going by clause 5, the ownership of the ground floor is allotted to the respondent herein, the first floor to the first appellant and second floor to the second appellant. It is therefore clear from the said document that the respective owners are having exclusive right of ownership in respect of the AS No.106/2000 & RFA 197/2003 -15- portion allotted to them. 20. Ext.A3 is the agreement executed between the first appellant and the respondent herein which is dated 1.4.1986. We extract the relevant portion hereunder: “WHEREAS the passage and entrance into the second and third floor is through the ground floor of the building in possession of the first party, whereas the first party is having the cash counter, reception hall etc., whereas the first party has agreed to share with the second party the use the part of the ground floor room where the cash-counter, reception hall etc. is located to facilitate the running of lodging business of the second party for consideration. 1. In consideration of the first party allowing the second party to make use of the premises above mentioned, namely, the reception hall, cash-counter etc., in connection with his Lodging business, the second party agrees to pay the first party the sum of Rs.1,500/(Rupees One thousand five hundred) per month towards the first party's establishment charges on the following terms:-” Clause (c) under paragraph 1 is also relevant which is extracted below: “The second party shall not have any possession of the premises except the right to use the same in connection with his lodging business.” AS No.106/2000 & RFA 197/2003 -16- Thus, no possessory right is given to the first appellant. It cannot be disputed that what is given is only a right to use the premises mentioned, viz. the reception hall, cash counter, etc. in connection with the lodging business. 21. While disputing the claim for accessory easement, we have already noted that the learned Senior Counsel appearing for the respondent submitted that there is sufficient space available in the two upper floors as lobbies for having separate counters. The plan of the building, at the time of construction, has been produced as Ext.B3. A reference to Ext.B3 will show that in the ground floor there is an entrance, lounge and a hall. There are two double rooms also. In the upper floors, apart from the rooms provided, space is provided as lounge. In the report of the Commissioner, viz. Ext.C3, paragraph 3.9 clearly gives an idea about the lounge available in first and second floors and the manner in which they are kept. We extract the same hereunder: “3.9. On the lobby of the Second floor, I found a double wooden sofa and 2 single sofa sets for the use of the lodgers and there is a telephone bearing No.231158. On the first floor, there is a sofacum-bed with cushion in the lobby of four seaters and one single AS No.106/2000 & RFA 197/2003 -17- seater with cushion and there is a telephone bearing No.231158 and it is said to be the extension of the main telephone. The stair-case leading to the second floor from the first floor is having a width of 2' 11”” The Commissioner has described the portions as lobby itself with the furnitures spread over there. Ext.C1 report of the Commissioner shows that the three storied building is an “L” shaped one. The entrance portion of the building measures about 4 feet 4 inches in width which is a passage for entrance into the reception counter and hall room. A rough sketch has been provided with Ext.C3 report showing the location of the counter, etc. The same is actually C schedule to O.S. No.231/1995. The Commissioner has described it as a cash counter/enquiry counter which is on the western side of the hall, in Ext.C3. The details of the furniture provided in the hall are also mentioned in paragraph 1.3 under point No.2. 22. The evidence in this case will show that the respondent was conducting the business from inception and the first appellant took over the conduct of lodging business from 1.4.1986. What we find from the plan is that the counter is not part of the plan of the building. Obviously, therefore, the counter was a temporary arrangement made by the respondent in the hall AS No.106/2000 & RFA 197/2003 -18- when he started conducting the business. That the first appellant did not have any such claim even at the time of Ext.A3 agreement was entered into, is clear as otherwise there would have been separate provision in Ext.B2 document itself for having a permanent counter in the ground floor when the father made every provision concerning the building for enjoyment by the sons. Even at the time of execution of Ext.A3, the appellants did not insist for any irrevocable licence and they never understood it as an irrevocable one also. 23. In that view of the matter, when there is space in the upper floors for lounge and since there is no case that the same cannot be utilised for providing counter, as rightly pointed out by the learned Senior Counsel for the respondent, the appellants can easily provide a counter in the two floors and there is no impossibility for the same. Therefore, we are of the view that on that score the appellants' contention that there should be a counter in the ground floor itself, cannot be sustained. 