Robert v. Christa Babu

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 4[TH] DAY OF JANUARY 2022 / 14TH POUSHA, 1943 RSA NO. 290 OF 2017** **AGAINST THE DECREE AND JUDGMENT DATED 14.07.2016 IN AS 165/2016 OF ADDITIONAL DISTRICT COURT, NEYYATTINKARA AGAINST THE DECREE AND JUDGMENT DATED 20.02.2014 IN OS 57/2010 OF PRINCIPAL MUNSIFF COURT, NEYYATTINKARA** ## **APPELLANT/APPELLANT/1ST DEFENDANT:** ROBERT, AGED 31 YEARS, S/O.SOMAN, ELAKKARA VEEDU, NEUVANKUNNU, KALLIMOODU, VELLARADA DESOM, VELLARADA VILLAGE. BY ADV SRI.R.GOPAN ## **RESPONDENT/RESPONDENT/PLAINTIFF:** CHRISTA BABU, AGED 43 YEARS, S/O.NELSON, ELAKKARAPUTHEN VEEDU, NEDUVANKUNNU, VELLARADA DESOM, VELLARADA VILLAGE BY ADV SMT.K.P.SANTHI THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 04.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **RSA NO.290 of 2017** **2** ## **CR** ## **K.BABU, J.** ------------------------------------------- ## R.S.A. No. 290 of 2017 --------------------------------------------- Dated this the 4[th] day of January, 2022 ## **JUDGMENT** Defendant No.1 in O.S.No.57/2010 on the file of the Principal Munsiff's Court, Neyyattinkara, is the appellant. The plaintiff is the respondent. 2. The plaintiff instituted the original suit for a declaration that he has title and possession over 'C' schedule property and for a permanent prohibitory injunction to restrain the defendants from trespassing upon the property. 3. In 2004, the plaintiff acquired 20 cents of land in Re.Sy.No.238/3 of Vellarada Village. He sold out 7 cents of land from this 20 cents to defendant No.3. The remaining 13 cents is in the ownership and possession of the plaintiff. This 20 cents of land is described as 'A' schedule in the plaint . The 7 cents of land alienated to defendant No.3 is described as 'B' schedule. The remaining 13 cents is described in the plaint as 'C' schedule property. The plaintiff pleaded that the eastern boundary of 'C' schedule property is a row of stones. Plaint 'B' schedule property **RSA NO.290 of 2017** **3** is located at a distance of 1.5 metres towards the west of the above said row of stones. Defendant Nos. 1 to 3 are residents in the properties situated on the north and south of plaint 'C' schedule property. Defendants access Kiliyoor-Kallimoodu public road through different ways. Defendants made an attempt to demolish the barbed wire fencing erected on the north boundary on the plaint 'C' schedule property and cut open a way through it. 4. Defendants resisted the suit, contending that there exists a 4 feet wide way having an approximate length of 145 metres through the northern and eastern sides of plaint 'C' schedule property, from Kiliyoor road up to the bund of the water channel on the west of plaint 'C' schedule property. According to the defendants, this way has been used by the local people to bring cattle to the water channel and transport manure to the wetland for 35 years. The attempt of the plaintiff is to convert the plaint 'C' schedule property and the adjoining properties into a single plot and close the way. 5. During the trial, PW1 was examined and Exts.A1 to A3 were marked on the side of the plaintiff. On the side of the defendants, DWs 1 and 2 were examined. Exts.C1 to C3 series were marked as Court Exhibits. **RSA NO.290 of 2017** **4** 6. The Trial Court decreed the suit, declaring that the plaintiff has title and possession over plaint 'C' schedule property and restrained the defendants by way of permanent prohibitory injunction from trespassing into the plaint 'C' schedule property, from cutting open a new way to 'C' schedule property, and from committing any acts of waste in the plaint schedule properties. The Court also allowed the plaintiff to restore the iron barbed wire fencing on the northern side of the plaint 'C' schedule property. Defendant No.1 challenged the decree and judgment of the Trial Court in A.S.No.165/2016 before the First Appellate Court. As per judgment dated 14.07.2016, the First Appellate Court confirmed the judgment and decree of the Trial court. 7. Defendant No.1 is in appeal before this Court invoking Section 100 of CPC. 8. After hearing both sides, this Court reformulated the substantial question of law as follows:- “Having found the indications of the existence of a way through the 'C' schedule property, were the Courts below justified in granting the decree of prohibitory injunction in respect of the entire 'C' schedule property without resorting to the doctrine of lost grant?” **RSA NO.290 of 2017** **5** 9. Heard Sri.R.Gopan, the learned counsel appearing for the appellant/defendant No.1 and Smt.K.P. Santhi, the learned counsel appearing for the respondent/plaintiff. 