IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 24TH MARCH 2011 / 3RD CHAITHRA 1933 RSA.No. 1267 of 2005() ---------------------- AS.234/2004 of ADDL. DISTRICT COURT, PARAVUR OS.146/2001 of MUNSIFF COURT, PERUMBAVOOR .................... APPELLANT/APPELLANT/PLAINTIFF. -------------------------------------------------------- MATHAI, S/O.PAILY,NARAKATHUPUTHENPURAYIL HOUSE, AGED 76, MANOOR KARA, AIRAPURAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.JOSE JOSEPH ARAYAKUNNEL SRI.VARGHESE PARAMBIL RESPONDENT: RESPONDENT/DEFENDANT. --------------------------------------------------------------- JORDI POULOSE @ JORDI, S/O.PAULOSE, AGED 26, NARAKATHUPUTHENPURAYIL HOUSE, MANOOR KARA, AIRAPURAM VILLAGE, KUNNATHUNADU TALUK ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 7/3/2011 ALONG WITH RSA NO. 1270 OF 2005 THE COURT ON 24/3/2011 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 1267 & 1270 OF 2005 =========================== Dated this the 24th day of March,2011 JUDGMENT Appellant is the plaintiff in O.S.No.201/2001 and the defendant in O.S.146/2001 on the file of Munsiff Court, Perumbavoor. Respondents in R.S.A 1270/2005 are the defendants in O.S.201/2001 and first respondent therein who is the sole respondent in R.S.A.1267/2005 is the plaintiff in O.S.146/2001. O.S.201/2001 is filed by the appellant seeking a decree for declaration that under Ext.A3 agreement dated 14.2.1988, appellant has every right to continue the pipeline through the plaint B schedule property and to pump water from plaint C schedule property to the plaint A schedule property and also to restrain respondents by a permanent RSA 1267 & 1270 of 2005 2 prohibitory injunction from interfering with the plaint D schedule pipeline or taking water through it. O.S.146/2001 was instituted seeking a decree for mandatory injunction directing the appellant to remove the pipeline which passes through the plaint schedule property, not being used and is in a dilapidated condition and a permanent prohibitory injunction restraining appellant from trespassing into the plaint schedule property or using it as a way. Plaint schedule property in O.S.146/01 is the plaint B schedule property in O.S.201/01. Both the suits were tried jointly. Learned Munsiff on the evidence dismissed O.S.201/01 and granted a decree for mandatory injunction in favour of the respondent in O.S.146/01. Appellant challenged the said common judgment in A.S.234/2004 and A.S.235/2004 before Additional District Court, North Parur. Learned Additional District Judge on reappreciation of evidence confirmed the decree of the trial court and dismissed the appeals. RSA 1267/2005 is filed challenging the judgment in O.S.146/2001 as confirmed in A.S.234/2004. RSA RSA 1267 & 1270 of 2005 3 1270/2005 is filed challenging the judgment in O.S.201/2001 as confirmed in A.S.235/2004. The appeals were admitted formulating the following substantial questions of law. 1) Does Ext.A3 document stand cancelled automatically on the death of grantor Varkey due to the non-mentioning of it in Ext.B1 will. What is the effect of the will deed on Ext.A3 agreement? 2) What is the legal effect of the acquiescence of the defendants allowing the plaintiff to take water for many years after the death of late Varkey? Will it constitute acquiescence by the defendants of the plaintiff's right under Ext.A3 document? RSA 1267 & 1270 of 2005 4 2.Learned counsel appearing for the appellant and respondent were heard. 3 The argument of the learned counsel appearing for the appellant is that courts below did not properly appreciate the pleadings or the ambit and scope of Ext.A3 agreement or the right claimed by the appellant. It was argued that Ext.A3 agreement as such was extracted in the plaint and the necessary ingredients of the right claimed was also pleaded, though the particular right of easement was not specifically mentioned, the recitals in Ext.A3 with the contentions raised in the plaint would establish that the right claimed by the appellant is a right of easement by grant and courts below failed to take note of this material aspect. Learned counsel argued that a proper appreciation of Ext.A3 would establish that a right of easement was granted thereunder and plaint A schedule property belonging to the appellant is the servient tenement and plaint B schedule belonging to the respondent is the dominant tenement and under Ext.A1 a right was granted to the appellant RSA 1267 & 1270 of 2005 5 by the predecessor of the respondent to take water from plaint C schedule property to the plaint A schedule property for its beneficial enjoyment and plaint E schedule is the pipeline through which water is being taken and in such circumstances the right granted under Ext.A3 is not a licence as found by the courts below but a right of easement by grant and courts below should have granted the decree as sought for in O.S. 201/2001. Learned counsel also argued that findings of the courts below that a document granting easement must be registered under section 17 of Indian Registration Act is not sustainable and only if the dominant tenement is to be transferred and along with the dominant tenement the right of easement is also transferred, then only the document needs registration and when under Ext.A3, a right of easement is granted, findings of the courts below that Ext.A3 is bad for non registration is unsustainable. Learned counsel relied on the decisions the High Court of Madras in Musunoori RSA 1267 & 1270 of 2005 6 Satyanarayana Murti v. Chekka Lakshmayya (AIR 1929 Madras 79), Gum Sone v. Cassim Dalla (Indian Cases 1916 vol.34 page 95.). Learned counsel relying on the decision of the Apex Court in Ram Sarup Gupta v.Bishun Narain Inter College (AIR (1987 SC 1242) argued that it is not desirable to place undue emphasis on the form of pleadings and instead substance of the pleadings should have been considered and when all the essential ingredients were pleaded in the plaint, courts below should have treated the right claimed was only a right of easement by grant. 4. Learned counsel appearing for the respondent argued that a reading of Ext.A3 agreement establishes that it is only a licence and not an easement. It was pointed out that the right given thereunder is only a personal right to take water from plaint C schedule property to the property of the appellant through the property of the respondent by laying down a pipe for the consideration of providing water to the use of the RSA 1267 & 1270 of 2005 7 property of the first executant and in such circumstances it will not amount to a right of easement by grant. Learned counsel also argued that when the licensor under Ext.A3 licence is no more, the licence stands terminated and thereafter appellant cannot exercise the right under the licence and therefore courts below rightly granted the decree in O.S.146/2001 and dismissed O.S. 201/2001.Learned counsel relying on the decisions in Sorab Alias S.P.Kavinda v. Viswanatha Menon (1974 KLT 606), Vimala v. Sankarankutty Nair ( 2004 (2) KLT SN 57 Case 67), Velayudhan v. Padmanabhan (1988 (2) KLT 417),Smt.Shantabai v. State of Bombay ( AIR 1958 SC 532),Sunder Lal v. Sita Bali (AIR 2003 Punjab and Haryana 277), Karselal v. Badriprasad (AIR 1922 Nagpur 162), Dhool Singh v.Smt.Bardhu Bai ( AIR 1974 Rajasthan 90), Saraswathi v. M/s.Bharath Textiles (1992(1)KLT 863),BSNL v. Subash Chandra Kanchan (2006)8 SCC 279), Sant Lal Jain v.Avtar Singh (AIR 1985 SC 857) argued that as Ext.A3 creates only a licence RSA 1267 & 1270 of 2005 8 appellant is not entitled to the relief sought for. 5. The crucial question is what is the nature of the right created under Ext.A3. Whether it creates an easement of grant as claimed by the appellant or the right created is only a licence, as claimed by the respondent. The facts are not disputed. Plaint A and C schedule properties belong to the appellant and plaint B schedule property to the respondent. Ext.A3 was admittedly executed on 14.2.1988. The first executant was Mathai Varkey and the second executant the appellant. Respondent is the successor in interest of the first executant. Under Ext.A1 Mathai Varkey permitted appellant to lay pipeline across the plaint B schedule property two feet below the ground level, to take water from plaint C schedule property to the property of the appellant which lies to the west of plaint B schedule property. The plaint B schedule property was intended to be settled in favour of his third son N.V. Varghese. Before considering the nature of the right created under Ext.A3 the distinction RSA 1267 & 1270 of 2005 9 between a right of easement and a right created under a licence is to be born in mind. 6. Section 4 of the Indian Easements Act (hereinafter referred to as the Act),defines an easement as follows:- “An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of certain other land not his own.” Section 52 of the Act defines a licence as follows:- “Where one person grants to another, or to a definite number of other persons, a right to do, or continue to RSA 1267 & 1270 of 2005 10 do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license.” 7. An easement is a right or interest in immovable property. When a right of easement is validly created, it is annexed to the land. The benefit of it passes with the dominant tenement and its burden passes with the survient tenement. The following characters are essential to an easement. (1) There must be a dominant and servient tenement. (2) An easement must accommodate the dominant tenement. (3) The right of easement must be possessed for the beneficial enjoyment of the dominant tenement. RSA 1267 & 1270 of 2005 11 (4) Dominant and servient owners must be different persons. (5) The right should entitle the dominant owner to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of the servient tenement; (6) That something must be of a certain or well defined character and must be capable of forming the subject matter of a grant. 8. When a person is granted a right which he otherwise does not have in or upon an immovable property of the grantor to do or continue to do something which would, in the absence of a grant would be illegal which is neither easement nor an interest in the property is called a licence. Thus license is a right granted by the owner of some RSA 1267 & 1270 of 2005 12 immovable property to do or continue to do in or upon such immovable property of the grantor, something which in the absence of such right would be unlawful. 9. Once an easement is validly created, it is annexed to the land. The benefit of it passes with the dominant tenement and the burden of it passes with the servient tenement, to every person into whose occupation the dominant and survient tenements respectively come. But a licence is distinguishable from an easement right as being personal to both grantor and grantee, unless it is coupled with a grant. The grant of licence may consist in the legalisation of only one particular act or a series of particular acts. Both the licence and easement legalises unlawful acts but the legalisation in the case of a licence is limited while that in the case of an easement it is unlimited. A licence is only a right to do something and not a right to prevent something being done on the property of the grantor as is the case with the easement. Licence only legalises RSA 1267 & 1270 of 2005 13 certain acts of the grantee and does not render any acts of the grantor unlawful. For a licence it is not necessary that the holder thereof must be the owner or occupier of certain land and he should hold the right for the beneficial enjoyment of such land. A licence is purely a personal right while an easement is a right appertaining to the land. Where the right concerned arises by grant and is a right to do some positive act or a series of such acts, it could either an easement or licence. It could even be an interest in the land itself. The Law of Easements and Licences by B.B. Katiyar Thirteenth Edn. at page 893 dealt with the distinction between a licence and easement. It reads as follows:- “If the grant authorises the doing of only a single act or a limited number of acts it is purely a licence, but where the grant is couched in such words that such RSA 1267 & 1270 of 2005 14 limitations cannot be ascertained with any amount of certainty, it is not easy to construe such grant. The difficulty is increased if the doing of such act is also beneficial to the land of the grantee. If the grant to do such positive act gives to the grantee the exclusive use of a certain interest in the land thereby excluding the grantor totally from the use of such interest himself, it amounts to the transfer of such interest and is neither a licence nor an easement. But if the grant is such that the grantor is not totally RSA 1267 & 1270 of 2005 15 deprived of any use of his property which vests in the grantee but is only subject to the obligation of allowing certain acts of such user to be done by the grantee, the question arises whether it is an easement or only a licence. If such acts are not done for the beneficial enjoyment of some other property of the grantee the question simplifies itself and on can safely infer that it is only a licence. But if such acts are done for the beneficial enjoyment of the property of the grantee the right is generally an easement. RSA 1267 & 1270 of 2005 16 But there may be cases in which although the right granted may consist in the doing of some positive acts for the beneficial in character and enjoyment as to constitute a personal right of licence. In the case of easement the legalisation of the acts of the grantee is only a means to an end which consists of the beneficial enjoyment of the grantee's own property, while in the case of licence such legislation is an end in itself without requiring any ulterior object to be served thereby, though incidentally, it may help the grantee in the RSA 1267 & 1270 of 2005 17 beneficial enjoyment of his own property. A right of easement when granted or acquired becomes part and parcel of the right of property in the soil to which it is annexed and runs with it like any other right of property, while a licence only legalises certain acts of the particular person to whom it is granted on the property of the grantor and does not entitle him to delegate the authority thus granted to him to anybody else. So the points of difference between an easement and a licence may be summed up as follows: RSA 1267 & 1270 of 2005 18 (1) An easement is a right appertaining to property while a licence is only a personal right. (2) An easement is a right in rem and is enforceable by all and against all into whose hands the servient and the dominant tenements respectively may come, while a licence is only a right in personam and, therefore, not so enforceable. (3) An easement can be assigned with the property to which it is annexed, but a licence cannot be assigned at all except where it is a licence to attend a place of public entertainment. RSA 1267 & 1270 of 2005 19 (4) A right of easement is not revocable at the will of the grantor while a licence is so revocable, except where the grantor is estopped by his conduct from exercising the power of revocation conferred by law. Where a deed of partition between two brothers recited that the brother without a well should be allowed the use of a well fallen to the share of the other brother, out of brotherly affection and not as of right, it was held that as the licence was granted as part of a partition, it was a licence coupled with RSA 1267 & 1270 of 2005 20 transfer of property falling under clause (a)of Section 60 and, therefore,irrevocable. (5) A licence is permissive right traceable to a grant from the licensor either expressly or impliedly. But an easement is acquired either by assertive enjoyment by the dominant owner or by a negative covenant between the parties or by grant or by statute. (6) An easement may be positive or negative in character, a licence is invariably positive and cannot be negative in character. It may be that RSA 1267 & 1270 of 2005 21 there are cases in which a negative obligation might be cast on the licensor with the object of protecting a licence coupled with a grant but such obligation is due to the grant accompanying the licence and not to the licence per se.” 10. Thus whether a particular agreement creates an easement or a licence depends on the construction of its language. In case of ambiguity or inconsistency the surrounding circumstances have to be considered. The points which generally arises for determination are whether the right in question is appertaining to land or is merely personal. Whether the benefit as well as the burden are annexed to the land or whether they are merely personal both to the grantor and the grantee. Whether the right in question creates an estate or it does not. RSA 1267 & 1270 of 2005 22 11. Learned Munsiff