Kunjannamma and Others v. Santosh and Others (RSA No. 998/2018)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944 RSA NO. 998 OF 2018** **AGAINST THE JUDGMENT AND DECREE DATED 10/11/2017 IN AS 154/2011 OF ADDITIONAL DISTRICT COURT (SPECIAL), KOTTAYAM OS 110/2010 OF MUNSIFF COURT, VAIKOM** ## **APPELLANTS AND RESPONDENTS 5 TO 9/DEFENDANTS:** 1 KUNJANNAMMA AGED 65 YEARS REFERRED TO AS KUNJAMMA IN THE JUDGMENT), W/O JOSEPH, PAZHAYAKADAVIL HOUSE, THALAYOLAPARAMBU P.O, THALAYOLAPARAMBU KARA, VADAYAR VILLAGE, VAIKKOM TALUK 2 JOSEPH AGED 65 YEARS S/O. MATHEW, PAZHAYAKADAVIL HOUSE, THALAYOLAPARAMBU P.O, THALAYOLAPARAMBU KARA, VADAYAR VILLAGE, VAIKKOM TALUK 3 GEORGE AGED 30 YEARS S/O. JOSEPH, PAZHAYAKADAVIL HOUSE, THALAYOLAPARAMBU P.O, THALAYOLAPARAMBU KARA, VADAYAR VILLAGE, VAIKKOM TALUK, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER KUNJANNAMMA (REFERRED TO AS KUNJAMMA IN THE JUDGMENT) AGED 65 YEARS, W/O. JOSEPH, PAZHAYAKADAVIL HOUSE, THALAYOLAPARAMBU P.O, THALAYOLAPARAMBU KARA, VADAYAR VILLAGE, VAIKKOM TALUK 4 JOSELIN PAZ AGED 33 YEARS W/O. MATHEW, PAZHAYAKADAVIL HOUSE, THALAYOLAPARAMBU P.O, THALAYOLAPARAMBU KARA, VADAYAR VILLAGE, VAIKKOM TALUK, NOW RESIDING AT TARRY TOWN, NEW YORK, I DUNNINGS DRIVE, 10539, UNITED STATES OF AMERICA REPRESENTED BY ITS POWER OF ATTORNEY HOLDER KUNJANNAMMA (REFERRED TO AS KUNJAMMA IN THE JUDGMENT) AGED 65 YEARS, W/O. JOSEPH, PAZHAYAKADAVIL HOUSE, THALAYOLAPARAMBU 2 R.S.A.No.998/2018 P.O, THALAYOLAPARAMBU KARA, VADAYAR VILLAGE, VAIKKOM TALUK 5 JUSTIN PAZ AGED 8 YEARS S/O. MATHEW, PAZHAYAKADAVIL HOUSE, THALAYOLAPARAMBU P.O, THALAYOLAPARAMBU KARA, VADAYAR VILLAGE, VAIKKOM TALUK, NOW RESIDING AT TARRY TOWN, NEW YORK, I DUNNINGS DRIVE, 10539, UNITED STATES OF AMERICA REPRESENTED BY 6TH RESPONDENT JOSELIN PAZ. 6 JESMI PAZ AGED 1 YEARS D/O. MATHEW, PAZHAYAKADAVIL HOUSE, THALAYOLAPARAMBU P.O, THALAYOLAPARAMBU KARA, VADAYAR VILLAGE, VAIKKOM TALUK, NOW RESIDING AT TARRY TOWN, NEW YORK, I DUNNINGS DRIVE, 10539, UNITED STATES OF AMERICA REPRESENTED BY 6TH RESPONDENT JOSELIN PAZ. 7 ANJOLI PAZ AGED 3 YEARS S/O. MATHEW, PAZHAYAKADAVIL HOUSE, THALAYOLAPARAMBU P.O, THALAYOLAPARAMBU KARA, VADAYAR VILLAGE, VAIKKOM TALUK, NOW RESIDING AT TARRY TOWN, NEW YORK, I DUNNINGS DRIVE, 10539, UNITED STATES OF AMERICA REPRESENTED BY 6TH RESPONDENT JOSELIN PAZ. BY ADVS. ALEX.M.SCARIA SMT.SARITHA THOMAS ## **RESPONDENTS 1 TO 4/PLAINTIFFS AND DEFENDANTS NO.3:** 1 SANTHOSH AGED 41 YEARS S/O MADHAVAN, CHANDEZHATHU HOUSE, THALAYOLAPARAMBU KARA, VADAYAR VILLAGE, VAIKKOM TALUK 686605 2 MAHILAMANI AGED 56 YEARS D/O. KALYANI, BIJU NIVAS, VADAKKUMBHAGAM MURI, VADAYAR VILLAGE, VAIKOM TALUK - 686 141. R.S.A.No.998/2018 3 3 BIJU AGED 29 YEARS S/O. ASHOKAN, BIJU NIVAS, VADAKKUMBHAGAM MURI, VADAYAR VILLAGE, VAIKOM TALUK - 686 141. 4 MATHEW AGED 34 YEARS S/O JOSEPH, PAZHAYAKADAVIL HOUSE, THALAYOLAPARAMBU P.O, THALAYOLAPARAMBU KARA, VADAYAR VILLAGE, VAIKKOM TALUK (DIED) - 686605. BY ADVS. SRI.BOBBYMATHEW KOOTHATTUKULAM SMT.GIA MATHAI KANDATHIL THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 14.07.2022, THE COURT ON 25.07.2022 DELIVERED THE FOLLOWING: 4 R.S.A.No.998/2018 ## **M.R.ANITHA, J** ****************** R.S.A.No.998 of 2018 ---------------------------------------Dated this the 25[th] day of July, 2022 ## **J U D G M E N T** This Regular Second Appeal has been directed against the judgment and decree passed in A.S.No.154/2011 on the files of Additional District Court-II (Special), Kottayam which arise out of the judgment and decree in O.S.No.110/2010 on the file of Munsiff's Court, Vaikom. 2. (Parties would be referred as per their status before the Munsiff's Court). Appellants are the defendants and the suit has been filed seeking for a perpetual injunction. Plaint Schedule Item Nos. 1 and 2 properties belong to plaintiffs 1 and 2. The 3[rd] plaintiff is the son of the second plaintiff and first and 3[rd] plaintiffs are running their establishments in the plaint schedule building. After the purchase of the plaint schedule property, both plaintiffs constructed two floors further. The property of the defendants 5 R.S.A.No.998/2018 lies on the eastern and northern side of plaint item Nos.1 and 2 properties. Plaintiffs and defendants purchased property from a common owner. At the time of purchase of the property by the plaintiffs the owner of the property had given an access to the staircase on the northern and eastern sides of the plaint schedule property having a width of 3 ft and it is described as plaint 1 and 2. Way has been provided for using the staircase at the northern side as well as to carry out the maintenance of the building and to enjoy other amenities of the building by virtue of the above Exts.A1 and A2 documents. With the consent of the plaintiffs, the predecessor of the defendants erected a gate on the eastern side of the plaintiff's building providing an access to the eastern and northern side of plaint item Nos.1 and 2 properties. When the defendants openly obstructed the use of item No.3 way, the suit has been filed. 