IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 7TH JULY 2011 / 16TH ASHADHA 1933 RSA.No. 596 of 2004() --------------------- AS.199/1999 of II ADDL. DISTRICT COURT, PALAKKAD OS.157/1994 of MUNSIFF COURT, ALATHUR .................... APPELLANTS/RESPONDENT/DEFENDANTS: ----------------------------------------------------- 1. LAKSHMIKUTTY, D/O. SULOCHANA. 2. HARIDAS, S/O. PARAPANA SIVARAMAN, BOTH ARE RESIDING AT MELE HOUSE, KADAKURUSSI, KANNADI AMSOM, PALAKKAD TALUK. BY ADV. SRI.V.CHITAMBARESH SRI.T.C.SURESH MENON SMT.M.R.VALSA SRI.SREEKANTH.K.R SMT.G.GEETHISHA RESPONDENT(S): APPELLANT/PLAINTIFF: ----------------------------------- M. CHANDRAN, S/O. MANIYAN, RESIDING AT MELE HOUSE, KANNANUR AMSOM ALATHUR TALUK, PALAKKAD DISTRICT. ADV. SRI.T.M.SUNIL FOR R1 SMT.S.CHITHRA FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.596 OF 2004 ............................................ DATED THIS THE 7th DAY OF JULY, 2011 JUDGMENT The dispute between the parties is with regard to a right of way provided under Ext.A1 partition deed. The respondents plaintiff would contend that as the western courtyard is kept common, providing that all the sharers are entitled to use it and a right of way is provided to the western common courtyard, through the northern courtyard, appellants who subsequently purchased the right over the northern courtyard, which was item No.34 of B schedule of Ext.A1 partition deed, they are not entitled to cause any obstruction in using the way. Under Ext.A1 partition deed, the common properties were divided, Schedule A was alloted to Mayandi, schedule B to Kunju, and schedule C jointly to the respondent and Kesavan. Appellants are the legal heirs of Kesavan. Item No.18 of A schedule, item No.35 of B schedule and item No.8 of C schedule is the common courtyard. Item No.34 of RSA 596/2004 2 B schedule is the northern courtyard, which was exclusively alloted to Kunju. But, in item No.35 of B schedule, it is specifically provided that A schedule and B schedule sharers are entitled to use the way through item No.34 of B schedule and Kunju, the B sharer shall not cause any obstruction. Plaint schedule property is item No.34 of B schedule. Subsequent to Ext.A1 partition deed, Kunju transferred his rights over the plaint schedule property as well as his rights in item No.35 of B schedule, which is the common courtyard to Kesavan. Subsequently, Kesavan and respondent entered into Ext.A4 partition, whereunder C schedule properties alloted to them under Ext.A1 were divided and the rights of Kesavan was released to the respondent. Respondent instituted the suit seeking a decree for injunction contending that appellants are causing obstruction to the way available to him, over the plaint schedule property, contending that appellants are not entitled to cause any obstruction to use the way through plaint schedule property, to go to the RSA 596/2004 3 house, to the eastern paddy fields or to the kattakkalam on the west. Appellants resisted the suit contending that the description of the property is not correct and properties are to be identified and the right of way provided under Ext.A1 is to be appreciated taking into consideration the subsequent events. It was contended that as the way provided through the plaint schedule property is not necessary, in view of other ways being available and respondent is not entitled to the decree sought for. 2. Learned Munsiff, on the evidence of PW1, DW1, Exts.A1 to A5, B1 to B8 and C1 to C4 found that the plaint schedule property is item No.34 of B schedule in Ext.A1 partition deed and its identity is established. Learned Munsiff also found that item No.35 is the same common courtyard which was alloted to both under A schedule and C schedule and the right of way provided to the common courtyard is through the plaint schedule property and appellants are not entitled to cause any obstruction to the respondent using the way. RSA 596/2004 4 But relying on Section 21 and 28 of Indian Easement Act, learned Munsiff held that respondent could use the way only for the properties which were divided under Ext.A1 and not for the properties acquired by the respondent subsequently. Learned Munsiff found that the house where the respondent is residing was constructed in a property purchased by him later and the kattakkalam which lies on the west was also purchased by the respondent subsequently and therefore respondent cannot use the way provided under Ext.A1, for the enjoyment of those properties and hence dismissed the suit. The respondent challenged the judgment before District Court, Palakkad in A.S.199 of 1999. Learned District Judge, on re-appreciation of the evidence without specifically considering Section 21 or 28 of Indian Easement Act found that learned Munsiff did not properly appreciate the relevant clause in Ext.A1. Learned District Judge found that the way provided under Ext.A1 is not restricted to the properties divided thereunder and was intended for the use of the sharers, without limiting it to the properties RSA 596/2004 5 divided thereunder. The learned District Judge allowed the appeal and granted a decree restraining appellants from causing obstruction to the respondent using the plaint schedule property as a way. It is challenged in the second appeal. 