IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 RSA.No. 393 of 2011() --------------------- AS.50/2009 of SUB COURT,KOCHI OS.187/2008 of PRINCIPAL MUNSIFF COURT, KOCHI .................... APPELLANT (S): APPELLANTS/DEFENDANTS: ---------------------------------------------------------------------- 1. RAFEEK, AGED 52 YEARS, S/O.UMMER, RESIDING AT CC.7/1080 A, DARUSALAM ROAD, KAPPALANDIMUKKU, KOCHI - 2. 2. RAMLA RAFEEK, AGED ABOUT 48 YEARS,W/O. RAFEEK, RESIDING AT CC.7/1080 A, DARUSALAM ROAD, KAPPALANDIMUKKU,KOCHI-2. 3. YASAR ARAFATH, AGED ABOUT 30 YEARS,S/O. RAFEEK, RESIDING AT CC.7/1080 A, DARUSALAM ROAD, KAPPALANDIMUKKU,KOCHI-2. 4. SHANAWAS, AGED ABOUT 28 YEARS,S/O. RAFEEK, RESIDING AT CC.7/1080 A, DARUSALAM ROAD, KAPPALANDIMUKKU,KOCHI-2. 5. SAMJAD, AGED ABOUT 24 YEARS,S/O. RAFEEK, RESIDING AT CC.7/1080 A, DARUSALAM ROAD, KAPPALANDIMUKKU,KOCHI-2. 6. IYSHA NAZAR, W/O. NAZAR, RESIDING AT CC.7/1080 A, DARUSALAM ROAD, KAPPALANDIMUKKU,KOCHI-2. BY ADV. SRI.P.SATHISAN RESPONDENT(S): RESPONDENT:PLAINTIFF: ------------------------------------------------------------------- MOHAMMED ASHRAF, AGED 51 YEARS, S/O. ZAINUDEEN, RESIDING AT CC.7/1080 B, DARUSALAM ROAD, KAPPALANDIMUKKU, KOCHI - 2. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J ........................................... RSA .NO. 393 OF 2011 ............................................ DATED THIS THE 28th DAY OF MARCH, 2011 JUDGMENT Defendants in O.S.187 of 2008 on the file of Munsiff Court, Kochi are the appellants. Plaintiff is the respondent. Respondent instituted the suit seeking a decree for mandatory and prohibitory injunction contending that plaint A schedule property belongs to him under Ext.A4 sale deed and the property originally belonged to Kerala Jamaath Trust, Mattancherry and it was sold to M.A.Shamsu and his brothers by the Jamaath under Ext.A1 sale deed in 1994 and they constructed the building and were residing therein and while so, Shamsu and others sold the property to Abdul Jabbar under Ext.A2 assignment deed in 1997 and he constructed compound walls on the east, south and north and the residential building is facing north and gate is installed in the northern compound wall facing to the northern pathway and Abdul Jabbar later sold the property to Smt.Hafishat under Ext.A3 assignment deed and while the Kerala Jamaath Trust assigned the property, a way was granted on the northern side of plaint A RSA 393/2011 2 schedule property for the ingress and egress and the pathway is having a width of 6 links and appellant and the predecessor were using the same as an easement right by grant and had taken water connection, electric connection and telephone connection through that pathway. On the eastern side of the pathway, there was a compound wall separating the pathway and that pathway is plaint B schedule property which terminates on the southern side of the property of the 6th respondent who purchased the property from the vendor, who in turn purchased it from the Kerala Jamaath Trust. Sixth respondent constructed the gate on the southern extremity of B schedule property from their property and the appellants 1 and 2 are owners of the property on the southern side of the property of 6th respondent who also purchased the property from the same Trust. The Trust has provided separate pathway to them on the eastern side of the plaint B schedule property, which is having 6 feet width and it is separated from the B schedule property by a compound wall. Appellants 3 to 5 are the children of appellants 1 and 2. The respondent and appellant jointly demolished the compound wall of the eastern side of B schedule property in order to increase the RSA 393/2011 3 width of the pathway and the pathway is now having a width of 12 links. It is contended that appellants have no right to cause any obstruction to that pathway and as they constructed the pillar to put up a gate to cause obstruction, respondents sought decree for mandatory injunction to remove the gate and a permanent prohibitory injunction not to interfere with the right of the respondent to use the way. 2. Appellant resisted the suit contending that there was a 19 links pathway on the north of A schedule property and the 6 links wide pathway on its east and the eastern pathway were mainly provided for the ingress and egress of the predecessor of 3.425 cents of land, Abdul Jabbar and his wife and there is a gate on the north-eastern corner of the said pathway and due to the extension of the northern pathway, Shamsu and brothers constructed a compound wall excluding 6 links pathway in 1995 and thus the pathway was completely blocked by the predecessor of the respondent and therefore respondent has no right to use the pathway. It is also contended that on the east of the plaint B schedule property, there was a wall to separate another pathway lying on the east owned by respondents 1 and 2 and that RSA 393/2011 4 pathway was used by them for their ingress and egress and appellant never exercised a right of way over plaint B schedule property since the purchase of property in 2001 and about four years back, appellants demolished the wall situated in between plaint B schedule property and the eastern pathway and widened the same and respondent did not raise any objection and therefore appellants are using it exclusively and respondent is not entitled to the decree sought for. 3. Learned Munsiff, on the evidence of PW1, DWs 1 and 2 and Exts.A1 to A7, B1 to B4, C1 and C1(a), found that respondent has a right of way by easement of grant over plaint B schedule way and that right has not been lost as provided under Section 38 of Indian Easement Act as claimed by appellants and therefore granted the decree as sought for. Appellant challenged it before Sub Court, Kochi in A.S.50 of 2009. Learned Sub Judge, on reappreciation of evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in this second appeal. 