3. After the institution of the suit, defendants 2 and 3 having right of the adjacent property of the plaint schedule property were also made parties. The defendants have no manner of right to obstruct the use of way, item No.3 by the 6 R.S.A.No.998/2018 plaintiff. Hence, the suit has been filed for restraining the defendants from causing obstruction to the plaintiff in using item No.3 pathway. 4. Defendants filed written statement contending that the suit is bad for non joinder of necessary parties. Item Nos.1 and 2 of plaint schedule properties are part and parcel of the same building. The staircase was the access to first floor of plaint schedule item Nos.1 and 2 building. The plaintiffs have no right to access through defendants' property which they purchased in the year 2002. The gate was erected by the predecessor of the defendant to secure the property excluding plaint Item Nos.1 and 2 sold to the plaintiffs. That gate is under the lock and key of the defendants, subsequent to the sale of property to them by the predecessor of the plaintiffs. Plaintiffs illegally erected certain pipes on the side of item Nos.1 and 2 property as an outlet from toilet and wash basin in the defendants' property. There is no pathway as described in plaint item No.3 in existence. 5. Additional defendants 2 to 4 filed separate written statements supporting the contentions of the original defendant. PW1 to PW4 examined and Exts.A1 to A8 marked from the side 7 R.S.A.No.998/2018 of the plaintiffs. DW1 examined and Exts.B1 to B7 series marked from the side of the defendants. Exts.C1, C1(a), C2, C2(a), C3 and C3(a) were also marked. 6. On evaluating the facts and circumstances and evidence adduced, the learned Munsiff found that the plaintiffs have indefeasible right over plaint item No.3 for the beneficial enjoyment of plaint item Nos.1 and 2 properties and defendants have no manner of right to cause obstruction for the use of item No.3 by the plaintiffs and accordingly suit was decreed and defendants were perpetually restrained from trespassing into plaint item No.3 property and causing any objection to the enjoyment of the plaintiffs over plaint item No.3 property. 7. Against which defendants 1 and 2 filed A.S.No.154/2011 before the District Court-II (Special), Kottayam. Learned District Judge, on evaluation of facts and circumstances as well as the additional plea raised before it to the effect that easement by grant has been extinguished etc. have been considered and found that plaint item No.3 property belongs to the defendants and the plaintiffs have only right of passage as 8 R.S.A.No.998/2018 envisaged in their title deeds Exts.A1 and A3. Hence perpetual injunction against trespass into plaint schedule item No.3 would jeopardise the right of the defendants to possess and enjoy plaint schedule item No.3 property without obstructing the right of user of plaintiffs and hence the trespass component in the injunction with respect to item No.3 property granted against the defendants is interfered with and defendants were restrained by permanent injunction from obstructing the user of plaint schedule item No.3 by the plaintiffs and also keeping the gate at the entrance closed under the exclusive lock and key of the defendants. Aggrieved by the judgment and decree passed by the first appellate court, the defendants approached this Court in this Second Appeal. 8. Notice was issued to the plaintiffs as well as the respondent No.3/the third defendant. First respondent appeared through counsel. Respondents 2 and 3 were also duly served. 