IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 RSA.No. 241 of 2011() --------------------- AS.135/2007 of PRL.SUB COURT,IRINJALAKUDA OS.275/2006 of MUNSIFF COURT, CHALAKUDY .................... APPELLANTS/RESPONDENTS/COUNTER CLAIM RESPONDENTS/PLAINTIFFS: -------------------------------------------------------------------- 1. KUNHANNAM, W/O.MALAPPAN CHAKKAPPAN, KAVANAD, MATTATHUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680684. 2. LONAPPAN, S/O.MALAPPAN CHAKKAPPAN, KAVANAD, MATTATHUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680684. 3. ANTHONY, S/O.MALAPPAN CHAKKAPPAN, KAVANAD, MATTATHUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680684. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENT(S): APPELLANTS/COUNTER CLAIM PETITIONERS/DEFENDANTS -------------------------------------------------------------- 1. PATHROSE, S/O.LONAPPAN, AROTHA HOUSE, KAVANAD DESOM, MATTATHUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680684. 2. THOMAN, S/O.LONAPPAN, AROTHA HOUSE, KAVANAD DESOM, MATTATHUR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680684. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.241 OF 2011 --------------------------------------------- Dated 6th April, 2011 JUDGMENT Plaintiffs in O.S.275/2006 on the file of Munsiff court, Chalakudy are the appellants. Respondents are the defendants. Appellants instituted the suit seeking a decree for declaration that they are the owners of 2 kole width of way described in B schedule property and respondents are not entitled to enclose the same, by constructing a fence or causing any interference in using that way for taking vehicles to the plaint A schedule properties and for a permanent prohibitory injunction. Respondents raised a counter claim and sought a decree in respect of plaint C schedule property shown in the RSA 241/11 2 counter claim. The relief sought for in the counter claim is a declaration that they have a right of easement by grant, over the counter claim C schedule way to reach A and B schedule properties from the northern Panchayath road and for a permanent prohibitory injunction restraining appellants from causing any obstruction and a mandatory injunction to remove the obstruction caused. Plaint A schedule properties are the properties allotted under Ext.A1 partition deed, whereunder item No.s 1 and 2 of plaint B schedule properties were allotted to Chakkappan. Item No.1 of the plaint schedule property is item No.1 of plaint B schedule properties which lies immediately to the south of the northern tarred road. Southern boundary of item No.1 of plaint B schedule property in Ext.A1 is “edavazhy” and to its south is item RSA 241/11 3 No.2 therein. Item No.2 of plaint A schedule properties is item No.2 of B schedule of Ext.A1. Eastern boundary of item No.1 of the plaint schedule properties as well as the southern boundary of item No.1 of plaint B schedule property, is “edavazhy”. Similarly northern boundary of item No.2 of plaint schedule property is “edavazhy”. Case of the appellants in the plaint is that “edavazhy” which lies immediately to the east of item No.1 of plaint A schedule properties belongs to the respondents and the property which lies immediately to its east is a way belonging to the appellants and it is having a width of 3 kole. Case is that appellants have been using the said 3 kole width of way along with its western 2 kole width, for taking vehicles to plaint A schedule items 1 and 2 properties and respondents have no right to cause any RSA 241/11 4 obstruction to that way by enclosing 2 kole width of way by constructing a fence. It is on this allegation that respondents are attempting to cause obstruction to the use of the eastern two kole width of way, a decree for declaration and injunction was sought for by the appellants. Respondents would contend that the way which starts from the northern road, runs towards the south along the eastern boundary of item No.1 of plaint A schedule properties and on the southern boundary of item No.1 of plaint A schedule properties, it runs towards the west and reaches the properties of the respondents, which are shown as item No. 1 and 2 of the counter claim A schedule properties. Respondents would contend that though the way was originally having a width of 2 feet, appellants wanted to widen the way to a width of 4 koles and respondents agreed for the RSA 241/11 5 same provided, the way which lies in between item No.1 and 2 of the plaint A schedule properties is also widened to that extent and under Ext.B1 agreement, it was agreed to widen the way which starts from the northern public road and runs towards the south to item No.2 of plaint A schedule property and then deviates from that said way and runs towards the west and reaches item No.1 and 2 of plaint A schedule property in the counter claim and since then both appellants and respondents have been using that way and respondents have right of easement by grant over the C schedule way shown in the counter claim. 2. Learned Munsiff on the evidence of PW1, Dws.1 to 6, Exts.A1, A2, B1 and B2, C1 to C2(a) dismissed the suit as well as counter claim. Learned Munsiff refused to rely on Ext.B1 holding that easement by grant can only RSA 241/11 6 be by a registered document and as Ext.B1 is not registered, based on Ext.B1 respondents are not entitled to the counter claim. Appellants challenged the judgment dismissing the suit in A.S.137/2007 and respondents challenged dismissal of the counter claim in A.S.135/2007. Learned Sub Judge on re-appreciation of the evidence found that for creating an easement by grant, a registered document is not mandatory and therefore, learned Munsiff is not justified in not relying Ext.B1. Learned Sub Judge on re- appreciation of the evidence found that the original way which was existed having width of 2 kole was subsequently widened as provided under Ext.B1 and that way is being used by the appellants and respondents. Learned Sub Judge found that respondents are therefore entitled to a declaration of right of way by easement of grant over counter claim C schedule way. RSA 241/11 7 A.S.135/2007 was allowed and a decree declaring the right of way over plaint C schedule property by grant was allowed. Appellants were directed to remove the obstructions caused in that way. A.S.137/2007 was dismissed. Appeal is filed by the appellants challenging the judgment in A.S.135/2007. No appeal was so far filed as against the judgment in A.S.137/2007. 3. Learned counsel appearing for the appellants was heard. 