3. Appeal was admitted formulating the following substantial question of law. “When an easement by way of grant is controlled by the terms of the grant which, in this case, is available only to the property covered by Ext.A1 partition deed, is the lower appellate court, in reversal of the decree of the trial court, justified in granting a right of way to the plaintiff not to reach the plaint schedule property, but to reach the plaintiff's house which is further south of the plaint schedule property and is not covered by Ext.A1 partition ?”. 4. Learned counsel appearing for appellants and respondent were heard. 5. The argument of the learned counsel appearing for appellants is that first appellate court did not consider the contentions raised by RSA 596/2004 6 the appellants, which was upheld by the trial court relying on Section 21 and 28 of the Indian Easement Act. It was argued that the way provided under Ext.A1 over the plaint schedule property is only for the enjoyment of the properties divided under Ext.A1 and the said right is subject to the restriction provided under Section 21 of Indian Easement Act. The argument is that even if respondent is entitled to use plaint schedule property, as a way to reach the properties alloted to him under Exdt.A1 partition deed, he is not entitled to use the way to reach the properties which he acquired subsequently, including the house where he resides. Learned counsel would vehemently argue that as is clear from Ext.C2 plan, the respondent is residing to the south-west of the common courtyard and though there were houses on the east of the house of the appellants, which are shown as house unoccupied and basement in Ext.C2 plan, they are now not being used and the rights of Mayandi over the property where the basement is shown, was purchased by the respondent later and RSA 596/2004 7 the nilam which lies further to the east was acquired by the respondent subsequently, as PW1 admitted that all the paddy fields now being cultivated by him were acquired subsequent to Ext.A1 and there is a way on the east, another way on the west and south and therefore there is no necessity for the respondent to use the way over the plaint schedule property to reach the property subsequently acquired by him and even otherwise, the right of easement available can be used only within the limit provided under Section 21 of the Indian Easement Act and therefore the first appellate court was not justified in reversing the decree. 6. Learned counsel appearing for respondent pointed out that though under Ext.A1 partition deed, the plaint schedule property was alloted to Kunju, it was subsequently acquired by the appellants and when Ext.A1 provides that both A and C schedule sharers are entitled to use the plaint schedule property, to reach the western courtyard which was kept common, appellants are not entitled RSA 596/2004 8 to contend that respondent is not entitled to use the common courtyard for entering the courtyard either from the east or west or south and therefore the right available to the respondent cannot be restricted by applying Section 21 of the Indian Easement act. Learned counsel argued that first appellate court rightly granted a decree and there is no reason to interfere with the decree. 7. The fact that the plaint schedule property is item No.34 of B schedule alloted to Kunju under Ext.A1 partition deed was concurrently found by the trial court and the first appellate court. Though the learned counsel appearing for appellant argued that plaint schedule property is not the one demarcated by the Commissioner in Ext.C2 plan, that factual finding which is in accordance with the evidence cannot be challenged. Moreover, when the boundaries of item No.35 of B schedule to Ext.A1, along with the boundaries shown in item No.8 of C schedule and item No.18 of A schedule is taken into consideration, the common courtyard could only be to the south of item No.34 of plaint B schedule RSA 596/2004 9 property, which could only be the plaint schedule property as demarcated by the Commissioner and found by the courts below. 8. Ext.A1 partition deed establishes that the western courtyard was kept common. It is the very same item alloted as item No.18 of A schedule, item No.8 of C schedule and item 35 of B schedule. The right of way, provided under Ext.A1 is not in the body of the partition deed. It is provided in item No.35. A proper appreciation of Ext.A1 would establish that item No.34 of B schedule was alloted to Kunju. It is clear that after showing item No.35, which was also shown as item No.18 of A schedule and item No.8 of C schedule, it was specifically provided that both A sharer and C sharers are entitled to use item No.34 of B schedule as a way. Though the learned Munsiff found that the way so provided over item No.34 of B schedule is for the remaining properties, as rightly found by the first appellate court, it cannot be so. If the way through item No.34 of B schedule is provided for the remaining properties RSA 596/2004 10 divided under Ext.A1, it would have been shown in the body of the document and not in item No.35 restricting the use for the purpose of item No.35. It is clear that it was provided for the benefit of the common courtyard which was alloted to