24. Then the question is whether it is an accessory license as claimed by the appellants. Section 55 of the Easements Act, 1882 thus requires consideration which we extract hereinbelow: AS No.106/2000 & RFA 197/2003 -19- “55. Accessory licenses annexed by law.-- All licenses necessary for the enjoyment of any interest, or the exercise of any right, are implied in the constitution of such interest or right. Such licenses are called accessory licenses.” Going by the same, a license which is necessary for the enjoyment of any interest, or the exercise of any right, is implied in the constitution of such interest or right. 25. In B.B. Katiyar's “Law of Easements & Licences”, the following principles have been explained, by referring to various authorities: “ Though no express grant is necessary for such licences yet the grantor of such interest or right may, by express reservation or explicit exception in the grant itself, prevent the grantee from claiming any of such licences if such reservation or exception is consistent with the grant and does not take away the very right or interest granted thereby and does not make by it, the enjoyment of such interest or right impossible. So where there is express reservation requiring the grantee not to do certain acts for the enjoyment of the interest granted or for exercise of the right conferred, the law will not imply a licence for such acts in favour of the grantee. But what is absolutely necessary for the enjoyment of a right must be implied in the very grant of the right for without it the grant itself would fail and no man can grant a right and prevent its AS No.106/2000 & RFA 197/2003 -20- exercise by one and the same grant........” With regard to the co-extensive nature of the same also, the learned author has explained thus: “ **2. Accessory licence co-extensive with the interest or the right.--** Accessory licences continue as long as the interest or the right to which they are annexed continues. Unlike a mere licence they are not revocable at the will of the grantor. Being annexed to the right or interest they partake of the nature of such right or interest and become part of it. So they cannot be revoked part from it and unless such right or interest is itself revocable, they are not revocable at all. An accessory license ceases to exist, when the interest or right to which it is attached ceases to exist. Assuming that permission to occupy the site of the hut or building is necessarily implied in, or appurtenant to, a permission to occupy the hut or building itself, it can only be as an accessory licence, which cannot survive cancellation or revocation of the main licence itself by the destruction of the subject-matter.” These principles have been relied upon by the learned counsel for the appellants. 26. Now we will come to **Gangadharan's case** (1958 KLJ 481), AS No.106/2000 & RFA 197/2003 -21- which is a decision of Varadaraja Iyengar, J. wherein the above principle came up for consideration. In paragraph 5 the learned Judge has explained the same in the following terms: “So, when the owner of a flat leaves it to a tenant for him and his family's residence he must be deemed to have given permission for what is reasonably necessary for the reasonable use and enjoyment of the flat for that purpose. _Butterly Co. Ltd. v. New Huckwall Colliery Co._ (1910) A.C. 381. And these accessory licenses continue so long as the interest or the right to which they are annexed continue. So if the original license cannot be revoked, e.g. When the licensee acting upon the license has put up a permanent structure, the accessory licenses cannot likewise be revoked (i.e.) they can both be enforced against all transferees of the property. Whether or not a license is appurtenance to the property transferred so as to run with it like any other appurtenance thereto, is always a question of fact which depends on the examination of all the relevant circumstances attending a particular case.” ## The decision in **Butterly Co. Ltd. v. New Huckwall Colliery Co** . (1910) ## A.C. 381 has been relied upon by this Court. 27. It can be seen that it was a case in which adjoining site of a kudikidappukaran was allotted in partition to one sharer which extended AS No.106/2000 & RFA 197/2003 -22- close to the eastern wall of kudikidappukaran's house upto the road. A permanent injunction was sought by the kudikidappukaran as the means of access will be cut off. It was contended by the defendant that the only right claimable by the kudikidappukaran, is against eviction from the site of the house. This Court considered the question as to whether the means of access can be denied. It was held that the fence cannot be put up beyond the point at which the projecting eves of the house drop and on this account a space of one kole width may have to be left on the eastern side and a pathway 1 ½ koles in width is to be provided along the southern boundary fence. The principle of accessory license was imported there. 