10. The plaint 'A' schedule property is 20 cents of land in Re.Sy.No.238/3 in Vellarada Village. The plaintiff acquired title and possession over the property by virtue of Ext.A1, sale deed. He alienated the plaint 'B' schedule property to defendant No.3 by virtue of Ext.A2, sale deed. The remaining property has an extent of 13 cents ('C' schedule), which is the subject matter in this case. There is no challenge to the right, title and possession of the plaintiff over the plaint schedule property. The challenge of the appellant/defendant No.1 is that a way in the north-south direction exists on the eastern side of the plaint 'C' schedule property which is being used by the public including defendant No.1 to access the bund on the wetland lying on the western side. 11. The learned counsel for the appellant/defendant No.1 contended that as there is evidence of the existence of a way on the eastern side of 'C' schedule property, defendant No.1 has acquired the right to use the same. The learned counsel further contended that even if defendant No.1 has failed to plead and establish the right of easement as provided in Section 15 of the **RSA NO.290 of 2017** **6** Indian Easements Act, he is entitled to relief by applying the doctrine of “lost grant”. He relied on _**Varghese v. Jose Mathew @ Roy and Another [2014 KHC 3696]**_ to substantiate his contention. 12. _Per contra,_ the learned counsel for the plaintiff, Smt.K.P.Santhi, submitted that as the user of any portion of 'C' schedule property by the defendants in such a way as to mature the same into any form of right enforceable in law has not been established, the plaintiff is entitled to the relief of permanent prohibitory injunction as granted by the Court below. 13. The First Appellate Court, relying on Exts.C1 toC3 series Commission reports, observed indications of the existence of a pathway through the eastern and northern sides of plaint 'C' schedule property. The First Appellate Court further held that though there are indications of the existence of a pathway, there is no pleading and much less any evidence about the right of way of the defendants through any portion of 'C' schedule property identified by the Commissioner in Ext.C2(a) plan. The First Appellate Court in Paragraph 10 of the judgment observed thus:- “Even if it is taken for the sake of arguments that the defendants or any person of that locality had been using the row of stones on the eastern boundary of plaint C schedule property as a pathway, the absolute right of title and possession of the plaintiff over the whole plaint C schedule property cannot be curtailed unless it is shown that the user of any portion of that property by the defendants or any other persons had matured into any easement right **RSA NO.290 of 2017** **7** enforceable in law or any public right which the persons concerned could claim as of right. Therefore the lower Court cannot be found fault with for upholding the title and possession of the plaintiff over plaint C schedule property and granting the reliefs towards restoration of barbed wire fencing on the northern boundary of plaint C schedule property in addition to the reliefs of declaration of title and possession and permanent prohibitory injunction.” 14. The short question that falls for consideration is whether the principle of “lost grant” can be invoked in the facts of this case. Relying on _**Varghese v. Jose Mathew @ Roy and Another (supra)**_ , the learned counsel for the appellant/defendant No.1 contended that if it is proved that there is a pathway as alleged and also that it has been used for a long period, as a matter of right, the presumption is that the use of the way is as of right. The learned counsel vehemently argued that if the above ingredients are established, merely because Section 15 of the Easements Act, as such, is not attracted, it was not proper for the Court below to grant the relief of a permanent prohibitory injunction to the detriment of the right of defendant No.1. 15. The learned counsel for the plaintiff countered and submitted that the theory “lost grant” is in no way applicable to the facts of this case. 16. “Lost grant” is defined, in _**WORDS AND PHRASES, (West Publishing Co, Volume 25 A, Pages 413 & 414),**_ the book **RSA NO.290 of 2017** **8** ## containing Judicial Constructions and Definitions of Words and Phrases by the State and Federal Courts, as follows:- “The presumption of a “lost grant” is inherent in doctrine of title by “adverse possession”. [Itawamba County v. Sheffield, 13 So.2d 649, 651, 195 Miss.359]. In order for doctrine of “lost grant” to be applicable the possession must be under a claim of right, actual, open, and exclusive, and a chain of conveyances and payment of taxes are important. [U.S. v. Fullarad-Leo, Hawaii, 67 S.Ct.1287, 1295, 331 U.S. 256, 91 L.Ed. 1474.] The doctrine of “lost grant” was developed out of the mode of acquisition at common law, of a right to an incorporeal hereditament, obtained and secured by use and possession, exercised under a claim of right in an open, continuous fashion, a sufficient lapse of time raising the presumption that there must have originally been a grant from owner to claimant. [Draper v. Conner & Walters Co., 121 S.E. 29, 30, 187 N.C. 18.] The fction of a “lost grant” is merely a presumption, from the long possession and exercise of right by user of an easement with the acquiescence of the owner, that there must have been originally