9. According to the learned counsel for the defendants both courts below failed to appreciate the real issue involved in this case. According to him, the way was provided as per 9 R.S.A.No.998/2018 Exts.A1 and A3 for use of staircase on the rear side of the building of the plaintiffs and admittedly, the plaintiffs, after the expansion of the building and taking two more floors, replaced the staircase and at present there is no staircase at all. Since the right provided as per Exts.A1 and A3 is for the use of the way for having access to the staircase alone, once the staircase is not in existence, the right of use of way also automatically extinct and hence the grant has become unenforceable. It is also his contention that the courts below ought to have given a purposive interpretation to the document and ought not to have granted a decree for use of way since the purpose for which the way has been provided is no more in existence. Learned counsel for the defendants in this context, placed reliance on **Joseph T.T and Another v. Valsamma Varghese and Others : 2022 (3) KHC 443.** 10. The learned counsel for the defendants contend about the purposive construction of Exts.A1 and A3 and the limitation of right provided to the plaintiffs with respect to way for use of staircase alone. But the dictum laid down in **Joseph T.T** has no 10 R.S.A.No.998/2018 application to the case in hand. It only says that a document is to be construed as a whole and the real intention of the parties has to be gathered not merely from what ex facie is stated as the description of the property in the schedule, but from the totality of the recitals in the document. Here, there is no question of such difference in description of property in the schedule or in the body of the document. The specific contention is with regard to the grant provided for right of use of pathway expressly in Exts.A1 and A3. 11. It is also his contention that Rule 27 of the Kerala Building Rules also prevents the plaintiffs from making any erection or opening without leaving sufficient set backs. As per the Building Rules, any erection of staircase in future also will be prohibited by law and hence an injunction granted anticipating a necessity to the plaintiffs in future cannot be recognised under law and hence, according to him, the injunction granted by the courts below is illegal and unsustainable. 12. Learned counsel for the plaintiffs, on the other hand, would contend that both the courts below have concurrently 11 R.S.A.No.998/2018 found right of easement by grant to the plaintiffs over item No.3 property and that is expressly provided in Exts.A1 and A3, the title deeds of first and second plaintiffs. The contention of the defendants that due to the removal of staircase, the grant which has been given as per Exts.A1 and A3 has been extinguished, is not at all sustainable for the following reasons : (1) No such plea was taken by the defendants in their written statement. (2) The easement by grant will not extinguish like an easement by necessity. 13. Learned counsel for the plaintiffs relies on **Hero Vinoth (Minor) v. Seshammal : 2006 KHC 831 : AIR 2006 SC 2234 : 2006 (5) SCC 545; Jayanti Kar and Aother v. Dilip Kumar Patnaik and Others : 2016 KHC 2549 : AIR 2016 Ori. 44 ; Kumar s (Dr.) and Others v. S. Ramalingam : 2019 KHC 6657** as well as **Sree Swayam Prakash Ashramam and Another v. G. Anandavally Amma and Others : 2010 (2) SCC 689 : AIR 2010 SC 622 : 2010 (1) KHC 232** . 14. The main argument of the learned counsel for the defendants is with regard to the extinguishment of easement by 12 R.S.A.No.998/2018 grant in view of dismantling of staircase on the northern side of plaint item Nos.1 and 2 property. Before going to the sustainability of the said argument in the absence of specific pleading as has been found by the first appellate court, it has to be considered whether such a plea is sustainable in view of the interpretation of the conditions stipulated in Exts.A1 and A2. It has been contended by the learned counsel for the appellants/defendants that a purposive construction of the stipulations in Exts.A1 and A3 would definitely leads to conclusion that when the staircase is not in existence for which the way has been provided, the grant for which the easement is granted will not survive. To resolve that issue, it would be necessary to go to the stipulations in Exts.A1 and A3 which have been extracted in page 11 paragraphs 12 and 13 of the judgment of the first appellate court. 15. Paragraph 12 states about the stipulation in Ext.A1 which provides the right for stepping up and stepping down through the staircase situated on the rear side of the building and right of 3 ft. wide way from the southern road upto the 13 R.S.A.No.998/2018 staircase. ("…............................................. സലത�ല�ര�പ� ക�ട�ടത�ന� പ�റ��ല�ള ക�യർക�സ�ൽ ��ട� മ��ള�ലകത ന�ലയ�കലക� �യറ� ഇറങ�നത�ന�ള അവ�"ശവ�$ കതക�വശകത കറ"ഡ�ൽ ന�ന�$ ട� ക�യർ ക�യ'� വകരയ�ള മ�നട� വ(ത�യ�ൽ ഉള വഴ�യ�ൽ ��ട� സഞര�ക�നത�ന�ള സഞ"ര സ,"തന./"വ�"ശവ�$ ��ട� ത"ങൾക� ത(റ"ക� എഴ�ത� ക�വശകപട�ത� തന�$ ....................................") 