Pavizhamma and others v. Mangalamma

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024/20TH POUSHA, 1945** ## **RSA NO. 718 OF 2023** **AGAINST THE DECREE AND JUDGMENT DATED 15.11.2022 IN AS 33/2016 OF II ADDITIONAL DISTRICT COURT, KOLLAM DECREE AND JUDGMENT DATED 30.11.2015 IN OS 501/2011 OF ADDITIONAL MUNSIFF COURT, KOLLAM** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** **1 PAVIZHAMMA AGED 73 YEARS W/O SASIDHARAN, CHAKINAMTHARA THEKKEVEEDU, SAKTHIKULANGARA CHERRY, KOLLAM., PIN - 691581 2 SUDHAN AGED 47 YEARS S/O SASIDHARAN, CHAKINAMTHARA THEKKEVEEDU, SAKTHIKULANGARA CHERRY, KOLLAM., PIN - 691581 3 SASIDHARAN AGED 72 YEARS S/O SIVARAMAN, CHAKINAMTHARA THEKKEVEEDU, SAKTHIKULANGARA CHERRY, KOLLAM., PIN - 691581 4 SUNIL AGED 54 YEARS S/O SREEDHARAN, CHAKINAMTHARA THEKKEVEEDU, SAKTHIKULANGARA CHERRY, KOLLAM., PIN - 691581** **BY ADV LIJU. M.P** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **MANGALAMMA AGED 72 YEARS W/O SUBRAMANYAN, CHAKINAMTHARA THEKKEVEEDU, HOUSE NO.116/2 SAKTHIKULANGARA CHERRY, KOLLAM., PIN - 691581** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA NO.718 OF 2023** **2** ## **CR** ## **JUDGMENT** Dated this 10[th] day of January, 2024 This regular second appeal has been filed under Section 100 r/w Order XLII Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for short), challenging dismissal of AS No.33/2016 on the files of the Additional District Court-II, Kollam, dated 15.11.2022, arose out of the decree and judgment in OS No.501/2011 on the files of the Additional Munsiff's Court, Kollam, dated 30.11.2015. The appellants herein are the defendants in the above suit. The respondent herein is the plaintiff. 2. Heard the learned counsel for the appellants/defendants on admission. 3. I shall refer the parties in this regular second appeal as 'plaintiff' and 'defendants' for convenience. **RSA NO.718 OF 2023** **3** 4. A suit for declaration, mandatory injunction and permanent prohibitory injunction was filed by the plaintiff. Originally, the plaint 'A' and 'B' schedule properties were purchased jointly by the plaintiff and the first defendant. as per a sale deed. According to the plaintiff, while the plaintiff and the first defendant jointly possessing and enjoying the plaint 'A' and 'B' schedule properties, both of them executed partition deed No.3357/1987 and as per the partition deed, plaint 'A' schedule property settled in favour of the plaintiff and plaint 'B' schedule property settled in favour of the first defendant. Now, the plaintiff has been in possession and enjoyment of plaint 'A' schedule property and the first defendant has been possessing and enjoying plaint 'B' schedule property. 5. According to the plaintiff, plaint 'C' schedule is the pathway where the plaintiff got right of easement by grant as recited in the partition deed and the defendant also is entitled to use the same, now obstructed the same by dumping soil. **RSA NO.718 OF 2023** **4** 6. The defendants filed written statement, _inter alia,_ contending that no specific way was provided in the partition deed, either expressly or impliedly, and therefore, suit relief could not be granted. At the same time, execution of the partition deed was admitted. 7. The court below went on trial on raising necessary issues. 8. On adjudicating the matter, on appreciation of evidence confined to that of PW1 and PW2, Exts. A1 to A2 DW1 and DW2, Exts. B1 to B5, CW1 and CW2 Exts.C1 to C4 series, the learned Munsiff decreed the suit as under: _“14. In the result, suit decreed as follows: (a) The plaintiff's right of easement by grant over plaint 'C' schedule way is hereby declared._ _(b) The defendants are directed by a decree of mandatory injunction to remove the soil dumped in the 'C' schedule way. Failing which the plaintiff is entitled to remove the same with the costs of the defendants._ _(c) The defendants are restrained by a decree of permanent prohibitory injunction from obstructing the plaintiff's usage of 'C' schedule way and from altering the boundaries of 'C' schedule way and from committing any waste therein.”_ **RSA NO.718 OF 2023** **5** 9. Although appeal was filed before the appellate court, challenging the said verdict, the appellate court also concurred with the finding of the trial court. 10. At the time of admission hearing, the learned counsel for the defendants submitted that Ext.A1 is the partition deed relied on by the plaintiff to assert right of easement by grant over 'C' schedule way and in Ext.A1, either expressly or impliedly, nothing could be gathered to see grant of easement, as contended by the plaintiff. When it was pointed out to the learned counsel as to the grant expressly stated in Ext.A1, as has been reproduced in paragraph No.11 of the trial court judgment, his contention is that the existence of such a way is not all established. He also submitted that the way never used as stated in the title deed. 11. Confining the matter in dispute, according to the plaintiff, he got right of easement by grant over the plaint 'C' schedule way, on the strength of the recitals in Ext.A1 **RSA NO.718 OF 2023** **6** partition deed, admittedly, executed in between the plaintiff and the first defendant. On perusal of the narrations in Ext.A1, as has been reproduced in paragraph No.11 of the appellate judgment, it could be gathered that an express grant is provided to use the existing pathway, which is capable of transport at the time of execution of Ext.A1 itself. When commissions were deputed, they also found existence of the way though the same found to be obstructed by the defendants by dumping soil. In Ext.C4(a) plan, the way is specifically located and identified. 12. As far as the question of right of easement by grant is concerned, the law is well settled that easement by grant is governed by the term of grant and the same would never extinguish. 13. In 1988, a learned Single Judge of this Court in _**Velayudhan v. Padmanabhan [1988 (2) KLT 417=1988 KHC 461],**_ considered the essentials of grant and it was held that easement of grant is a matter of contract between the **RSA NO.718 OF 2023** **7** 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 by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone._ **RSA NO.718 OF 2023** **8** 14. In the decision reported in _**2017 (2) KHC 352 (Purushothaman Pillai Vs. Sudheer),**_ a learned Single Judge of this Court also expressed the same view relying on the decision in _**Hero Vinoth's**_ Case _(supra)._ 15. The said ratio has been followed by this Court in the decision in **Aneesh v. Aneena** , reported in **2021 KHC** ## **670 : 2021 (6) KLT 191: 2021 (4) KLJ 892.** 16. Thus in the matter of easement by 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. Availability of alternative way also would not defeat right of easement by grant. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant **RSA NO.718 OF 2023** **9** 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. 17. In the instant case, on evidence supported by necessary pleadings, it is proved that there is express grant in Ext.A1 and there is no reason to hold otherwise since easement by grant runs with the land and the same also would not extinguish at all. 18. In view of the above, concurrent verdicts rendered by the trial court and the appellate court do not require any interference by this Court. 19. In this case, in fact, the learned counsel for the appellants/defendants failed to justify any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus: _**“2. Power of Court to direct that the appeal be heard on the question formulated by it.** -At the time of making an order under rule 11 of Order XLI for the_ **RSA NO.718 OF 2023** **10** _hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”_ 20. Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) **RSA NO.718 OF 2023** **11** The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. 21. In the decision in **Nazir Mohamed v. J. Kamala and Others** reported in **[2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168]** , the Apex Court held that: _The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring_ _**Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722]** ._ **RSA NO.718 OF 2023** **12** 22. In a latest decision of the Apex Court in **Government of Kerala v. Joseph** , reported in **[2023 (5) KHC 264 : 2023 (5) KLT 74 SC]** , it was held, after referring **Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179] (three – Judge** Bench) _,_ as under: _For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court._ 23. The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as **RSA NO.718 OF 2023** **13** something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial _question of law” by suffixing the words “of general importance”_ as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal. 24. In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal. 25. In the result, this appeal is found to be meritless and the same is dismissed without being admitted. **RSA NO.718 OF 2023** **14** All interlocutory applications pending in this second appeal stand dismissed. Registry shall inform this matter to the trial court as well as the appellate court, forthwith. **Sd/A. BADHARUDEEN JUDGE** nkr