MELAPATH KADEEJA and KOVVAPRATH PUTHIYAPURAYIL AHISHABI v. P. Abdul Rahiman

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931** **RSA.No. 907 of 2009()** **--------------------AS.21/2005 of PRINCIPAL SUB COURT,THALASSERY OS.128/2002 of ADDITIONAL MUNSIFF COURT, KANNUR** **....................** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** **------------------------------------------** **1. MELAPATH KADEEJA, D/O.MAMMU, AMINA MANZIL, KEECHERI P.O., ANCHAMPEEDIKA, KANNUR.** **2. KOVVAPRATH PUTHIYAPURAYIL AHISHABI,** **D/O.MUHAMMAD KUNHI HAJI, PAPPINISSERI AMSOM, AROLI DESOM.** **BY ADV. SRI.K.C.SANTHOSHKUMAR SMT.K.K.CHANDRALEKHA SRI.GOPAKUMAR G.** ## **RESPONDENT(S)/RESPONDENT/PLAINTIFF:** **-------------------------** **P.ABDUL RAHIMAN, S/O.MUHAMMAD HAJI, PEEDIKAPURA HOUSE, NEAR KATTILEPALLI, PAPPINISSERI.** **ADV. SRI.N.NAGARESH SRI.K.BABU** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** = = = = = = = = = = = = = = = = = = = = = = = = **R.S.A. NO.907 of 2009** = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18[th] day of January, 2010 ## **J U D G M E N T** --------------------- Admit. Respondent appears through counsel. 2. The following substantial questions of law are framed for a decision: (i) Whether a mere permission of user as a means of access will mature into an easement by grant to the extent of binding the subsequent transferee? (ii) Whether a suit can be maintained for perpetual injunction without seeking a declaration of right, if any of the respondent when a prayer for injunction is based on a right which the appellants deny? (iii) Whether any right of easement can be created in total destruction of the entire property owned by the appellants? 3. Second Appeal arises from judgment and decree of ## **R.S.A. No.907 of 2009** ## -: 2 :- learned Prl. Sub Judge, Thalassery in A.S.No.21 of 2005 confirming judgment and decree of learned Additional Munsiff, Kannur in O.S. No.128 of 2002. 4. Facts necessary for a decision of the questions above framed are: Plaint A schedule item No.1 belonged to Komath Rukhiya who assigned the same to Parayil Chandran as per A1, assignment deed dated 20.1.1999. Item No.2 of plaint A schedule belonged to Ahammed. He assigned it to Parayil Chandran as per Ext.A2, assignment deed dated 20.1.1999. Ahammed had 8 cents adjoining plaint A schedule item No.2 acquired as per Ext.A3, assignment deed No.2342/1981 which is described as plaint B schedule. While Ahammed assigned item No.2 of plaint A schedule to Parayil Chandran as per Ext.A2, he granted a right to take vehicles to item No.2 of plaint A schedule through plaint B schedule. Later, Parayil Chandran assigned plaint A schedule item Nos.1 and 2 to Nissar and his wife, Suneera as per Ext.A4, assignment deed No.2010/2000 with right to take vehicles to the said property through plaint B schedule. Respondent-plaintiff is the father of the said Suneera. He filed the suit for injunction for and on behalf of Nissar and Suneera as they are abroad and he is managing plaint A schedule properties on their behalf. Respondent-plaintiff alleged ## **R.S.A. No.907 of 2009** ## -: 3 :- that appellant No.1 acquired title over plaint B schedule property as per assignment deed No.1641/2000 but subject to the right of Nissar and Suneera to take vehicles to the plaint A schedule through that property. The only access to plaint A schedule is through plaint B schedule. Hence the suit for prohibitory injunction. Appellant No.1 assigned plaint B schedule to appellant No.2. Hence appellant No.2 is also impleaded in the suit. Appellants contended that respondent has no locus standi to file the suit and that he, Nissar or Suneera have no right over plaint B schedule. Parayil Chandran, Nissar and Suneera had no right to use pliant B schedule. It is incorrect to say that plaint B schedule is the only access to plaint A schedule. Trial court found that as per Ext.A2 a right of easement by grant has been conferred on Parayil Chandran, assignor of Nissar and Suneera over plaint B schedule. That right was assigned to Nissar and Suneera while plaint A schedule items were assigned to them as per Ext.A4. Holding so, the suit was decreed. That has been confirmed by the first appellate court. Learned counsel for appellants contended that there is no plea of easement anywhere in the plaint, no declaration of right of easement is prayed for and hence courts below were not justified legally or factually in granting reliefs to the respondent. It is also contended that at any rate the ## **R.S.A. No.907 of 2009** ## -: 4 :- user of plaint B schedule property in the way granted as per Ext.A4 would render plaint B schedule totally useless and hence also courts below were not justified in granting injunction as prayed for. Learned counsel for respondent would contend that Exts.A2 and A4 amounted to a grant of the right to take vehicles through plaint B schedule in favour of Parayil Chandran and his assignees – Nissar and Suneera. Hence respondent is entitled to seek relief on behalf of Nissar and Suneera who are not in station and on whose behalf plaint A schedule items are being managing by the respondent. 5. There is no dispute regarding title of plaint A or B schedules. There is also no dispute that item Nos.1 and 2 of plaint A schedule belonged to Parayil Chandran as per Ext.A2 executed by Ahammed to whom plaint B schedule also belonged and the said Ahammed as per Ext.A2 granted right to Parayil Chandran to take vehicles to plaint A schedule through plaint B schedule. That amounted to an easement by grant. It is the settled position of law that when a right of easement by grant is provided as per a document, the terms and conditions of the grant will be governed by the contract between the parties. The grant would control the easement (See **Simon v. N.Jayanth** – 1986 KLT 457 and ## **R.S.A. No.907 of 2009** ## -: 5 :- **Velayudhan v. Padmanabhan** – 1998 [2] KLT 417). Courts below have held that right of easement by grant has been conferred on Parayil Chandran, who later assigned plaint A schedule item Nos.1 and 2 together with right of easement in favour of Nissar and Suneera as per Ext.A4. Therefore Nissar and Suneera are entitled to the right of easement by grant over plaint B schedule property by virtue of Exts.A2 and A4. 6. One argument advanced by learned counsel for appellants is that there is no plea regarding easement in the plaint. Further contention is that no declaration of easement has been prayed for. These contentions cannot stand. Though the word “easement” is not used in the plaint it is stated in the plaint that Parayil Chandran had the right to take vehicles through plaint B schedule by virtue of Ext.A2, assignment deed executed by the owner of plaint B schedule and plaint A schedule item No.2 and that by virtue of Ext.A4, Nissar and Suneera had acquired that right. That is sufficient to show that a right of easement by grant has been pleaded. The contention that in the absence of prayer for declaration of right of easement the suit is not maintainable is equally unsustainable in the light of the decisions of this Court in ## **R.S.A. No.907 of 2009** -: 6 :- **Krishna Pillai v. Kunjupillai** (1990 [1] KLT 136) and **Unnikrishnan v. Ponnu Ammal** (1999 [1] KLT 298). What is required is only that before substantive relief is sought, respondent had to prove that he has got a right of easement. A formal declaration of right is not essential. 7. Yet another contention advanced by learned counsel is that the grant as provided in Exts.A2 and A4 would render plaint B schedule entirely useless as far as appellants are concerned. This argument cannot stand in law since in the case of easement which is result of a grant it may even altogether exclude the servient owner from the use of servient tenement. It has been held in **Southport v. Ormskirk** ([1894] 1 QB 196) and **Biyan v. Whistlee** ([1956] 1 All. E.R. 237) that the easement granted may be such as would altogether exclude owner of the servient tenement and others from participation in the enjoyment of the easement. 8. The Advocate Commissioner deputed from the trial court has submitted Exts.C1 and C1(a), report and plan. Plaint B schedule is shown as plots A and B in Ext.C2. In Ext.C2, plan Commissioner has shown that along the middle of plots A and B a compound wall has been constructed. According to the learned ## **R.S.A. No.907 of 2009** ## -: 7 :- counsel for respondent that construction was made by the appellants during the pendency of the suit but respondent has not moved the court for removal of the compound wall. Learned counsel for respondent submits that so far as vehicular access to plaint A schedule (marked as plots C and D in Ext.C2) is concerned, plot B marked by Advocate Commissioner in Ext.C2 is sufficient. Learned counsel for appellants also is satisfied with that suggestion and a consequent modification of the decree. As decree of the trial court now stands, it is in respect of the entire plaint B schedule (plots A and B in Ext.C2). In the light of the submission made by learned counsel for respondent relief can be confined to plot B marked by the Advocate Commissioner in Ext.C2. Substantial questions of law framed are answered accordingly. Resultantly the Second Appeal is allowed in part. Judgment and decree of courts below are modified in the following lines: (i) Appellants-defendants, their men, agents or persons claiming under them are restrained by a decree for permanent prohibitory injunction from blocking the way to plaint A schedule (plots C and D in Ext.C2) through plot B in Ext.C2. ## **R.S.A. No.907 of 2009** -: 8 :- (ii) Exhibit C2 shall form part of the decree of this Court. (iii) Parties shall bear their respective costs throughout. **THOMAS P.JOSEPH, JUDGE.** vsv