IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 19.07.2011 CORAM THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN S.A.No.590 of 2011 and M.P.Nos.1, 2, 3 and 4 of 2011` Koshe .. Appellant/ Defendant Vs. A. Natarajan .. Respondent/ Plaintiff Prayer:- Second Appeal filed under Section 100 of Code of Civil Procedure against the Judgment and Decree dated 16.12.2010 passed in A.S.No.10 of 2008 on the file of the Subordinate Judge Court, Tambaram, reversing the Judgement and Decree, dated 16.9.2008, passed in O.S.No.44 of 2006 on the file of the District Munsif Court, Alandur. For appellant : Mr.V.P.Raman For respondent : Mrs. C.R.Rukmani J U D G E M E N T The defendant in O.S.No.44 of 2006 on the file of the District Munsif Court, Alandur, is the appellant. 2. The respondent/ plaintiff filed the suit for permanent injunction stating that the suit property and adjoining pathway on the east and property on the north and south originally belonged to Jesubatham and the total extent of property was admeasuring 60 feet and 90 feet. The said Jesubatham sold the northern portion measuring 5400 square feet to D.S. Mathias and naming the Plot as Plot No.27-A and while selling the said extent he left the pathway on the eastern side measuring 90 feet in length north-south and 6 feet in breadth east-west, for having ingress and egress to the property in Plot No.27-B which is situate on the southern side of Plot No.27-A. Plot No.27-B was also sold by Jesupatham on the same day and in that sale deed also the pathway on the eastern side of the property in Plot No.27-A was mentioned for having ingress and egress to the Plot No.27-B. Later, D.S. Mathias divided the property, he purchased under the sale deed dated 19.12.1947 into https://hcservices.ecourts.gov.in/hcservices/ two plots and sold one plot to one Krishnan Kutty and another plot to Thomas P.Ryan under two sale deeds dated 3.8.1978 and naming the property on the northern side as Plot No.27-A2 and southern side as Plot No.27-A1. Krishnan Kutty was the owner of Plot No.27- A1 and from him the plaintiff purchased the property. After purchase the plaintiff claims right over the pathway also and attempted to fence the property and that was obstructed by the appellant/ defendant. Therefore, the respondent/ plaintiff filed the suit for injunction stating that he has got every right to use the Plot No.27A-1 which was sold to him and having an extent of 60 feet East-West and 45 feet North-South. 3. The appellant/ defendant contested the suit stating that even in the sale deed dated 19.12.1947 the passage on the eastern side of the respondent/ plaintiff property was mentioned and that is the passage for having ingress and egress to the property in Plot No.27-B belongs to the appellant/ defendant and Plot No.27-B is situate on the southern extreme and under the documents dated 19.12.1947 and also as per the sale deeds executed by D.S.Mathias in favour of the respondent/ plaintiff's vendor and Thomas P.Ryan dated 3.8.1978, the property on the eastern side was mentioned as the pathway to have ingress and egress to the appellant's property and in the plaintiff's sale deed also the pathway was mentioned and therefore it is an easement by grant in favour of the appellant/ defendant and that cannot be prevented by the plaintiff/ respondent and the plaintiff/ respondent has no right to close the pathway. 4. The trial Court on proper appreciation of facts and law dismissed the suit holding that the appellant /defendant has got a right of way through the passage measuring 90 feet North- South and 6 feet East-West and lying on the eastern side of the respondent/ plaintiff property and that was mentioned in the sale deeds dated 19.12.1947, 3.8.1978 and 2.3.1988 and the respondent/ plaintiff has no right to fence that portion so as to prevent the appellant/ defendant from using the path way. The respondent/ plaintiff filed the appeal and lower appellate Court allowed the appeal holding that the pathway claimed by the appellant/ defendant was one of an easement of necessity and admittedly the appellant/ defendant and respondent/ plaintiff are having access through the road that was formed later on the western side known as Church Cross Street and therefore the easement of necessity was extinguished as the appellant has got another way to reach his house and easement of necessity can be claimed only when there is no other alternative passage and in this case it has been proved that there is alternative passage on the western side through Church Cross Street and hence the appellant cannot insist on the suit pathway to reach his house on the ground of easement of necessity after the formation of the road on the western side and granted the decree of injunction. Against the same, the Second Appeal is filed. https://hcservices.ecourts.gov.in/hcservices/ 5. The following substantial question of law arises for consideration in the Second Appeal: Whether the passage on the eastern side of the respondent's property measuring 90 feet North-South and 6 feet East-West is an easement of necessity for the appellant or appellant gets the same by way of easement by grant ? 