Mary, Elizabeth, Sheenamma and Devasia v. George

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 31ST DAY OF JANUARY 2013/11TH MAGHA 1934 RSA.No. 546 of 2011 ( ) ----------------------AGAINST THE JUDGMENT IN AS.80/2002 of ADDL.DISTRICT COURT (ADHOC)-II, KOTTAYAM ## APPELLANT(S)/APPELLANTS/APPELLANTS/DEFENDANTS: 1. MARY, W/O.DEVASIA PUTHOOR HOUSE, THAMPALAKKADU KARA KANJIRAPPALLY VILLAGE, KOTTAYAM DISTRICT. 2. ELEZABETH, D/O MARYKKUTTY,AGED 29 YEARS, PUTHOOR HOUSE, THAMPALAKKADU KARA KANJIRAPPALLY VILLAGE, KOTTAYAM DISTRICT. 3. SHEENAMMA, D/O MARYKUTTY, AGED 27 YEARS, PUTHOOR HOUSE, THAMPALAKKADU KARA KANJIRAPPALLY VILLAGE, KOTTAYAM DISTRICT. 4. DEVASIA, AGED 65 YEARS, F/O SHEENAMMA, PUTHOOR HOUSE, THAMPALAKKADU KARA KANJIRAPPALLY VILLAGE, KOTTAYAM DISTRICT. BY ADVS.M/S. H.HAMZA ROWTHER, V.K.PEERMOHAMED KHAN SRI.H.SUNIL, SRI.K.M.ANEESH SRI.K.SANTHOSH KUMAR (KALIYANAM) SRI.S.NIKHIL SANKAR & SRI.ADARSH KUMAR ## RESPONDENT(S)/RESPONDENT/PLAINTIFF: GEORGE, S/O.MATHEW MADUKKAKUZHIYIL, THAMPALAKKADU KARA KANJIRAPPALLY VILLAGE, KOTTAYAM DISTRICT. R,R1 BY ADV. SRI.T.I.ABDUL SALAM THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## N.K.BALAKRISHNAN, J. ................................................................. R.S.A. No. 546 of 2011 .................................................................... ## Dated: 31-03-2013 ## JUDGMENT The defendants in a suit for injunction are the appellants. The suit was filed seeking prohibitory injunction against the defendants from causing any obstruction to the plaintiff's user of item No.3 the road portion and his peaceful enjoyment of the same. The trial Court decreed the suit. The appeal filed by the defendants was dismissed. 2. Shorn of the details, the case of the plaintiff is stated thus: Item No.1 of the schedule to the plaint admittedly belongs to the plaintiff and he is in possession of the same. Item No. 2 which lies on the southern side of item No. 1 originally belonged to one Thomas, his wife Thresiamma and son Tomy. They sold the property to defendants 1 to 3. R.S.A. No. 546 of 2011 -:2:- The case of the plaintiff is that there is a road passing through plaint schedule item No. 2 from Villani Michabhoomi Road towards north to plaint item No. 1. There was an earlier suit O.S. 52/1993 filed against the predecessors-in-interest of the defendants. That suit was compromised and Ext.A3 compromise decree was passed. During the pendency of the suit, the defendants therein had sold the property to the present defendants . 3. The defendants contend that Ext.A3 judgment is not binding on the defendants since they were not parties to the suit. According to the defendants, the transferees of item No. 2 are not bound by the compromise entered into between the predecessors-in-interest and the plaintiffs since that compromise was entered into subsequent to the transfer of the property by the defendants in favour of the present appellant. This contention is strongly resisted by the plaintiffs pointing out that the said transfer was during the pendency of the suit and since it is a pendente lite transfer, the transferees are bound by the decree passed by the Court. 4. Thus the crucial question for consideration is R.S.A. No. 546 of 2011 -:3:- whether Ext.A3 compromise decree passed in O.S. 52/1993 is binding on the defendants being the transferee pendente lite. According to the plaintiffs in view of Ext.A3 compromise decree it has to be found that there was actually a grant in favour of the plaintiffs. It is not necessary to probe further into that aspect since the question is whether Ext.A3 compromise decree is binding on the defendants who are only the transferees of the original defendants. It is not in dispute that Exts. B1 to B3 documents as per which the defendants obtained title to item No. 2 was executed on 9-7-1993 . The suit was filed on 4-2-1993. It is true that Ext.A3 compromise decree was entered into only on 27-8-1993. But so far as the plaintiffs are concerned there was no necessity to implead the transferees pendente lite since the transferees are bound by the decree that may be passed against the defendants. As such the contention that since the transferees (the appellants herein) were not parties to Ext.A3 and so Ext.A3 is not binding on them, is bereft of any merit. There is no absolute prohibition of transfer of immovable property by the parties to the suit but the only thing is that R.S.A. No. 546 of 2011 -:4:- the transferee would be bound by the decree. According to Sri. Adarsh, the learned counsel for the appellant, it is only the transfer of immovable property which is directly and specifically in question in the suit that would be affected by the transfer and it does not take in any easement right. 