4. Learned counsel appearing for appellant was heard. The argument of learned counsel is that plaint B schedule property RSA 393/2011 5 lies to the east of plaint A schedule property and admittedly there exist a compound wall separating B schedule property from A schedule property and plaint B schedule property was added to the way available to appellants which lies immediately to its east and four years prior to the institution of the suit, the compound wall which was separating plaint B schedule property from the eastern way was demolished and the eastern way was united with plaint B schedule way. Respondent did not raise any objection and nature of the way was changed and respondent has thereby lost his right if any. It was argued that as the respondent has a right of way to the northern way through the north eastern extremity of his property, there was no necessity to enter into plaint B schedule property or to use it as a way and construction of the compound wall separating B schedule property from A schedule property prove that respondent had impliedly surrendered the right to use plaint B schedule way and therefore courts below should not have granted the decree. 5. Plaint A schedule property as well as property of the respondents admittedly originally belonged to the same Trust. While under Ext.A1, plaint A schedule property was transferred RSA 393/2011 6 by first appellant in favour of the predecessor in interest of the respondent, plaint B schedule property was granted as a way. On that aspect, there is no dispute. By the subsequent transfer, respondent obtained title to plaint A schedule property including the right of way provided over plaint B schedule way. While assigning the property in favour of respondents, a way which lies to the east of the plaint B schedule property was granted. Both plaint B schedule way and the eastern way is having a width of six feet each. There admittedly existed a compound wall separating plaint B schedule way and the eastern way. Even according to the appellants, that compound wall was demolished only four years prior to the institution of the suit. Their only case is that respondent did not raise any objection at that time. The case of respondent is that the eastern way was added to plaint B schedule property with his consent and by that act, width of the way has been widened including the width of B schedule way and the eastern way. The question is whether by such widening, the nature of the way has been changed as argued by learned counsel for the appellants. 6. As rightly found by the courts below, by widening the RSA 393/2011 7 existing way, nature of the way is not changed. Plaint B schedule way continues to exist though by adding the eastern way, the width of the pathway has been widened. Therefore, argument of the learned counsel for appellant that by change of nature of the way, right of easement by grant available to respondent has been lost, cannot be accepted. 7. Section 38 of Indian Easement Act provides that easement is extinguished when the dominant owner released it, expressly or impliedly to the servient owner. The servient owner is admittedly the Trust. Appellants have no case that they obtained title to the B schedule property. They have also no case that they obtained title to the way which lies to the east of B schedule way as even according to them, it continues to be a way granted by the Trust. Therefore, if the argument of appellants is to be accepted and there was an extinguishment of right of easement by way of grant, there should be evidence to prove that respondent, who is admittedly the dominant owner released that right to the servient owner, the Trust. There is no such case. Though learned counsel argued that occupier of the servient owner could also be a servient owner, the right given to RSA 393/2011 8 respondents is only a right to use that way and not to occupy the way. Therefore appellants cannot claim that they are the servient owners. They are only the dominant owners of the way which lies to the east of plaint B schedule property and not the servient owner. There is no case that there was any express surrender of the right by respondent, though it is contended that by not using that way, right has been extinguished. Explanation II of Section 38 expressly provides that mere non user of an easement will not be an implied release of the right of way. In such circumstances, I find no substantial question of law involved in the appeal. It is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk