OP(C) No. 911 of 2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943** ## **OP(C) NO. 911 OF 2021** **AGAINST THE ORDER/JUDGMENT IN CMA 6/2018 OF PRINCIPAL SUB** **COURT,ATTINGAL, THIRUVANANTHAPURAM** ## **OS 472/2016 OF MUNSIFF COURT,ATTINGAL, THIRUVANANTHAPURAM PETITIONER/S:** 1 ANEESH AGED 43 YEARS S/O. RAVEENDRAN, INDRAPASTHAM, MANGALAPURAM, VEILOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT-695302. 2 ARUN AGED 38 YEARS S/O. RAVEENDRAN, INDRAPASTHAM, MANGALAPURAM, VEILOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT-695302. BY ADVS. G.P.SHINOD SRI.GOVIND PADMANAABHAN SHRI.AJIT G ANJARLEKAR ## **RESPONDENT/S:** ANEENA, AGED 40 YEARS D/O. SUPRABHA, SREYAS, FROM NEITHUPURA VEEDU, MANGALAPURAM, VEILOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT-695302. BY ADV G.S.REGHUNATH THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 04.10.2021, THE COURT ON 07.10.2021 DELIVERED THE FOLLOWING: O.P(C) No.911 2021 2 _**'CR'**_ ## **A.BADHARUDEEN,J.** ================================ _O.P(C) No.911 of 2021_ ================================ Dated this the 7[th] day of October, 2021 ## **JUDGMENT** This original petition filed under Article 227 of the Constitution of India, is directed against Ext.P5 order in C.M.A.No.6/2018 dated 28.2.2020 on the file of the Sub Judge, Attingal. The said Civil Miscellaneous Appeal arose out of order in I.A.No.1922/2016 in O.S.No.472/2016 on the file of the Munsiff Court, Attingal. The appellants in the above CMA are the defendants in the above suit and the respondents in I.A.No.1922/2016. 2. I would like to refer the parties in this appeal as 'plaintiff' and 'defendents' for easy discussion and convenience. 3. O.S.472/2016 was filed by the plaintiffs seeking declaration of easement by grant in respect of plaint D schedule pathway for the beneficial enjoyment of Plaint A schedule property owned by the plaintiff. Along with this suit, I.A.No.1922/2016 also was filed seeking O.P(C) No.911 2021 3 temporary injunction restraining the defendants from causing further obstruction to D Schedule pathway and also from causing any inconvenience to the peaceful enjoyment of the D Schedule pathway, till the disposal of the suit. 4. The learned Munsiff anxiously considered the interim application. On finding _prima facie_ case in favour of the plaintiff coupled with other requirements of 'balance of convenience' and 'irreparable injury', the learned Munsiff granted interim injunction, whereby the defendants are restrained from causing any obstruction to the plaintiffs in using Plaint D Schedule pathway, till the disposal of the suit. 5. Ext.P4 is the interim order passed by the learned Munsiff in I.A.No.1922/2016 dated 23.9.2017. Ext.P4 was challenged by way of appeal to the Sub Court, Attingal and the learned Sub Judge also dismissed the appeal confirming the interim injunction as per Ext.P5 order. 6. The defendants, who are aggrieved by the grant of interim injunction are now before this Court. According to them, Exts.P4 and P5 are manifestly and apparently erroneous. 7. It is submitted by the learned Counsel for the petitioners/defendants O.P(C) No.911 2021 4 that the claim of the plaintiff over plaint D schedule pathway was based on the grant made as per Ext.A2 and the said right is available from southern road upto southern extremity of Plaint B Schedule therein and the claim of the plaintiff for right of way based on the said grant through the plaint B Schedule property up to the northern extremity of Plaint A schedule property is unsustainable. It is contended further that the courts below failed to take note of these aspects and wrongly granted interim injunction in relation to Plaint D Schedule property. It is contended further that easement by grant provided in Ext.A2 document would not automatically extent to the subsequent purchaser unless expressly granted by the said owner, in the subsequent partition deed. 8. On the otherhand, learned Counsel for the plaintiff/respondent herein supported Exts.P4 and P5. According to the learned Counsel, easment right granted over D Schedule by way of grant was asserted by the plaintiff and the Commissioner located existence of D Schedule as contended by the plaintiff. Accordingly, the courts below passed Exts.P4 and P5 orders, to preserve the subject matter till the disposal of the suit and to protect use of the said pathway till then. 9. Coming to the crux of this dispute, it has to be held that the case of the plaintiff is confined to right of easement by grant through O.P(C) No.911 2021 5 the eastern side of A and C Schedule property. 10. On reading of the recitals in A2, it is crystal clear that 5 links pathway has been provided through the eastern side of A and C Schedule properties as per Ext.A2 for the common use of A and B Schedule property owners. 11. So going by Ext.A2, the contentions raised by the plaintiff as to easement by grant over D schedule, would be seen prima facie. In such situation, refusal to grant interim injunction would cause irrperable injury to the plaintiff and thus balance of convenience also is in favour of the plaintiff. However, the contentions raised by the defendants that the grant provided in Ext.A2 is not available up to the northern extremity of A Schedule property is a matter of evidence during trial. When considering an interim application to preserve the subject matter and to facilitate use of D Schedule identified by the Commission, till the disposal of the suit by the plaintiff, Munsiff rightly granted interim injunction, finding the essentials for the same. The first appellate court confirmed the order 12. It is not in dispute that easement by grant can either be express or implied. Here, Ext.A2 expressly provided grant and the O.P(C) No.911 2021 6 Commissioner located the said pathway as well. In such a case, this Court cannot to hold otherwise by exercising the power of superintendence provided under Article 227 of the Constitution of India. 13. As early in 1988 a single bench of this court in _**[Velayudhan v. Padmanabhan, 1988 (2) KLT 417=1988 KHC 461]**_ , it was held that easement of grant is a matter of contract between the parties and it may have its own consideration in some form or another. In the decision reported in _**[(2006) 5 SCC 545, Hero Vinoth Vs. Sheshammal]**_ , the Apex Court affirmed the said view and held that _in the matter of grant the parties are governed by the terms of the grant and not anything else. Easement of necessity and quasi easement are dealt with in Section 1_ 3 _of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed_ O.P(C) No.911 2021 7 _by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone_ 14. In the decision reported in _**[2017 (2) KHC 352 Purushothaman Pillai Vs. Sudheer],**_ a Single Bench of this Court also expressed the same view relying on the decision in _**Hero Vinoth's Case** (supra)._ Thus in the matter of grant the parties are governed by the terms of the grant and not anything else. Easement of necessity and quasi easement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone. But evidence to substantiate the grant is paramount and the said course is during trial. 15. To summarise, I have no hesitation to hold that the courts below O.P(C) No.911 2021 8 granted interim injunction to protect the plaint D Schedule pathway over which the plaintiff asserts right of easement by grant and the said order is not liable to be interfered. Therefore, the orders are liable to confirmed and the original petition is liable to be dismissed. 16. Faced with this situation, learned Counsel for the petitioners/defendants submitted that the original petition may be disposed of with a direction to trial court to expedite the trial in the matter untrammelled by the observations in Ext.P4 and P5. Therefore, it is ordered that the trial court shall dispose of the suit on merits relying on the evidence adduced during trial untramelled by the observations in Exts.P4 and P5 and the observations made by this Court in this original petition. Accordingly, this original petition will stand dismissed. Sd/ ## **A. BADHARUDEEN, JUDGE** Jm/ 9 ## O.P(C) No.911 2021 ## **APPENDIX OF OP(C) 911/2021** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|A TRUE COPY OF THE PLAINT IN OS NO.472/2016| ||OF THE MUNSIFF COURT, ATTINGAL DATED| ||18/08/2016.| |EXHIBIT P2|A TRUE COPY OF PETITION IA NO.1922/2016 IN OS| ||NO. 472/2016 OF THE MUNSIFF COURT, ATTINGAL| ||DATED 18/08/2016.| |EXHIBIT P3|A TRUE COPY OF THE OBJECTION FILED BY THE| ||PETITIONER TO IA NO.1922/2016 IN OS| ||NO.472/2016 OF MUNSIFF COURT, ATTINGAL.| |EXHIBIT P4|TRUE COPY OF THE ORDER IN IA NO.1922/2016 IN| ||OS NO.472/2016 OF MUNSIFF COURT, ATTINGAL| ||DATED 23/09/2017.| |EXHIBIT P5|TRUE COPY OF THE JUDGMENT DATED 28/02/2020 IN| ||CMA NO.6/2018 OF THE SUB JUDGE, ATTINGAL.|