IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 SA.No. 136 of 1999(G) --------------------- AS.89/1996 of SUB COURT, KASARAGOD OS.135/1994 of PRL.MUNSIFF, KASARAGOD .................... APPELLANTS/APPELLANTS-PLAINTIFFS IN OS: ----------------------------------------------- 1. C. H. SARASWATHI AMMA, W/O SUBRAHMANYA BHAT, R/AT CHERAL OF BAYAR VILLAGE AND POST, KASARAGOD 2. S.H.MADHAVA BHAT, S/o. SUBRAHMANYA BHAT R/AT DO- DO- 3. SMT. SUJATHA, D/o. SUBRAHMANYA BHAT, R/AT BETHANGADI TOWN C/o. AMARE BENG HOUSE BELTHANGADI TOWN BELTHANGADI TALUK, D.K. KARNATAKA STATE 4. C.H.UDAYAKUMAR, S/o. SUBRAHMANYA BHAT, R/AT CHERAL OF BAYAR VILLAGE AND POST, KASARAGOD TALUK BY ADV. SRI.L.GOPALAKRISHNAN POTTI SRI.A.DINESH RAO RESPONDENTS/RESPONDENTS/DEFENDANTS IN OS: -------------------------------------------------- 1. SMT. C.H.SEETHAMMA, W/O. ISHWARA BHAT, R/AT CHERALA OF BAYAR VILLAGE AND POST, KASARAGOD TALUK (DIED LRs RECORDED) 2. C.H.GOVINDA BHAT, S/o. ISHWARA BHAT, R/AT DO – DO 3. C.H.SADANANDA , S/o. ISHWARA BHAT OF DO -DO- (DIED – NO LRs) (IT IS RECORDED THAT THE 1st RESPONDENT DIED AND RESPONDENTS 2 AND 3 ARE the LEGAL HEIRS OF DECEASED 1st RESPONDENT AND OF THESE, THE 3rd RESPONDENT ALSO DIED AND NO OTHER LEGAL HEIRS ARE TO BE IMPLEADED ON THE DEATH OF THIRD RESPONDENT WHO DIED AS A BACHELOR AND SECOND RESPONDENT IS THE ONLY LEGAL HEIR AS PER ORDER DATED 28/03/08 IN I.A.No.771/2008) ADV. SRI.M.CHATHUKUTTY NAMBIAR FOR R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- S.A.No.136 of 1999 G --------------------------------------- Dated this 18th day of November, 2009 JUDGMENT Second appeal is brought from the judgment and decree of learned Sub Judge, Kasaragod in A.S.No.89 of 1996 confirming judgment and decree of learned Munsiff, Kasaragod in O.S.No.135 of 1994. Appellants sued the respondents for decree for prohibitory injunction to restrain them from laying pipeline through the suit property. Respondents contended that as per Ext.A1, partition deed of the year 1978 by which themselves and appellants got the respective properties, a right was granted to them to draw water from the tank situated in the A schedule of Ext.A1, partition deed along the trench in the property of appellants for the purpose of irrigation and that they have a right over the water tank as well. It is contended that they have a right to lay pipeline from the tank in the A schedule of Ext.A1 through the water channel in the property of appellants to draw water to their respective properties. Courts below found from Ext.A1 that a right of easement by grant is created in favour of the respondents for the said purpose and hence, without causing injury to the appellants they are entitled to lay pipeline for the purpose of taking water to their properties. The suit was dismissed. Hence the second appeal. The substantial questions of law framed for a decision are: (i) Are the Courts below right in law in holding that S.A.No.136 of 1999 2 limit of easement acquired by Ext.A1 can be enlarged or modified by laying an underground pipeline? (ii) Are the courts below justified in enlarging the scope of the grant which allows only existing flow of water through the existing water channel? It is contended by learned counsel for appellants placing reliance on the decision of this Court in Velayudhan Vs. Padmanabhan (1988 (2) KLT 417) that the grant is controlled by the terms and conditions contained in Ext.A1 and hence respondents cannot travel beyond that. 2. It is not disputed that appellants and respondents got absolute right over their respective properties as per Ext.A1, partition deed. It is also not disputed that as per Ext.A1, the parties are given right to draw water from the tank in A schedule therein through channels for the purpose of irrigation. Learned Munsiff has extracted the relevant clause in Ext.A1 in para 9 of the judgment. It states that all the sharers are bound and entitled to keep intact and use the existing mamool water channel passing through R.S.Nos.647/4, 647/1 and 639/5 and that no sharer can object to the use of water as above stated. It is also stated that no sharer have any manner of right or liability whatsoever over the properties allotted to another sharer except to the above extent. The Advocate Commissioner who inspected the property has reported that in the adjoining property belonging to Govind Batt, pipeline has already been drawn at the S.A.No.136 of 1999 3 instance of the respondents for drawing water from the tank referred to in the A schedule Ext.A1 and that the pipeline has been drawn up to a distance of 15 feet from the boundary of plaint A schedule property. 3. The contention of the appellant is two fold-firstly, Ext.A1 does not contemplate any of the sharers, instead of drawing water through the existing channel lying pipeline for the said purpose and secondly, such a course would cause injury to the appellants who are owners of the servient tenement. It is in this connection that learned counsel has placed reliance on the decision in Velayudhan Vs. Padmanabhan (1988 (2) KLT 417). In that case question considered was whether right of way acquired as a grant of easement by the provisions of the partition deed can be taken as an easement by way of necessity and treated as extinguished when absolute necessity ceased. In paragraph 4 of the judgment it is observed that easement by way of grant is a matter of contract between the parties and it may have its own consideration in some form or other. In the matter of the grant parties are governed by the terms of the grant and not nothing else. 4. There can be no doubt that when the right is result of a grant it is controlled by the terms and conditions agreed upon between the parties. Neither of the parties could deviate from the grant to the disadvantage of the other. 5. The Karnataka High Court in O.S.Anchan Vs. Grace W. S.A.No.136 of 1999 4 Enthat (AIR 1982 KAR 14) considered the scope of section 24 of the Act . That was a case which involved a right of easement for use of the pathway as per a grant. The question considered was whether the dominant owner could raise level of the pathway to prevent soil erosion in rainy season. The issue was answered in the affirmative. As per section 23 of the Act the dominant owner can alter the mode and place of enjoyment of the easement provided that thereby he does not impose any additional burden on the servient heritage. So, section 23 is subject to section 22 of the Act that the dominant owner must exercise his right in the mode which is least onerous to the servient owner. Quoting from Lalbhai Vs. Rao Bahadur Ranchhodlal (1893 B.P.J. 143) in B.B Katyar's “Law of Easements and Licenses in India”, 9th Edition at page 529 it is stated that a change in the mode of discharging water from one piece of land to another by erecting a wall and allowing water to flow through the holes and pipes fitted in it was allowed as not injurious (to the servient owner). Parson J, in Jesang Vs. A.T. Whittle (1899 ILR (23) Bombay 595) referring to section 23 of the Act pointed out that the provision follows law as declared by judicial decisions in the case of Wimbledon Vs. Dixon (1875 (1) Ch.D.362) and Bradburn Vs. Morris (1876 (3) Ch.D.812) that, “the owner of dominant tenement cannot, by changing the S.A.No.136 of 1999 5 character of the occupation of the land in respect of which the right of way or easement exists, imposes a greater servitude upon the owner of the servient tenement” Reading sections 22 and 23 of the Act, it is clear that the dominant owner can alter the place and mode of enjoyment of the easement provided he does not thereby impose any additional burden on the servient owner. F.Peacock in “Law Relating to Easements”, 3rd Edition at page 494 states that when the easement is by way of grant its extent and mode of enjoyment must, in conformity with the general rule, be ascertained from the terms of the instrument itself which are to be construed with reference to the circumstances existing at the date of the instrument. Thus section 22 and 23 of the Act do not in its application exclude an easement by way of grant. It follows that though the general rule is that enjoyment of the grant is to be construed with reference to the terms of the instrument, it is within the power of the dominant owner to alter the mode and place of enjoyment of the grant provided he does not thereby impose any additional burden on the servient owner and provided further it does not amount to a violation of the terms of the instrument. 6. In this case, it is true that as per Ext.A1 what is provided is to draw water through mamool water channel. It has come in evidence through the report of the Advocate Commissioner that a similar right was conferred on the appellants and they have already laid pipeline S.A.No.136 of 1999 6 through their property for the purpose of drawing water from the same tank. To the respondents it is necessary for the convenient and effective enjoyment of the right conferred on them as per Ext.A1 that pipeline is laid through the water channel. Laying of pipeline would enable the dominant owners to enjoy the grant more effectively as is evident from the fact that appellants also have laid pipeline from the water tank through their property. Respondents say that pipeline is to be laid along the trench to be formed in the existing water channel. It is not shown that laying the pipeline in that way would injuriously effect appellants or create additional burden on them. One argument that learned counsel advanced on behalf of the appellants is that when trench is made for laying the pipeline (through the existing water channel) that would result in cutting the roots of arecanut trees standing in the suit property but, there is no data before me to hold so. Trial court has issued appropriate direction to the respondents to avoid any possible inconvenience to the appellants. That in my view would take care of the apprehension of the appellants. I answer the substantial questions of law framed in the above lines. The second appeal fails. It is dismissed. No cost. THOMAS P JOSEPH, JUDGE Sbna/