16. In Ext.A3 it has been provided that the right of entry and exit to the upstair portion of the building which is under construction through a staircase situated on the rear side of the building and also the right of passage through a three feet wide pathway upto the staircase portion from the southern road. (“........................ ക�ട�ടവ�$ ട� ക�ട�ടത�ന� പ�റ��ല�ള ക�യർ ക�യ'�ൽ ��ട� മ��ള�ലകത ന�ലയ�ൽ ന�ങൾ പണ� �ഴ�പ�ക�ന ക�ട�ടത�കലക� �യറ�യ�റങ�നത�ന�ള അവ�"ശവ�$ ട� വസ6�വ�ന�കറ കതക�വശമ�ള കറ"ഡ�ൽ ന�ന�$ ട� ക�യർ ക�യ'� വകരയ�ള മ�നട� വ(ത�യ�ല�ള വഴ�യ�ൽ ��ട� സഞര�ക�നത�ന�ള സഞ"ര സ,"തന./"വ�"ശവ�$ ��ട� ന�ങൾക� ത(റ"യ� ക�വശകപട�ത� തന�$ ....................") 17. So, the contention of the learned counsel for the appellant is that the right given is only to use a pathway to reach upto the staircase and when that staircase is not in existence, the 14 R.S.A.No.998/2018 right provided also will extinct. The arguments so advanced by the learned counsel is not appear to be in consonance with the intention of the parties at the time of execution of the deed. If at all the right was given for passage through the staircase alone, in addition to that the right of entry from the road to a passage with a width of three feet upto the staircase ought not to have been given. On the other hand, the emphasis to the staircase is to point that the pathway does not extend beyond the staircase. It has come out in evidence that after the construction of the new two floors, staircase has been provided inside the building to the upstairs. So, admittedly, the staircase which was in existence at the time of execution of Exts.A1 and A3 is not in existence. 18. It is the contention of the learned counsel for the plaintiffs that they have to carry out other repair works and maintenance as well as plastering, painting etc at the eastern and northern side of the building. If the right of way granted by the predecessor as per the documents by receiving consideration from them is not kept in tact, their valuable right for enjoyment of item No.1 and 2 property will also be lost. So, subsequent 15 R.S.A.No.998/2018 purchaser of the property from the predecessor of the plaintiffs, that is the defendant, cannot prevent them from enjoying their right of easement by grant of item No.3 property. 19. I find considerable force in the argument so advanced in view of the specific recital in Exts.A1 and A3 sale deeds. As pointed out earlier, a specific grant of 3 ft. width pathway on the northern and eastern side of item Nos.1 and 2 property upto the staircase have been given to the plaintiffs 1 and 2 as per Exts.A1 and A3. So, the fact that after the construction of upstair portion of the building, a staircase has been provided inside the building will not be a reason to prevent the plaintiffs from using 3 ft. wide pathway provided in Exts.A1 and A3 documents. 20. As stated earlier, the main argument of the learned counsel is with regard to extinction of easement by grant in view of the non-existence of staircase on the northern side of the building as provided in Exts.A1 and A3. In this context, the first contention of the learned counsel for the plaintiffs is that there was no pleading with regard to the extinction of right of easement in the written statement. He would contend that 16 R.S.A.No.998/2018 throughout the written statement their plea was that there was no staircase or there was no such way in existence and only at the appellate stage, without any pleading this contention regarding extinction of easement has been taken by the defendant, which, according to him, is not permissible under law. First appellate court also categorically found about the absence of pleading with regard to plea of extinction of easement. In **Vimal Chand Ghevarchand Jain and Others v. Ramakant Eknath Jajoo : 2009 (5) SCC 713 : 2009 (5) SCALE 59 : 2009 KHC 4624** a two Judge Bench of the Apex Court while dealing with Order XIV Rule 2, Order VI Rule 1 Order XVIII Rule 2 held that determination of issue without any pleading for framing of issue or adduction of evidence is impermissible. A learned Single Judge of this Court in **Elizabeth v. Saramma : 1984 KHC 286 : 1984 KLT 606** also categorically held that importance of pleadings cannot be ignored because it is the pleadings that lead to the framing of issues and trial in every civil case is inevitably to be confined to the issues framed in the suit. The whole object of framing issues would be defeated if parties are allowed to 17 R.S.A.No.998/2018 travel beyond the issues and claim or oppose reliefs on grounds not made in the pleadings and not covered by the issues. In **Siddik Mohammed Shafi v. Mt.Saran and Others : AIR 1930** **PC 57** it was observed that where a claim has been never made in the defence presented, no amount of evidence can be looked into upon a plea which was never put forward. So, without raising a plea of extinction of easement by grant in the written statement, legally defendants cannot raise such a contention at the time of first appellate stage as well as before this Court in second appeal. 21. Learned counsel for the plaintiffs would also contend that the easement by grant will not extinct by a subsequent termination of necessity as in the case of easement of necessity. It is also contended that easement by grant will not become extinct for mere non-use. To substantiate that contention, learned counsel drew my attention to **Aduvanni Saidu and** **Others v. Aduvanni Moidutty : 2010 (4) KHC 520** wherein it has been held by the learned Single Judge that in the matter of grant, the parties are governed by the terms of the grant and 18 R.S.A.No.998/2018 none of them can turn around and dispute such grant for the reason that the grant is not available to the other party. Under an easement by grant, the party who is entitled thereto is in fact having a title in the land for the enjoyment so provided and its extinguishment at the volition or act of a third party or under the circumstances covered by S.47 of the Indian Easement Act, which are applicable to other rights of easement, cannot be pressed into service to deny such grant. 22. In **Sree Swayam Prakash Ashramam** , the Apex Court held that a plaintiff who is in continuous occupation of the building after its construction in the year 1940 and using the pathway (disputed) for access to the building and subsequent settlement deed not mentioning the right of the plaintiffs to use the pathway but the plaintiffs continuing to use the pathway and in such circumstances, it was held by the Apex Court that the plaintiffs' right to use the pathway by way of easement by grant to be upheld. 23. It is also the contention of the learned counsel for the plaintiffs that the property was purchased by the plaintiffs 1 and 19 R.S.A.No.998/2018 2 in the year 1993 and 1994 and it is subsequent to the sale of property to the plaintiffs with the right of use of item No.3 by grant that the predecessor in interest of the plaintiffs sold the property to the defendant in the year 2002. It has been contended by the learned counsel for the defendant that their sale deed does not refer about the alleged grant given to the plaintiffs over item No.3 property. But, since Exts.A1 and A3 expressly provides the right of use of item No.3 pathway for ingress and egress from the southern road to plaint item Nos.1 and 2 upto the staircase situated on the rear side of the property, the subsequent sale of the property without mentioning the grant given to the plaintiffs as per Exts.A1 and A2 will not in any way hinder the right of easement by grant given to the plaintiffs (See **Sree Swayam Prakash Ashramam** ). 24. The easement given to plaintiffs 1 and 2 by express grant in Exts.A1 and A3 will not become extinct due to non-use of staircase which have been there at the time of execution of the deed since the right of way has been given to the plaintiffs by Exts.A1 and A3 to use 3 ft. wide pathway upto the staircase 20 R.S.A.No.998/2018 situated on the rear side of the building for ingress and egress from the road on the southern side. 25. Learned counsel for the defendants would also contend that there is divergent finding with respect to title of plaint item No.3 property by the first appellate court as well as trial court. It is true that the trial court found the title and ownership of plaint item No.3 to the plaintiffs as per the Survey Commissioner's report and other facts and circumstances, but the first appellate court, in view of the clear admission by the plaintiffs in the plaint that the pathway is through the property of the defendants, it has been found that the ownership of the property is with the defendants. So, that is a fact which is admitted by the plaintiffs in the plaint itself. Even the recitals in Exts.A1 and A3 also would go to show that the plaintiffs have been granted a right of use of 3 ft. wide pathway alone. In such circumstances it is contended that the simple suit for injunction is not maintainable and a suit for declaration ought to have been filed. 