all the sharers as item 18 of A schedule, item 35 of B schedule and item 8 of C schedule. Hence the dominant heritage could only be the common courtyard and the servient tenament, item No.34 of B schedule property viz, the plaint schedule property. When item No.35 of the B schedule property to Ext.A1 partition deed was kept common, and respondent to whom C schedule property was allotted along with Kesavan, the predecessor in interest of the appellants who subsequently released his rights under Ext.A4 partition deed in favour of the respondent, respondent is definitely entitled to use the plaint schedule property as a way to reach the common courtyard. Appellants are not entitled to contend that respondent is not having any right to use the plaint schedule property from his other properties. The rights so RSA 596/2004 11 granted under Ext.A1 partition deed cannot be defeated either on the ground that respondent has acquired other way, or he has alienated portions of the property allotted to him under Ext.A1 or acquired properties subsequent to Ext.A1. So long as respondent is entitled to use the common court yard, for any legitimate purpose for which a courtyard could be used, respondent is entitled to use the way over the plaint schedule property, to reach the common courtyard and also from the common courtyard, to any other place. Appellants contended that respondent is not entitled to reach the common courtyard and then to proceed from the courtyard to his house, acquired later or to the Kattakalam acquired later or the paddy field on the east and therefore respondent is not entitled to the decree granted. When under Ext.A1 a right is granted to the respondent to use the plaint schedule property to reach the common courtyard, appellants are not entitled to cause any obstruction to the said use. The only question is whether section 21 of the Indian Easements Act RSA 596/2004 12 affects the said right. Section 21 of the Act reads:- “21.Bar to use unconnected with enjoyment:- An easement must not be used of any purpose not connected with the enjoyment of the dominant heritage.” 9. The argument of the learned counsel appearing for the appellants is that the right of way provided under Ext.A1 is to enable the shareholders to benefit only the remaining properties. It is the argument that once portions of the properties allotted under Ext.A1 were alienated and other properties were acquired, respondent is not entitled to use the plaint schedule property as an access to the said subsequently acquired properties. When the provision in Ext.A1 is properly appreciated, it could only be found that the dominant heritage is the common courtyard which was kept common to be used by all the shareholders. The provision for RSA 596/2004 13 way over the plaint schedule property cannot be for the remaining properties alone as canvassed by the appellants. So long as the western courtyard is a common courtyard, each of the shareholders to whom the common courtyard is allotted is entitled to use the northern courtyard which is the plaint schedule property. But they shall not cause any nuisance or disturbance to appellants. When respondent is entitled to use plaint schedule property as an access to the common courtyard and the common courtyard could be used for any legitimate purpose for which a courtyard could be used, respondent is entitled to reach the common courtyard from any other place, including the properties subsequently acquired. If it is so understood, appellants cannot contend that respondent is not entitled to use the plaint schedule property to reach the common courtyard or to reach the other destinations from the common courtyard, so as to attract Section 21 of the Act. Section 21 of the Easement Act could have been applied and respondent could have been restrained RSA 596/2004 14 from using it, not connected with the enjoyment of the dominant heritage, if the dominant heritage contemplated under Ext.A1 is all the remaining properties as canvassed by the appellants. When Ext.A1 shows that the properties were divided by an agricultural family and the northern courtyard was exclusively allotted to one sharer, the western courtyard was kept common so as to enable all the sharers to use the same. If that be the case, the common courtyard could be used by any sharer for any legitimate purpose for which the courtyard could be used. The right of way cannot be restricted to the usage of the courtyard only to reach the properties divided under Ext.A1. In such circumstances, I find no substance in the argument of the learned counsel appearing for the appellants that respondent is not entitled to use the plaint schedule property from the residential house of the respondent or the eastern nilam or the western Kattakalam. At best it could be said that respondent is not entitled to use the plaint schedule property, as a passage from the Kattakalam RSA 596/2004 15 to the eastern nilam or from the eastern nilam to the house. But the respondent is entitled to use the plaint schedule property as a way to reach the common courtyard from any of these places. In such circumstances the decree granted by the first appellate court warrants no interference. Appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE lgk/tpl/-