28. We will now come to the evidence of P.W.1. According to him, without the reception counter the first and second floors cannot be used. This was deposed in chief examination. In page 10 of the cross examination he admitted that as per Ext.A3, the cash counter and reception hall are being used. To a specific question he answered that if a four feet width passage is given from the entrance to the stair case, they can easily have access to the upper floors , but he deposed that it is not acceptable for him. In the upper floors there are single rooms as well as double rooms. At page 12 he AS No.106/2000 & RFA 197/2003 -23- admitted that in the first floor and second floor separate lounge is there which is used for sitting and in the two floors people are sitting there in sofas. 29. The vehement argument raised by the learned counsel for the appellants is that without the counter in the ground floor the lodging business in the upper floors cannot be conducted at all and therefore Section 55 of the Easements Act will come into play. He also referred to Sections 60 and 62(i) of the Easements Act which are in the following terms: “60. License when revocable.-- A license may be revoked by the grantor, unless-- (a) it is coupled with a transfer of property and such transfer is in force; (b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution. 62. License when deemed revoked.-- A license is deemed to be revoked-- (a) to (h)xxxxxxxxxxxx (i) in the case of an accessory license, when the interest or right to which it is accessory ceases to exist.” What is highlighted by the learned counsel is that the above provisions will AS No.106/2000 & RFA 197/2003 -24- come into the help of the appellants to get a counter in the ground floor itself. 30. Shri S.V. Balakrishna Iyer, learned Senior Counsel for the respondent submitted, as already noticed, that it is only as per Ext.A3 the user of the cash counter is permitted. There is sufficient space in the two floors where a counter can be provided. We have already referred to the reports of the Commissioner. It is clear that in the two upper floors space for lobbies are there. It is not as if that the appellants contend for the position that the counter of a particular measurement of length and width is required. What we have noticed from Ext.B3 plan is that no such counter is specified in the plan also. Therefore, it is clear that the respondent had provided a counter in the ground floor when he was conducting the business earlier in the entire building. Ext.A3 allows the user of that counter along with the respondent for his business in the ground floor. When there is sufficient space available in each of the upper floors, even going by the reports of the Commissioner and the admission of P.W.1in his evidence, it cannot be held that a counter in the ground floor itself is required for doing business. Ext.A3 cannot be said as an irrevocable license. It cannot be said AS No.106/2000 & RFA 197/2003 -25- that the principle under Sections 55, 60 and 62(i) of the Easements Act will attract to the facts of this case. 31. The decision in **Gangadharan's case** (1958 KLJ 481) will not help the appellants herein. Hence, the appellants are not entitled for the declaration sought that they are entitled to use the reception counter in the ground floor along with the respondent. Further, when partition is effected, they can utilise the land allotted to them for such purposes also. 32. Learned Senior Counsel also submitted that in Ext.C2 report of the Commissioner, in answer to point No.10, it is stated in sub-para 3 that on the southern side of the schedule building it can be seen that first and second floor of the plaint schedule building are projecting to the south beyond the ground floor and that this might have been made at the time of construction of the building itself. In the oral evidence of P.W.1 also admitted the same. It is submitted that the stand of the appellants cannot therefore be justified and no equity can be claimed by them. 33. In fact, this argument was raised, as the appellants contended that the respondent has extended the kitchen in the ground floor without their consent, and a room was sought to be constructed over the septic tank. AS No.106/2000 & RFA 197/2003 -26- Any how, we are only referring to the arguments as it appears that both parties have been beneficiaries of such extensions and additions. 34. We therefore allow A.S. No.106/2000 to the extent of holding that the property excluding the portion where the building is situated, is partible and it is declared that the appellants are entitled to 2/3[rd] shares and the respondent is entitled to 1/3[rd] share and a preliminary decree is passed accordingly. The property to be partitioned will be identified after measurement and the same will be partitioned by metes and bounds and the respective parties can apply for passing a final decree. Other reliefs sought in the said appeal are rejected. R.F.A. No.197/2003 is dismissed confirming the decree and judgment already passed. The parties will suffer their costs. **(T.R.RAMACHANDRAN NAIR, JUDGE)** **(P.V. ASHA, JUDGE)** **kav/**