a grant to the claimant, which had been lost. It was called a “lost grant” not to indicate the fact of the existence of the grant originally was of importance, but to avoid the rule of pleading requiring profert. [Boyce v. Missouri Pac. R. Co., 68 S.W. 920, 922, 168 Mo. 583, 58 L.R.A. 442.]” (emphasis supplied) ## 17. In _**Corpus Juris Secundum, (Volume 2A, Pages 317**_ ## _**& 318)**_ , the learned author on the doctrine of “lost grant” comments thus: “ _Qualifications of rule._ The presumption of a lost grant, from lapse of time and possession and assertion of ownership, does not arise where all the circumstances are consistent with the nonexistence of the grant, or where the origin of a claim of title is known, and is inconsistent with the grant claimed, or where the claim is of such a nature as to be at variance with the supposition of a grant, and where **RSA NO.290 of 2017** **9** one enters under such a claim a different claim cannot thereafter be presumed as the basis of the occupancy. So, also, the presumption of a grant is unavailable where such title could not, by any legal possibility, have been acquired, as where the one against whom the land was held lacked the legal capacity to make an efective grant. It has been held, however, that the presumption of grant arising from prescription will not be defeated by infancy, coverture, or other personal disabilities of devisees of the original owner against whom the adverse possession began. The presumption of a lost grant is a rule of law adopted by the courts for the repose of the title of the person in possession. In theory, it is a legal fction intended to meet the difculty of contemplating the creation of a valid title to land by something other than a deed; it assumes a grant of the title asserted, and not the former existence of a deed which does not create or convey it. The presumption is intended to supply the place of positive proof, where an ancient title deed has been lost, or where a fact is to be established which occurred at so remote a period that no contemporary is living to testify as to its existence. It is justifed by the infrmity of human nature, the difculty of preserving muniments of title, and the public policy of quieting title by supporting long and uninterrupted possession and use, and is founded on the consideration that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an existing adverse title in, the party in possession.” (emphasis supplied) ## 18. In _**Halsbury's Laws of England, (Volume 6, 4[th] Edition,**_ ## _**Page 243, Para 593)**_ , the learned Author writes thus on the principles of doctrine of lost grant: ## **“593.Legal origins of grant essential.** A lost grant will not be presumed where such a grant would have been in contravention of a statue, unless it is merely a private Act the provisions of which may be subsequently waived. In the case of rights which can have no lawful beginning nor be created by any **RSA NO.290 of 2017** **10** kind of grant or reservation or deed that can be supposed, a prescription is not good. No user, however long, will establish a right which is unlawful in itself, whether the claim is by custom, prescription, or lost grant.” (emphasis supplied) 19. In **C.Periaswami Goundar v. Sundaresa Ayyar and others (AIR 1965 SC 516)** on the theory of lost grant the Apex Court held thus;- “10......... _The basis of this doctrine is clearly brought out by two judgments of the Judicial Committee. Lord Buckmaster, delivering the judgment in_ _**Bawa Magniram Sitaram v. Sheth Kasturbhai Manibhai, 49 Ind App 54: (AIR 1922 PC163)** observed:_ _“ At the lapse of 100 years, when every party to the original transaction has passed away, and it becomes completely impossible to ascertain what were the circumstances which caused the original grant to be made, it is only following the policy which the Courts always adopt, of securing, as far as possible quiet possession to people who are in apparent lawful holding of an estate, to assume that the grant, was lawfully and not unlawfully made”_ ## _**Viscount Sumner in Syed Muhammad Mazaffaralmusavi v. Bibi Jabeda Khatun and others 57 Ind App 125; (AIR 1930 PC 103)** said much to the same effect thus:_ _“The presumption of an origin in some lawful title, which the Courts have so often readily made in order to support possessory rights, long and quietly_ **RSA NO.290 of 2017** **11** _enjoyed, where no actual proof of title is forthcoming, is one which is not a mere branch of the law of evidence. It is resorted to because of the failure of actual evidence”_ _It is therefore, clear that the said principle can only be invoked where there is no acceptable evidence of the terms of the grant”_ 20. In _**Sri.Monohar Das Mohanta v. Charu Chandra Pal (AIR 1955 SC 228)**_ the Apex court held that to raise a presumption of lost grant necessarily, there should be a capable grantor and a capable grantee. 