4. Argument of the learned counsel appearing for the appellants is that though Ext.A1 shows that eastern boundary of plaint A schedule property is “edavazhi”, its width is not shown and similarly the way which lies in between item No.1 and 2 of plaint A schedule properties is “edavazhi” and its width is also not shown and Ext.B1 relied on by the respondents shows that the way was originally RSA 241/11 8 having a width of only two koles and it was agreed to be widened into 4 koles width under Ext.B1. Learned counsel would argue that a proper reading of Ext.B1 would show that it was only to widen the way which starts from the northern public road and runs towards the south and not the portion of the way which leads from that way towards the west and reaches the property of the respondents and therefore, first appellate court erred in granting the decree based on Ext.B1. Learned counsel would argue that description of the counter claim C schedule property shows that northern and southern boundary are not the eastern way and hence its width could only be two koles. Learned counsel subsequently did not press the said argument. Learned counsel also argued that when all the share holders under Ext.A1 are not parties to the suit, a RSA 241/11 9 decree declaring right of easement by grant should not have been granted and therefore, the judgment of the first appellate court is unsustainable. 5. As the appeal is only against the judgment in A.S.135/2007 namely, the decree granted in the counter claim in the first appeal filed by the respondents, it is not necessary to consider the contentions of the appellants in the suit. The only question for consideration is whether respondents have established a right of easement by grant over counter claim C schedule way. 6. It is under Ext.A1 appellants and respondents are claiming right over their properties. Ext.A1 shows that as B schedule, plaint schedule properties were allotted to the predecessor interest of the appellants. Boundaries of item No.1 of B schedule property RSA 241/11 10 in Ext.A1 show that the eastern and southern boundaries are “edavazhy”. Similarly northern boundary of item No.2 is “edavazhy” which is the southern boundary of item No.1 of plaint B schedule properties. It is the case of the appellants that the way which is shown as eastern boundary of item No.1 of plaint A schedule property starts from the northern road and it runs towards the south and reaches item No.2 of plaint A schedule properties. It is also not disputed that the way which lies in between item No.1 and 2 of plaint A schedule property, starts from the eastern way and proceeds towards west and reaches the properties of the respondents on the west of item No.1 and 2 of the plaint A schedule properties. Appellants are not disputing the right of way available to the respondents in between item No.1 and 2 of the plaint A RSA 241/11 11 schedule properties. The only dispute is with regard to the width of that way. The argument of the learned counsel is that by Ext.B1, the way which was widened is only the way which lies to the east of item No.1 and 2 of the plaint A schedule properties. On going through Ext.B1, copy of which is made available by the learned counsel, I cannot agree with the submission. Ext.B1 makes it absolutely clear that by that agreement appellants and respondents agreed to widen the way which was originally having a width of two koles to 4 koles providing that both the appellants and respondents have a right to use that way. Ext.A1 shows that the property allotted to the predecessor interest of the appellants is only item No.1 and 2 of the plaint A schedule properties and properties so allotted is the property which lies to the west of the existing RSA 241/11 12 way. Therefore, the way which was widened under Ext.B1 could only be by including a portion of item No.1 of the plaint A schedule properties, which lies to the west of the then existing way. Though appellants raised a contention that the way was widened to 5 koles width, by adding the eastern way which was having a width of 3 kols and that way exclusively belonged to the appellants, when Ext.A1 shows that the property allotted to the appellants is only to the west of that way, the case cannot be accepted. If that be so, by Ext.B1 agreement when the parties agreed to widen the existing way, the way which was agreed to be widened is the way which starts from the northern tarred road and runs towards the south through the eastern boundary of the plaint A schedule properties and deviates to the west through the southern boundary of item No.1 and the northern boundary RSA 241/11 13 of item No.2 of plaint A schedule properties and reaches the properties of respondents. If that be so, the findings of the first appellate court that by Ext.B1 respondents were granted an additional way, having a width of two koles, by the appellants is perfectly correct. Ext.A1 shows that respondents have a right of way, which lies to the eastern boundary of item No.1 of plaint A schedule properties and it proceeds towards west in between item No.1 and 2 and that way is having a width of 2 koles as claimed by the appellants. It is that way which was widened into a way of 4 koles width. The additional width of 2 koles was provided by the appellants as provided under Ext.B1. Question is whether right of easement by grant could be given only by a registered document. 7. Right of easement is only a right to use the property of the survient tenement RSA 241/11 14 by the owner of the dominent tenement. It is not the law that right of easement could be granted only by a registered document. Right of easement by grant, could even be granted orally. Only if the right of easement by grant, is to be transferred to another, it could only by a registered document, provided the value of the rights so transferred exceeds value of Rs.100/-. As right of easement by grant cannot be transferred, it can be transferred only along with the dominent tenement. When its value exceeds Rs.100/- transfer could only be by registered document. Hence such transfer can only be by a registered document. But that does not mean that right of easement by grant can only be by a registered document as found by the learned Munsiff. First appellate court rightly found that Ext.B1 creates right of easement by grant. When the decree sought for RSA 241/11 15 is to declare the right of easement so granted by the appellants, it is not necessary that in that suit all share holders of Ext.A1 are necessary parties. In such circumstances, I find no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.