held that Ext.A3 is a grant and hence the transaction requires registration and in the absence of registration the grant cannot be legal. Learned Additional District Judge also upheld the said finding. As rightly argued by the learned counsel appearing for the appellant the said finding is not legal. An easement can be acquired by an express grant or even by implied grant. The express grant could be oral and need not even be written and no form is prescribed. It will be sufficient if the words stated or written convey the idea of grant of a right of easement unequivocally. In B.B.Katiyar Law of Easements and Licences Thirteenth Edn. at page 12 the position is explained as follows:- “an easement may be acquired by express grant. It may be oral and need not be in writing or registered.” As a right of easement is a right available to the beneficial enjoyment of the dominant tenement, such right could be transferred along with the transfer of the dominant tenement. Without the RSA 1267 & 1270 of 2005 23 transfer of the right of dominant tenement, a right of easement alone by itself cannot be transferred. When the dominant tenement is transferred, along with it the right of easement, But such transfer could only be by a registered document. Even otherwise the easement being annexed to the dominant tenement, it gets transferred along with the transfer of the dominant tenement. If the value of the dominant tenement exceeds Rs.100/- it should necessarily be registered. But it is not correct to say that a right of easement by grant could be created only by a registered document, for the reason that the transfer of right of easement along with the transfer of dominant tenement could only be by a registered document. As a right of easement by grant could even be created orally, the finding that the right of easement by grant could be created only by a registered document is erroneous. 12. Justice Madhavan Nair in Musunoori Satyanarayana Murti v. Chekka Lakshmayya and others RSA 1267 & 1270 of 2005 24 (AIR 1929 Madras 79)quoting Peacock in his Tagore Lectures on the Easement Act by Mitchell that “by the law of India, wherever the Transfer of Property Act applies, the grant of easement by way of sale must be made by a registered instrument, an easement being an intangible thing, and if made by way of gift must also be by a registered instrument signed by or on behalf of the grantor and witnessed by at least two witnesses” held:- “If I may say so with respect , very carefully and elaborately considered in Bhagwan Sahai v. Narasingh Sahai(1909 31 All.612) and I cannot do better than refer to the exposition of the law on this point contained in that judgment in answer to the appellant's argument. In that case “the owner of a house undertook by an “argument” to permit the RSA 1267 & 1270 of 2005 25 owner of an adjoining house when he built a second storey which was in contemplation, to discharge rain water and also water used for daily household purposes into the premises of the former. Referring to the argument that by this “agreement” its executant transferred a portion of his right of ownership as contemplated in S.54 T.P. Act, Tudball,J. made the following observations. Prior to the execution of the deed he had the right to prevent the discharge by the appellant of the soiled water upon his tenement, as that would have been an invasion of his. right. He did not RSA 1267 & 1270 of 2005 26 transfer this right to the defendant. He relinquished it, and it then ceased to exist pro tempore. It was not that right which arose in the defendant but a totally opposite right, one hostile to the right which till then had reposed in the plaintiff's vendor. The one right came into existence when the other came to an end. A fresh burden was imposed on the servient tenement the owner of which lost one of his rights; but he did not transfer the right so lost to the owner of the dominant tenement. The right lost was one which might possibly revive in the future. It seems clear to me that the creation of a right of RSA 1267 & 1270 of 2005 27 easement by grant is not such a transfer of ownership as is contemplated by Section 54 of the Act. Where under that section an easement is transferred it must be so transferred along with the dominant heritage. There is no other way of transferring it and this arises by reason of the nature of the right. It exists only for the benefit of the heritage and to supply its wants. There is nothing in law which necessitates the creation of an easement being evidenced by writing. Then the learned Judge proceeded to discuss the authorities to which I have already drawn attention. Banerji, J., also expressed a similar view. This RSA 1267 & 1270 of 2005 28 decision was followed by Jackson, J., in Kondayya v. Veeranna A.I.R. 1926 Mad. 543. A Bench of the Calcutta High Court in Sital Chandra v. Allen J., Delanney 20 C.W.N. 1158,. has pointed out that the provisions of the Transfer of Property Act have no application to the creation of easements and that the Act was not intended to deal with them.” Justice Maung Kin of Lower Burma Chief Court in Indian Cases Vol.34 page 95 considering the decision in Bhagwan Sahai's case, which was relied by Justice Madhavan Nair in Satyanarayana Murti's case (supra), held:- “In that case there was an unregistered document creating a right to discharge water on to a neighbours premises. It was contended RSA 1267 & 1270 of 2005 29 that section 54 of the Transfer of Property Act did not apply and that the document had a binding effect. Tudball,J. observed:-The argument is that the document now in question evidences not the transfer