IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 907 of 2009()
1. MELAPATH KADEEJA, D/O.MAMMU,
... Petitioner
2. KOVVAPRATH PUTHIYAPURAYIL AHISHABI,
Vs
1. P.ABDUL RAHIMAN, S/O.MUHAMMAD HAJI,
... Respondent
For Petitioner :SRI.K.C.SANTHOSHKUMAR
For Respondent :SRI.N.NAGARESH
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :18/01/2010
O R D E R
THOMAS P.JOSEPH, J.
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R.S.A. NO.907 of 2009
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Dated this the 18th day of January, 2010
J U D G M E N T
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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
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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
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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
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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
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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
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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
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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.
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(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