6. Mr. V.P.Raman, the learned counsel for the appellant submitted that having regard to the specific recitals in the sale deeds dated 19.12.1947 Ex.B1, 3.8.1978 Ex.A1 and 2.3.1988 Ex.A2, the pathway measuring 90 feet North-South and 6 feet East-West on the eastern side of the respondent's property is only an easement by grant and an easement by grant will not be extinguished even another passage is available to that owner and the lower appellate Court erred in assuming that the passage was an easement of necessity which was extinguished by the formation of road on the western side and it is also not the case of the respondent/ plaintiff that the passage on the eastern side of his property was claimed as easement of necessity by the appellant/ defendant and the necessity extinguished after the formation of road on the western side and therefore, the lower appellate Court was wrong in allowing the appeal and decreeing the suit. He also relied upon the Judgements reported in 2006 (5) SCC, 545 (Hero Vinoth (Minor) v. Seshammal), 1999 (3) L.W. 526 (M.Singammal Reddiar v. S.Eramallu Gounder), 2006 (5) CTC, 573 (Ponnan & Others v. Peraman & another) and 2010 (2) SCC, 689 (Sree Swayam Prakash Ashramam v. G.Aanandavally Amma). 7. On the other hand, Mrs.C.R. Rukmani, the learned counsel for the respondent submitted that under Ex.A1, the property including pathway was sold to the respondent's predecessors in title and a passage was provided for having ingress and egress to the property on the southern side namely the defendant's property and at that time there was no access for the appellant's property from the Christ Church Road on the northern side and therefore out of necessity the passage was provided to reach the Plot No.27-B belongs to the appellant/ defendant and after the formation of Church Cross Street on the western side, there was no necessity to use the disputed pathway situate on the eastern side of the respondent/ plaintiff property and once the servient owner is having access through another passage he cannot claim any passage by way of easement of necessity and that was properly appreciated by the lower appellate Court and the suit was decreed and the appeal was allowed. 8. Heard both sides. 9. The following rough sketch will help us to appreciate the facts of the case: https://hcservices.ecourts.gov.in/hcservices/ N N -------------------------------------------- CHRIST CHURCH ROAD A B PLOT NO. 27-A2 ________________________ PLOT NO.27-A-1 (RESPONDENT) 6ft PLOT NO.27-B (APPELLANT) D S C It is not in dispute that ABCD was originally owned by Jesubatham and the Plot Number was 27. It is abutting Christ Church Road on the southern side. The said Jesubatham divided the property into two plots namely 27-A and 27-B and sold Plot No.27-A to D.S.Mathias and Plot No.27-B to Mariam John under two sale deeds dated 19.12.1947 and the sale deed in favour of Mariam John was marked as Ex.B1. While selling Plot No.27-A to D.S.Mathias in the sale deed it was described as follows: " A pathway (Passage) measuring 90 feet in length and 6 feet in breadh running North to South on the Eastern boundary of the land hereby conveyed is also included in the lands hereby sold and conveyed subject to the said passage being allowed to be used by the owner of the Plot of land adjoining this plot on the south for ingress and egress only and not for any other purpose." 10. Thereafter, D.S. Mathias subdivided Plot No.27-A into Plot No.27-A1 and Plot No.27-A2 and sold Plot No.27-A1 to Krishnan Kutty under a sale deed dated 3.8.1978 and Krishnan Kuttyy is the vendor of the plaintiff. While describing the passage in the sale deed dated 3.8.1978, it is stated as follows: " The vendor states that his purchase extent is 60 feet East to West and 90 feet North to South, that a strip of land on the East measuring 6 feet East to West and 90 feet North to South has been left for access to plot No.27-B lying to the south of Plot No.27-A, the Southern part of which is conveyed herein to the purchaser and the vendor hereby declares that the owner or owners of Plot No.27-B and 27-A2 shall have only the right of ingress and egress through the said lane and shall not be entitled to occupy, construct upon or utilize the same for any other purpose, except as a passage way to the Plots Nos.27-A2 and 27-B." https://hcservices.ecourts.gov.in/hcservices/ 11. Thereafter, Krishnan Kutty sold the property to the plaintiff/ respondent. In the sale deed Ex.A2 dated 2.3.1988 in favour of the respondent/ plaintiff also the right of passage through the pathway measuring 90 feet in length and 6 feet in breadth running North to South on the eastern boundary was mentioned. Therefore, having regard to the recitals in Exs.B1, A1 and A2, it can be held that it is only an easement by grant and it is not an easement of necessity. The Hon'ble Supreme Court in the Judgement reported in 2006 (5) SCC, 545 (Hero Vinoth (Minor) v. Sheshammal) has clearly held that an easement by grant does not get extinguished even though another passage is available to the dominant owner. The Hon'ble Supreme Court in the above Judgement has held as follows: " An easement by grant does not get extinguished under Section 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognised in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case. " 12. Further, in the Judgement reported in 1999 (3) L.W. 526 (M.Singamma Reddiar v. S.Eramallu Gounder), the same principle was reiterated and in the Judgement reported in 2006 (5) CTC, 573 (Ponnan & Others v. Peraman & another), this Court has held as follows: " It has to be pointed out that the question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not by anything else. Easement of necessity and quasi- easement are dealt with in Section 13 of the Act. The grant may be expressed or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act https://hcservices.ecourts.gov.in/hcservices/ even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Anyhow the scope of the grant could be determined by the terms of the grant between the parties alone. " 13. Therefore, having regard to the recitals in Exs.A1, A2 and B1, it can be held that what was stated in the above documents in respect of the passage is only an easement by grant and it cannot be construed as an easement of necessity. Once the pathway was given as an easement by grant it will not be extinguished even though the parties have got another way to reach the property. No doubt, there is a pathway on the western side known as Church Cross Street and that came into existence at later point of time and according to me, having regard to the nature of easement that is available to the appellant/ defendant it is only an easement by grant and therefore notwithstanding having access from the western road known as Church Cross Street, the appellant/ defendant is entitled to have access through the pathway which is situate on the eastern side of the plaintiff/ respondent property measuring 90 feet North-South and 6 feet East-West to have ingress and egress to his property. The lower appellate Court without appreciating the difference between easement by grant and an easement of necessity, erred in allowing the appeal holding that the disputed pathway was only an easement of necessity and that is extinguished after the formation of road on the western side known as Church Cross Street. As stated supra, what is stated under Exs.A1, A2 and B1 in respect of the passage is only an easement by grant and it is not an easement of necessity and therefore it will not be extinguished after the formation of another access. Therefore, the substantial question of law is answered in favour of the appellant. 14. Hence, the Judgement and Decree of the lower appellate Court is set aside and the Judgement and Decree of the trial Court are confirmed and the Second Appeal is allowed. No costs. Consequently, the connected Miscellaneous Petitions No.1 and 2 are closed and I further hold that the appellant/ defendant is having an easement by grant on the basis of documents already available before the Court and there is no need to receive the additional evidence and therefore the M.P.Nos. 3 and 4 of 2011 are also dismissed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar kr. https://hcservices.ecourts.gov.in/hcservices/ To 1. The District Munsif, District Munsif Court, Alandur. 2. The Subordinate Judge, Subordinate Court, Tambaram. 3.The Section Officer, V.R.Section, High Court, Madras. 1 cc to Mr. V.P.Raman, Advocate, Sr.No.43489/11 1 cc to Mrs. C.R.Rukmani , Advocate, Sr.No.43493/11 S.A.No.590 of 2011 and M.P.Nos.1 to 4 of 2011 RB(CO) PMK.26.8.2011 https://hcservices.ecourts.gov.in/hcservices/