5. An easement which validly annexed to the land constituting the dominant tenement, remains annexed to dominant tenement so long as the easement continues to exist. The burden by way of easement binds the servient tenement notwithstanding any disposition of the servient tenement by the servient owner. Therefore, there is always the burden on the servient tenement, which having been annexed to the land,would be carried with the land and that burden would be annexed with the land and as such the contention that the appellants herein who are only transferees are not bound by Ext.A3 decree based on the compromise entered into between the plaintiff and the defendants in the earlier suit is denuded of any merit. An easement in an incorporeal right - an incorporeal hereditament, and although only an incorporeal right and R.S.A. No. 546 of 2011 -:5:- appurtenant to the dominant tenement it is an interest in land which constitutes the servient tenement. Considered with reference to the rights of the owner of the dominant tenement, an easement is a right additional to the ordinary rights to the property. An easement imposes upon the servient tenement an obligation to suffer something to be done or not to do something in or upon or in respect of, the servient tenement. Its effect is to restrict but not to extinguish the ordinary uses of the property in the servient tenement. An easement may be created by express grant also. No particular words are necessary to constitute a grant. Words which would clearly show the intention to give an easement and which is by law grantable are sufficient to effect that purpose. Here the language in Ext. A3 decree is so clear and definite that it imposes a burden on the servient tenement, thereby the defendants/ servient owners are bound by the obligation or burden cast on the servient tenement. There is no case that Ext.A3 is not defenite or certain . The right of the plaintiffs to use the 'C' schedule property as a road is so well defined and certain that it leaves no room for doubt as R.S.A. No. 546 of 2011 -:6:- to the right of the plaintiffs over the same being the dominant tenements. The contention that the transferees are not bound by Ext.A3 has no legs to stand. 6. An easement may be imposed by anyone in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed as mentioned in Sec. 8 of the Easements Act. The term "imposed" means imposition of a right of easement over the servient heritage by an express or implied grant amounting to estoppal. Here so far as the dominant tenement is concerned there was no transfer. The plaintiffs continued to be the dominant tenements. Since the transfer was pending the suit, the transferees are bound by Ext.A3 decree. The contention that Sec. 52 of the T.P. Act has no bearing on the issue is palpably unsound. It is not the easement right that has been transferred it is the land which was burdened with the easement that was transferred. The burden that is imposed on the land does not get extinguished by the original owner of the property transferring the same. 7. It was held by the Supreme Court in **Jayaram** R.S.A. No. 546 of 2011 -:7:- **Mudaliyar v. Ayyaswami Swami - AIR 1973 SC 569** that the purpose of Sec. 52 of the Transfer of Property Act ("the Act" for short) is not to defeat any just and equitable claim, but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward. Again it was held by the Supreme Court in H **ardev Singh v. Gurmail Singh - (2007) 2 SCC 404** that Section 52 of the T.P. Act does not declare a pendente lite transfer by a party to the suit as void or illegal, but only makes the pendente lite purchaser bound by the decision in the pending litigation. The said observation itself would make it clear that the question is not whether the pendente lite transfer is void or not but that the transferee would be bound by the decision rendered in the case during which the transfer was effected. If the suit is ultimately decreed in favour of the vendor, then certainly the vendee would also be benefited by the decree. But at the same time, if the vendor suffers a decree against him, then certainly the vendee has to suffer the decree. The vendee cannot contend that because he was not made a party to the suit he is not bound by the decree passed in favour of R.S.A. No. 546 of 2011 -:8:- the vendor. Here the property transferred was the servient tenement. There was a burden cast on that servient tenement with regard to the user of the pathway. 8. A little amount of confusion was created before the court below as to whether the right claimed is easement by grant or whether a prescriptive easement. It is pointed out that in the earlier suit, the plaintiffs had actually sought to establish that they have acquired easement right by prescription. It was that suit which was compromised recognizing the right of easement and it was in recognition of that easement right the compromise was entered into. Therefore, it is crystal clear that the servient tenement carried with it the obligation to allow the plaintiff to use the pathway of the length and width stated in the compromise decree. The contention that there can be no transfer of the easement right as such and so the defendants are not bound by the same, does not gain ground because the defendants being the transferees are bound by Ext. A3 decree. It is not the dominant tenement that was transferred but it is the servient tenement that was transferred in this case. The R.S.A. No. 546 of 2011 -:9:- defendant being the transferees pendente lite are bound by the decree. It makes no difference whether it is a compromise decree or whether it was the decree passed in a contested suit. 9. The decision of the Supreme Court cited by Sri. Adarsh the learned counsel for the appellant in T **. Ashok Kumar v. Govindammal & Anr. - 2011 AIR (SCW) 551** is totally inapplicable to the facts of this case since the fact dealt with in that case are entirely different. It was also argued by the learned counsel for the appellant that the compromise decree is not binding on the defendant/transferee since the decree was not subsequently registered as required under Sec. 17(1) of the Registration Act. According to the appellants since the value of the said property would be more than Rs. 100/-, registration was compulsory. But, here that question does not arise at all. The property held by the defendants/vendor in the earlier suit was transferred in favour of the present appellants by a registered document. It is only the servient tenement, the property through which the right of way was claimed was transferred to the R.S.A. No. 546 of 2011 -:10:- appellants. That right of way was affirmed and recognized as per the compromise decree. Since the easement runs with the land, the requirement of getting the compromise registered does not arise at all. Once the Court approves and recognizes the right of way that decree has all the force. There was no transfer of any immovable property by the plaintiff in favour of another creating right in favour of another so as to contend that it should have been registered as required under Sec. 17 (1) of the Registration Act. Therefore, the decision of the Supreme Court in **Bhoop Singh v. Ram Singh Major & Others - (1995) SCC 5 709** also has no application to the facts of this case. 10. It is not a case in which where by the compromise decree any right, title or interest in immovable property of a value of Rs. 100/- or upwards, was created in favour of a party to the suit. It is only the right of way claimed by the plaintiffs in the earlier suit (O.S. 52/1993) which was recognized as per Ext.A3 compromise decree which is the issue involved in this case and since the defendants are bound by the transfer pendente lite, R.S.A. No. 546 of 2011 -:11:- the question of registration of the compromise decree does not arise at all. 11. Learned counsel for the respondents/plaintiffs has shown to me the Commissioner's report and plan which were marked as Exts. C4 and C4(a). Ext.C4(a) plan shows the lie of property. Item No.1 shown in Ext. C4 is situated on the northern side. Just on the southern side of the same is item No.2., the property of the defendant. The pathway in question which was approved and recognized in the earlier suit which is claimed in the present suit, based on Ext. A3 is shown as item No. 3. The said pathway passess from the road situated on the extreme southern side and then through item No.2 held by the defendants and proceeds further to the north to reach the property of the plaintiffs shown as item No. 1. 12. The Commissioner has reported that a gate was fixed when it enters the property of the defendants herein and key of the said gate was with the plaintiffs. Any way, since the right of way having a width of 7 1/2 feet has already been recognized in the earlier suit, the contention to the contrary cannot be sustained. In Ext.C4 R.S.A. No. 546 of 2011 -:12:- it was reported that item No. 3 which is now lying as a road has a length of 465 feet. At the starting point it is found to be 12 1/2 feet and when reaches the middle its width was found to be 12 feet and at the end point its width was found to be 12 1/2 feet. The Commissioner has reported that the said road is motorable one. No obstruction as such was found at the time of inspection. It was also reported that the said road shown as item No. 3 was proceeding along the western side of item No. 2. The lie and position of the road as shown in Ext. C4 and C4 (a) would also negative plea raised by the defendants that no such road was provided as per Ext. A3 compromise decree. Courts below were perfectly justified in granting a decree against the defendants. No substantial question of law is involved in this matter. Hence, this Regular Second Appeal is dismissed. Dated this the 31st day of March, 2013. ## Sd/-N.K.BALAKRISHNAN, JUDGE ani/ /true copy/ P.S. to Judge