IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 23RD JANUARY 2009 / 3RD MAGHA 1930 RSA.No. 17 of 2009(B) -------------------- AS.28/2003 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.1715/1997 of I ADDL. MUNSIFF'S COURT,TRIVANDRUM .................... APPELLANTS/APPELLANTS/DEFENDANTS:- ------------------------------------------------ 1. BAIJU VASANTH, S/O.T.SETHUNATH, SREE PONNAMBALAM, MUTTATHARA, THIRUVANANTHAPURAM, 2. BINU VASANTH, S/O.T.SETHUNATH, SREE PONNAMBALAM, MUTTATHARA, THIRUVANANTHAPURAM. 3. BINDHU VASANTH, D/O.T.SETHUNATH, SREE PONNAMBALAM, MUTTATHARA, THIRUVANANTHAPURAM, (REPRESENTED BY THEIR FATHER AND POWER OF ATTORNEY HOLDER T.SETHUNATH, S/O.THANUVAN, RESIDING AT SREE PONNAMBALAM, MUTTATHARA, THIRUVANANTHAPURAM, BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.HEMALATHA SRI.R.S.MADHU SRI.MAHESH ANANDAKUTTAN RESPONDENTS/ RESPONDENTS/PLAINTIFFS: -------------------------------------- 1. LALITHA BAI, D/O.AMBUJAKSHY AMMA, KRISHNAKRIPA, V.K.K.NAGAR, THIRUVANANTHAPURAM. 2. DILEEP KUMAR, S/O.R.GOPINATHAN NAIR, KRISHNAKRIPA, V.K.K.NAGAR, THIRUVANANTHAPURAM. 3. SREEKALA GOPINATH, W/O.R.M.PILLAI, KRISHNAKRIPA, V.K.K.NAGAR, THIRUVANANTHAPURAM REPRESENTED BY HER POWER OF ATTORNEY HOLDER R.GOPINATHAN NAIR. R.S.A. No. 17/2009 : 2 : 4. PADMAKUMAR, S/O.R.GOPINA THAN NAIR, KRISHNAKRIPA, V.K.K.NAGAR, THIRUVANANTHAPURAM. 5. INDIRA BAI, D/O.AMBUJAKSHI AMMA, NEW HOUSE, PAZHAVANGADI, THIRUVANANTHAPURAM. 6. RAJASREE, D/O.INDIRA BAI, NEW HOUSE, PAZHAVANGADI, THIRUVANANTHAPURAM. ADV. SRI.G.S.REGHUNATH FOR R1 to 4 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 23/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 17 of 2009 ========================== Dated this the 23rd day of January, 2009. JUDGMENT The defendants in O.S. No. 1715 of 1997 on the file of the Additional Munsiff's Court, Thiruvananthapuram are the appellants in this Second Appeal. The said suit instituted by the 6 plaintiffs who are respondents 1 to 6 herein was one for a perpetual injunction restraining the three defendants from trespassing into the plaint schedule properties and from causing any obstruction or reducing the width of the plaint A schedule pathway and making any construction after encroaching into the plaint schedule properties in a manner interfering with the plaintiffs' peaceful enjoyment of the plaint schedule properties. 2. The suit was filed on the basis of an easement by prescription as well as an easement by way of grant over the plaint A schedule pathway admittedly passing through the properties held by the defendants. The suit was resisted by the defendants contending inter alia that the plaintiffs had no right of easement either by way of prescription or by way of grant over the property described as the plaint A schedule property and that R.S.A. No. 17 of 2009 : 2 : the grant if at all provided under Ext.A1 partition deed was a way for having access to the 'Edasandhya' situated in the C schedule to Ext.A1 partition deed and the well situated in the B schedule to the partition deed which could only be in the north-south direction. It was further contended that the right by way of easement, if any, was extinguished within the meaning of Section 47 of the Easements Act on account of the compulsory acquisition by the State of the eastern portion of the larger extent constituting the servient heritage and consequently the accessory rights were also extinguished under Section 48 of the Easements Act. 3. Both the courts below after considering the recitals in Ext.A1 partition deed and the other evidence in the case, came to the conclusion that the plaint A schedule property was a pathway running east-west provided by way of grant under Ext.A1 and that since it was not an easement in the strict sense of the term, it could not be extinguished either under Section 47 or under Section 48 of the Easements Act. The suit was accordingly decreed by the courts below. Hence this Second Appeal by the R.S.A. No. 17 of 2009 : 3 : defendants. 4. The following are the questions of law formulated in the memorandum of Second Appeal:- i. Are not the judgments and decrees of the courts below wrong and perverse? ii. Have the courts below properly considered and understood Exhibit-C1, X1 and A12(a)? iii. Has not the easement right claimed by the respondent extinguished by virtue of Section 45 of the Indian Easement Act? iv. Is not the provision made in Exhibit-A1 only a contractual clause and has it got any validity when there is a permanent change in the dominant heritage? v. Is not the pathway provided for the enjoyment of well as well as kottiyambalam as mentioned in Exhibit-A1? 5. I heard the learned counsel appearing for the appellants/defendants as well as the learned counsel appearing for the respondents/plaintiffs. 6. Adv. Shri. Anandakuttan, the learned counsel appearing for the appellants made the following submissions before me in support of the appeal:- The findings recorded by the court below that the plaint A schedule is a pathway provided as a grant under Ext.A1 partition R.S.A. No. 17 of 2009 : 4 : deed, is unsustainable. A total extent of 16 cents of land abutting the M.G road on the west was partitioned between one Gowrikutty Pillai, the great grandmother of the plaintiff and her brother Kesava Pillai and sister Sreedevikutty Pillai as per Ext.A1 partition deed of the year 1074 M.E. The said property was divided into four and the northern and southern segments were allotted to Gowrikutty Pillai and the eastern segment was allotted to Kesava Pillai and the western segment was allotted to Sreedevikutty Pillai. The well for the common use of all the sharers was situated towards the north- eastern portion of the larger extent. Since the eastern extremity of the entire property is a row of buildings and the only access from the M.G road to the entire property was through the 'kottiambalam' situated in the middle of the property, a provision had to be made for the sharers to enjoy the only source of water in the well and for having access to the 'Edasandhya' situated in the C schedule allotted to Kesava Pillai. Hence clause 25 of Ext.A1 made a provision for that. A reading of the said clause will unambiguously show that if at all a grant was provided, it could R.S.A. No. 17 of 2009 : 5 : have only been in the north-south direction. But the right now claimed is through the plaint A schedule property described as lying in the east-west direction. The narrow strip of land described as 'EPQD' in Ext.A12(a) plan is only a space in between the eaves of the buildings on either side and it was never used as a pathway. Even assuming that the said strip of land could be called an easement, it was extinguished within the meaning of Section 47 of the Easements Act with the compulsory acquisition of the eastern portion of the larger building along the line 'BI' in Ext.A12 (a) plan resulting in the extinguishment and the accessory right also by virtue of Section 48 of the Easements Act. Even though this contention of the defendant was specifically raised in the written statement, no issue was framed by the trial court which was considering the said contention even without framing any issue in that behalf. The judgment of the courts below are, thus, unsustainable. 7. I am afraid that I cannot agree with the above submissions. To have a better comprehension of the rival contentions of the parties, it is profitable to refer to Ext.A12(a) R.S.A. No. 17 of 2009 : 6 : plan which was prepared by the Advocate Commissioner in a suit filed as O.S. No. 1671 of 1997 before the Munsiff's Court, Thiruvananthapuram by the very same defendants against the very same plaintiffs. Both the parties had accepted the said plan for the purpose of identification. The courts below also relied on the said plan for appreciating the rival contentions of the parties. 8. 16 cents of land comprised in Survey No. 1009 of Vanchiyoor village identified as plot 'JUOACHIJ' in Ext.A12 (a) plan was the main chunk of the property which was partitioned under Ext.A1 registered partition of the year 1074 ME corresponding to the year 1889. The said property situated in the heart of Trivandrum city was lying to the east of the M.G road running north-south from the East Fort to the over-bridge. Gowrikutty Pillai who was the grandmother of the plaintiffs, was allotted 6 cents of property on the south described as the A schedule property and four cents of property on the north described as the B schedule thereto. A schedule is identified as plot 'QDCA' and B schedule is identified as plot 'JUGH' in Ext.A12 (a) plan. Both these plots are lying in the east-west direction R.S.A. No. 17 of 2009 : 7 : parallel to each other with the C and D schedule properties lying in between. The C schedule property admeasuring two cents is situated on the eastern side abutting the M.G road on the east and was allotted to Kesava Pillai. D Schedule property admeasuring 4 cents lying to the west of the C schedule was allotted to Sreedevikutty Pillai. It is admitted that the entire eastern portion of this larger extent of 16 cents abutting the M.G road was full of buildings and the only access to the western property was through the 'kottiambalam' situated in the C schedule allotted to Kesava Pillai. Ext.A1 partition deed contains the following recitals at clauses 25 and 26:- R.S.A. No. 17 of 2009 : 8 : 9. Both the courts did not accept the defence contention that the above recitals was incorporated only for enabling the sharers to have access to the well situated in the north-eastern portion of the property and for the 'Edasandhya' situated in the C schedule therein. Reading the recitals in clauses 25 and 26 of the document, I am also inclined to endorse the view taken by the courts below. The recitals do not indicate that it was incorporated solely for the purpose of having access to the well and 'Edasandhya' alone. On the contrary, a provision was made for all the sharers to use the way kept in common. 10. It is in evidence that Kesava Pillai and Sreedevikutty R.S.A. No. 17 of 2009 : 9 : Pillai sold C and D schedule allotted to them to strangers and their rights ultimately came to vest in the defendants. Ext.A2 is a partition entered into between the heirs of Gowrikutty Pillai whose decedents are the plaintiffs. It also reserves a right of way for eventually reaching the western most property situated in Survey No. 1007 which is situated further to the west of the D schedule property in Ext.A1. The Advocate Commissioner who prepared Ext.A12 report in the suit filed by the defendants against the plaintiffs, had also seen a pathway running east-west in between C and D schedule properties on the north and A schedule property on the south. It was also reported that it has a width of one meter and is an old pathway. The 1st defendant had sold a portion of the C schedule (allotted to his predecessor under Ext.A1) as per Ext.A6 sale deed dated 28.01.1988 to one Arumugharamanathan. That portion sold is the eastern segment of the C schedule property under Ext.A1 partition. It contains a building with a staircase situated on the western side and Ext.A6 sale deed provides for a right of way through the common pathway to the vendee Arumugharamanathan to have an access R.S.A. No. 17 of 2009 : 10 : from the M.G road to the western side of the building to reach the staircase. The said way is described as 'pothuvazhi' by which expression what was meant was only a common way and not a public way as was contended by the defendants. In Ext.A7 subsequent sale deed dated 02.05.1997 by Arumugharamanathan, the vendee under Ext.A6 also such a provision as contained in Ext.A6 is seen repeated. 11. It is not disputed that sometime in the year 1997, the eastern portion of the A , B and C schedule properties under Ext.A1 was compulsorily acquired by the State for the purpose of widening the M.G road. The said widening was from the line 'BI' in Ext.A12(a) plan. Ext.A8 is the survey plan prepared at the time of acquisition. The said survey plan also shows the existence of a pathway running east-west both in the area acquired as well as in the unacquired portion remaining to the west of the same. All these documents were elaborately considered by the courts below. 12. In the light of the concurrent findings by the courts below after a careful reappraisal of the entire oral and R.S.A. No. 17 of 2009 : 11 : documentary evidence including the recitals in Ext.A1, the inescapable conclusion reached by the courts below was that the plaint A schedule was the way provided by way of grant under Ext.A1. In the light of the said factual finding, the question of extinguishment of the grant does not arise. Sections 47 and 48 of the Easements Act will operate only if the way in question is an easement. A way provided under Ext.A1 is not an easement of necessity or an easement acquired by way of prescription so as to get extinguished either under Section 41 (in case of necessity) or under Sections 47 and 48 of the Easements Act (in the case of any other easement). The findings recorded by the courts below are pure findings of fact. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of Second Appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed. Dated this the 23rd day of January, 2009. V. RAMKUMAR, JUDGE. R.S.A. No. 17 of 2009 : 12 : rv