21. In _**Madayi Kunhiraman Nair and others v. Tharamel Kunhabdulla and others (2015 (4) KHC 587),**_ following a series of authorities, this Court held that a plea of immemorial user leading to the inference of a lost grant should be specifically raised. This Court also held that to apply the doctrine of lost grant, it is necessary to establish long, continuous and peaceful enjoyment of the property and it is a presumption made for securing ancient and continuous possession which could not otherwise be reasonably accounted for. 22. Analysis of the principles discussed above leads to the following conclusions: “Lost grant” is a legal fiction intended to **RSA NO.290 of 2017** **12** meet the difficulty of contemplating the creation of a valid title over land by something other than a deed. The fiction is merely a presumption, from the long possession and exercise of right by user of an easement with the acquiescence of the owner, that there must have been originally a grant to the claimant, which had been lost. In other words, lost grant is a presumption made for securing ancient and continuous possession which could not otherwise be reasonably accounted for. In order to raise a presumption of lost grant necessarily, there must be a capable grantor and a capable grantee. The presumption of lost grant does not arise where all the circumstances are consistent with the non-existence of the grant, or where the origin of a claim of title is known, and is inconsistent with the grant claimed. The presumption of a lost grant is unavailable where such title could not, by any legal possibility, have been acquired, as where the one against whom the land was held lacked the legal capacity to make an effective grant. There should be specific pleading with regard to immemorial user leading to the inference of a 'lost grant'. The presumption of lost grant can be rebutted by the evidence on the other side. 23. In the given case, it is most important that there is no **RSA NO.290 of 2017** **13** plea, from the part of the defendants, of immemorial user leading to the inference of lost grant. There is lack of pleading for making a claim based on the doctrine of lost grant. 24. There is no capable grantor and no capable grantee as far as the subject matter is concerned. There is no pleading to assume that a grant was lawfully made. There is nothing on record to presume an origin in some lawful title. The plaintiff could establish, by way of his pleadings and evidence, that any such grant that sought to be assumed, was impossible and totally absent. The defendants are hence not entitled to any relief in respect of plaint 'C' schedule property by invoking the theory of lost grant. The Court below rightly rejected the said claim. 25. While deciding _**Varghese v. Jose Mathew @ Roy and Another (supra),**_ the principles laid down by the Apex Court in _**C.Periaswami Goundar v. Sundaresa Ayyar and others (supra)**_ **and** _**Monohar Das Mohanta v. Charu Chandra Pal (supra)**_ were not brought to the notice of the learned single Judge. 26. On the existence of the indication of a way, it is to be noted that the people in the locality, including defendants, might have used 'C' schedule property to access the western wetland. It is quite natural that the people of this Country maintained habit **RSA NO.290 of 2017** **14** to make free use of neigbour's property left unenclosed without the least idea that they are doing so as a matter of right. In _**Narayana Shenoi v. Narayanan Kunjan [S.A.No.513/1955]**_ , this Court observed that it is quite consistent with the habits of the people of this country to make free use of the neigbour's property left unenclosed without an intention to use the same as a matter of right. On the other hand, it is being done as a matter of convenience to which no objection is generally taken by the people of this country. This Court in **Narayana Shenoy's case (supra)** held that a mere period of long user would not give rise to any presumption that such user was as a matter of right. Such user, even if it had continued uninterrupted for the full period required by Section 15 of the Easements Act, is not sufficient in itself to create a right of easement by prescription, the reason being that the important element that the user was as a matter of right cannot be said to have existed . 27. In _**Shiva Temple of Poovathur Panniprayar Devaswom Board v. Parameswaran Pillai and others [2010 (2) KHC 722]**_ , this Court held that, persons, including adjacent property owners, walking hither and thither along an open property would not accrue any right by such walking so long as such usage is without **RSA NO.290 of 2017** **15** any right, especially when such properties are left open without fencing and such user would neither reduce the right of the titleholder nor confer on anyone the right to get an injunction. The resultant conclusion is that defendant No.1 is not entitled to invoke the doctrine of “lost grant” in the present facts of this case. This Court finds no reason to interfere with the impugned judgments. The Regular Second Appeal lacks merit and it stands dismissed. The parties are directed to bear their respective costs. **Sd/K.BABU JUDGE** VPK