26. This is a case in which a right has been given by grant to plaintiffs 1 and 2 by way of title deed Exts.A1 and A3 and their 21 R.S.A.No.998/2018 right of easement by grant has also been found concurrently by two courts. In such circumstances, there is no need further to declare their right of easement by grant and a suit for injunction to restrain the disturbance of an easement alone will suffice. As per Section 38 of the Specific Relief Act, a perpetual injunction can be granted to the plaintiffs to prevent the breach of an obligation existing in his favour whether expressly or by implication. So, in this case, an easement by grant has been given to the plaintiffs by his predecessor in interest of defendant as per Exts.A1 and A3 title deeds. The defendant, the subsequent purchaser of property from the plaintiffs' predecessor has an obligation to recognize the grant given to the plaintiffs. Whenever there is breach of obligation, the aggrieved party can very well resort to legal remedies. Contentions raised by the defendants itself would make it clear their intention to cause obstruction to the plaintiffs in using the right of way granted. So, the suit for injunction is perfectly maintainable. 27. In the notes of submission filed by the learned counsel it is also contended that no grant or easement can be sustained 22 R.S.A.No.998/2018 without attaching to the purpose and dominant heritage and he also placed reliance on Section 6 of the Transfer of Property Act. Section 6 of Transfer of Property Act provides that no easement can be transferred independently without any dominant heritage. It has been discussed earlier that the grant provided is a right of way upto the staircase for ingress and egress for going to upstairs as well as a right of pathway from the southern public road. Section 6 of the Transfer of Property Act has no application because even the defendant has no case that the right of use of pathway has been granted without any dominant heritage because it is, while the property described in Exts.A1 and A3 were transferred to the plaintiffs 1 and 2, this right of easement by grant has been given to them as per the title deeds. Learned counsel has also got a contention that building has been constructed on the boundary and there cannot be any opening to boundary as per the Kerala Panchayat Building Rules (in short, 'the Rules'). Since there is no provision for getting any opening to the eastern and northern boundary of plaint Item Nos.1 and 2 property as the Rules expressly prohibits the plaintiffs from 23 R.S.A.No.998/2018 putting any opening abutting the boundaries, the right of easement by grant is in conflict with the the Rules. Admittedly, the property was transferred to plaintiffs 1 and 2 in the year 1993 and 1994. Kerala Panchayat Building Rules came into force initially in 2011. It has been superseded by the Kerala Panchayat Building Rules, 2019. So, as on the date of transfer Kerala Panchayat Building Rules was not in force. It is true that proviso to Sub Rule 5 of Rule 27 of the 2011 Rules do not permit openings such as windows, doors etc. if the open space is less than one metre. In the case on hand at the time of transfer there was a staircase on the rear side of the building. During the time of filing the suit, the staircase was not in existence also. No opening also provided to northern and eastern sides of the buildings of plaint item No.1 and 2. But, the fact that the plaintiffs cannot make any openings or projections abutting item No.3 way, cannot be taken as a ground to contend about right of easement by grant or an inhibition to the plaintiffs in using item No.3 as a way as provided under the sale deeds Exts.A1 and A3. So, on evaluating the rival contentions, I am of the view 24 R.S.A.No.998/2018 that the courts below concurrently found the right of easement by grant over plaint item No.3 way to plaintiffs. So, I do not find any substantial question of law emerging for consideration of this Court in the second appeal. Hence the second appeal is found to be devoid of any merit and hence dismissed in limine. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge