Purushothaman Pillai S/o Kunjuraman Pillai v. Sudheer and Bini

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **WEDNESDAY, THE 15TH DAY OF MARCH 2017/24TH PHALGUNA, 1938** **RSA.No. 732 of 2015 (D)** **----------------------AGAINST THE JUDGMENT IN AS 77/2006 of SUB COURT, NEDUMANGAD** **AGAINST THE JUDGMENT IN OS 225/2001 of PRL.MUNSIFF COURT,NEDUMANGAD** **APPELLANT(S)/APPELLANT/PLAINTIFF: --------------------------------** **PURUSHOTHAMAN PILLAI S/O.KUNJURAMAN PILLAI, AGED 68, RESIDING AT SAJI BHAVAN, THUMBODU ANAKUDI MURI, VAMANAPURAM VILLAGE, THIRUVANANTHAPURAM.** **BY ADVS.SRI.RAM MOHAN.G. SRI.MANU V. SRI.G.P.SHINOD** ## **RESPONDENT(S)/RESPONDENTS/DEFENDANTS:** **-------------------------------------** **1. SUDHEER, AGED 42,** **S/O.KUTTAN PILLAI, RESIDING AT CHITHRALAYAM, PERIMELL, MITHURMALA, ANAKUDI MURI, KALLARA VILLAGE, THIRUVANANTHAPURAM.695 588.** **2. BINI, AGED 34,** **D/O.BABY SAROJINI, RESIDING AT CHITHRALAYAM, PERIMELL, MITHURMALA, ANAKUDI MURI, KALLARA VILLAGE, THIRUVANANTHAPURAM.695 588.** **R1 BY ADV. SRI.K.S.MANU (PUNUKKONNOOR)** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **[CR]** ## **B. KEMAL PASHA, J.** ................................................................ R.S.A. No. 732 of 2015 ............................................................... Dated this the 15[th] day of March, 2017 ## **J U D G M E N T** Where an easement by grant is created, can its user be restricted by imposing conditions, together with the grant? 2. Challenging the concurrent findings entered by the Principal Munsiff's Court, Nedumangad in O.S.No.225/2001 followed by those of the Subordinate Judge's Court, Nedumangad in A.S.No.77/2006, the plaintiff in the suit has come up with this second appeal. 3. The suit is one for declaration of title and possession of the plaintiff over plaint A schedule property, which takes in the plaint C schedule pathway also. Other consequential relief of perpetual injunction has also been sought for. According to the plaintiff, the 2[nd] defendant has made attempts to encroach into the portions of plaint A R.S.A.732 of 2015 -: 2 :- schedule property and to put up constructions in plaint C schedule pathway, and hence the suit. 4. The plaint B schedule property belongs to the 2[nd] defendant. Originally, plaint A, B and C schedule properties were lying as a compact plot having a total extent of 34 cents. The plaintiff purchased 25 cents of property, which is the plaint A schedule property. Even prior to that, the vendors of the 2[nd] defendant in respect of the plaint B schedule property purchased the plaint B schedule pathway having an extent of 9 cents through Exts.A1 and A2. Thereafter, the 2[nd] defendant purchased the said property through Ext.A5. In Ext.A2 an express grant of plaint C schedule pathway was made. Plaint C schedule pathway was granted as per the conditions incorporated in Ext.A2 by way of an easement by grant, for enabling access to plaint B schedule property from the northern road. 5. Both the courts below have concurrently taken the view that the plaintiff has no title over plaint C schedule R.S.A.732 of 2015 -: 3 :- pathway and therefore, the suit was partly decreed by granting a decree for the declaration of the title and possession of the plaintiff over plaint A schedule property, excluding plaint C schedule item. 6. This Second Appeal has been admitted by this Court on the following substantial questions of law: _(i) Did the courts below act contrary to law in erroneously interpreting the recitals in Exts.A2 and A5 documents to the effect that with respect to 'C' schedule pathway therein is absolute transfer of title in favour of the vendees therein, and the vendor did not retain any interest over the pathway after the sale? (ii) Did the courts below err in dismissing the suit in part by misconstruing and misinterpreting the recitals in Ext.A2 deed with respect to the extent of right conferred to the vendee as well as the reservations made therein in favour of the vendor with respect to the portion used as pathway?”_ R.S.A.732 of 2015 -: 4 :- 7. Heard the learned counsel for the appellant and the learned counsel for the respondents. 8. The learned counsel for the appellant has argued that both the courts below have failed to construe the conditions incorporated in Ext.A2 with regard to the plaint C schedule item, legally and properly. According to the learned counsel for the appellant, the appellant is entitled to get his title declared over plaint A schedule item as a whole, which takes in plaint C schedule item also. Further, it has been argued that the reservations and conditions incorporated in Ext.A2 were also not properly taken note of by both the courts below. _9. Per contra_ , the learned counsel for the respondent has argued that the 2[nd] defendant has absolute right over plaint C schedule item and the plaintiff cannot interfere with the right of user of the 2[nd] defendant over plaint C schedule item. 10. On hearing either side, it has clearly come out R.S.A.732 of 2015 -: 5 :- that the matter can be answered by interpreting the conditions in Ext.A2 and also by properly construing the said document. The 2[nd] defendant and her husband first defendant, are no doubt, bound by the terms and conditions contained in Ext.A2. When the vendors of the 2[nd] defendant as well as the plaintiff have derived title over the properties from common ancestor, no doubt the plaintiff is also bound by the terms and conditions contained in Ext.A2. The plaint C schedule pathway has been clearly described in Ext.A2. As per the terms and conditions contained in Ext.A2, it has been clearly mentioned that the plaint C schedule pathway is having a width of 15 feet, which starts from the northern road and it extends up to the north eastern corner of plaint B schedule item. The vendor of Ext.A2 had no doubt, retained his title over plaint C schedule item. As per the terms and conditions in Ext.A2, it was clearly mentioned that the northern boundary of plaint A schedule property including plaint C schedule item has a total width of 80 feet, and it R.S.A.732 of 2015 -: 6 :- was out of that 80 feet, plaint C schedule pathway having a width of 15 feet was provided. 11. It was also specially stipulated in Ext.A2 that in case the vendor of the plaintiff wants to construct any building in his property, having the said width of 65 feet, he could construct such a building by making use of the said portion of the property as well as the portion coming above the height of 15 feet over plaint C schedule item. It was specifically undertaken in Ext.A2 that there shall not be any obstructions or hindrances to the vendors of the 2[nd] defendant to make use of the said pathway having a width of 15 feet up to a height of 15 feet. Therefore, from the conditions stipulated in Ext.A2 it is evident that the grant is controlled by certain conditions. The grant is limited to the pathway having a width of 15 feet and also the space above the said pathway up to a height of 15 feet. The title over the plaint C schedule pathway has been clearly retained by the vendor of the plaintiff. There is no restriction to the user of R.S.A.732 of 2015 -: 7 :- plaint C schedule pathway to the vendor of the plaintiff also. Therefore, the grant to the 2[nd] defendant is limited to the user of the pathway for having access from the road to plaint B schedule property and also from the plaint B schedule property back to the road as aforesaid through the pathway having a width of 15 feet and also the space above the said pathway up to a height of 15 feet. 12. Either the 2[nd] defendant or the first defendant has no manner of right to make any obstructions on the plaint C schedule pathway. Similar is the case with the plaintiff also. The plaintiff has also no manner of right or authority to make any constructions in the plaint C schedule pathway below the height of 15 feet. The lie of the plaint A schedule property, plaint B schedule property, and plaint C schedule property are clearly shown in Ext.C2(b) plan. Ext.C2(b) plan is appended with the decree. In Ext.C2(b) plan, the plaint C schedule pathway has been plotted as HIJKLMNOPQ plot. 13. The learned counsel for the appellant has invited R.S.A.732 of 2015 -: 8 :- the attention of this Court to the decision in _**Hero Vinoth (Minor) v. Seshammal** [(2006) 5 SCC 545]_ wherein it was held: _“It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. 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 S. 13. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under S. 13 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_ R.S.A.732 of 2015 -: 9 :- _terms of the grant restrict its user subject to any condition, the parties will be governed by those conditions.”(Emphasis supplied)_ 14. It is clear that an easement of grant being a matter of contract, the parties to the contract are bound by the terms by which the grant has been created. If the user of the grant is restricted or limited through conditions in the contract, the parties shall be governed by those conditions. In such case the user of the grant will be subject to those limitations or conditions imposed along with the grant. Here, in this case, it is evident that the grant is controlled by those conditions as well as those limits of user of the grant, which are specifically stipulated in Ext.A2. 15. Both the courts below have gone wrong in finding that the plaintiff has no title over plaint C schedule pathway. When it is only an easement, the title of the vendor of the plaintiff was there over plaint C schedule pathway also. He had retained title and thereafter he conveyed the plaint A R.S.A.732 of 2015 -: 10 :- schedule property, including plaint C schedule pathway to the plaintiff through Ext.A3 document. The plaintiff has also derived title over the plaint A schedule property including plaint C schedule pathway. At the same time the plaintiff has no manner of right to obstruct or restrict the user of the plaint C schedule pathway by the defendants, up to a height of 15 feet, above the plaint C schedule pathway. Matters being so, the impugned judgments and decrees require modification. In the result, this Second Appeal is allowed and the judgments and decrees passed by both the courts below are modified as follows: _“The title and possession of the plaintiff, over plaint A schedule item including plaint C schedule item, is declared. At the same time, the plaintiff shall have no right to obstruct or restrict the user of plaint C schedule pathway by the defendants or anybody claiming under them, below the height of 15 feet over plaint C schedule_ R.S.A.732 of 2015 -: 11 :- _pathway. The plaintiff has absolute right to make constructions over plaint C schedule pathway at the space above the height of 15 feet from the ground level of plaint C schedule pathway. The defendants shall have no manner of right to make any constructions or obstructions on either the plaint C schedule pathway or any other portions of plaint A schedule property. The plaintiff has also a right of user of plaint C schedule pathway, as a pathway. Ext.C2(b) plan is appended with the decree, and the same shall form part of the decree.”_ In the nature of this appeal, the parties shall bear their respective costs. All interlocutory applications in this appeal are closed. ## **Sd/- B. KEMAL PASHA, JUDGE.** ul/- // true copy // P.S. to Judge.