IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 RSA.No. 127 of 2007() --------------------- AGAINST THE JUDGMENT DATED 21/06/2006 IN AS 122/00 AND AS.121/2000 of SUB COURT, NEYYATTINKARA OS.168/1997 of II ADDL.MUNISFF'S COURT, ,NEYYATTINKARA .................... APPELLANT/APPELLANT/PLAINTIFF ----------------------------- GANGADHARAN NADAR ALIAS RAJAYYAN, S/O.KRISHNAN OF KANJIRAMKULAMAYA THADATHILKULATHU PUTHEN BUNGALOW, KAZHIVOOR DESOM, KARINKULAM VILLAGE, RESIDING AT TC NO.43/366(5) KAMALESWARAM, THIRUVANANTHAPURAM. BY ADV. SRI.S.JAMES VINCENT RESPONDENT/RESPONDENT/DEFENDANT --------------- GOPI NADAR, ALIAS MATHAVAN, S/O.KRISHNAN NADAR, S.S.MANDIRAM, KAIVANVILA, KAZHIVOOR DESOM, KARINKULAM VILLAGE, NEYYATTINKARA TALUK. ADDL. 2. SHIJU, D/O.GOPI ;ALIAS MATHAVAN, RESIDING AT SABU NILAYAM, THADATHILKULAM, KANJIRAMKULAM VILLAGLEAND POST, NEYYATTINKARA TALUK. '' 3. SHAJIMON, FROM PILAVUNINNA VADAKKE VEEDU, NOW RESIDING AT - DO -DO (ADDL. R2 AND R3 ARE IMPLEADED AS PER ORDER DTD. 1/8/07 IN I.A.NO.1360/07) ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) FOR R1&ADDL.R2&3 SRI.A.R.DILEEP FOR R1 & ADDL.R1 & 2 SMT.KAVITHA GANGADHARAN FOR R1 SMT.SURYA SASI FOR ADDL.R2 & 2 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.S.A.NO.127 OF 2007 --------------------------- DATED THIS THE 22ND DAY OF JULY, 2009 JUDGMENT Plaintiff in O.S.No.168/97 on the file of the II Additional Munsiff's Court, Neyyattinkara is the appellant. This appeal is directed against the judgment and decree in A.S.Nos.121 & 122/2000 on the file of the Sub Court, Neyyattinkara. 2. The suit was filed for injunction. The trial court dismissed the suit and allowed the counter claim. The plaintiff filed two appeals as A.S.Nos.121/2000 and 122/2000 against the decree and judgment passed in the said suit. The decree and judgment of the trial court was confirmed by the Appellate Court. Hence this second appeal. 3. The plaintiff's case is that A schedule property belongs to him and B schedule property belongs to the defendant, who is none other than his brother. Plaint A and B schedule properties -2- R.S.A.No.127/2007 are obtained by the respective parties as per Ext.A1 partition deed dated 15/09/1996. It is averred that there was an old building in plaint A schedule property. That was demolished and he had constructed a new building. The plaintiff wanted the building to be constructed in such a way as touching the boundary in between the properties of the plaintiff and defendant. The plaintiff has approached the defendant and the defendant permitted the plaintiff to construct the building touching the boundary of plaint A and B schedule properties. The consent letter is marked as Ext.X1. The consent letter was given by the defendant to the Secretary of the Panchayat. On the basis of the consent the Panchayat approved the plan and issued licence to the plaintiff and the plaintiff constructed a two storied building in the property. 4. The grievance of the plaintiff is that since the defendant is in inimical terms with him, he has not permitted the plaintiff to plaster the western and northern walls of the building. The said -3- R.S.A.No.127/2007 work can be carried out only by entering into the property of the defendant. The plaintiff averred that the defendant has permitted the plaintiff to construct the building touching the boundary of the plaint A and B schedule property and by the said conduct the defendant acquiesced the construction and due to the acquiescence of the defendant the obstruction made by him is unlawful. The defendant is obstructing the plaintiff from entering into his property for doing the plastering work. The plaintiff claims easement right, alleging that he has the right to enter into the property of the defendant for doing the maintenance work of the building. In such circumstances, he prayed for a decree of injunction restraining the defendant from obstructing the plaintiff's entry into the property of the defendant for carrying out the aforesaid maintenance work. 5. The suit was resisted by the defendant. According to the defendant, it is the plaintiff, who requested the defendant to grant permission for constructing a building within his property -4- R.S.A.No.127/2007 touching the boundary. Consent was given on the assurance given by the plaintiff that he will not alter the boundary. It is further averred by the defendant that while he was out of station, the plaintiff demolished the compound wall and constructed a building encroaching upon the property of the defendant. On coming to know about his illegal act, the defendant had withdrawn the permission given to the plaintiff and preferred a complaint before the Panchayat Authority. Considering the objection raised by the defendant the Panchayat directed the plaintiff to construct the building leaving 1.5 metres space. It is further averred that the condition of the permission was violated and the building was constructed encroaching upon the property of the defendant. In short the defendant resisted the prayer of the plaintiff and contended that there was no acquiescence on his part and that the plaintiff, who has committed illegal act, is not entitled to get the relief as prayed for. It is also pleaded that there is no easement right as claimed by the plaintiff. Besides the -5- R.S.A.No.127/2007 aforesaid contentions, the defendant filed a counter claim for a decree directing demolition of the portion of the building constructed in violation of the building rules encroaching upon his property and over the boundary line separating the property. 6. Both sides adduced evidence in support of their respective contentions. Plaintiff was examined as PW-1 and Exts.A1 to A9 were marked and on the defendant's side DWs-1 to 3 were examined and Exts.B1 to B3 were marked. Exts.C1, C1(a), X1 and X2 were also marked. 7. The trial court considered elaborately the question raised by the parties and held that plaintiff cannot claim any right on the basis of the contract evidenced by Ext.X1 and therefore the relief of injunction was declined. The relief claimed by the defendant in the counter claim was also separately examined. The trial court considered the relief claimed for declaration of title and mandatory injunction as sought for by the defendant. The trial court held that it will not be equitable to grant a decree for -6- R.S.A.No.127/2007 mandatory injunction for demolishing the building constructed by the plaintiff. The reason stated is that the plaintiff spent a lot of money for the construction of the two storied building and therefore, it is not prudent to grant a decree for mandatory injunction. At the same time, the court took the view that the defendant in this case can be adequately compensated by payment of damages. After relying on Ext.C1(a) plan the trial court held that the boundary separating the plaintiff's property and the defendants property lies through 'KFJIB' in Ext.C1(a) plan. At the same time, the trial court entered the finding that the plaintiff is not entitled to get a decree for demolishing the building and therefore, the plaintiff cannot put up boundary through 'BIJK' line which separates plaintiff's property and defendant's property and held that the boundary line can be fixed through KF line as stated in Ext.C1(a) plan. Thus the trial court, after considering the entire facts and circumstances in detail, dismissed the suit and allowed the counter claim declaring title -7- R.S.A.No.127/2007 and possession of the defendant over written statement schedule property and restrained the plaintiff by an order of permanent prohibitory injunction from trespassing into the said property. The parties are permitted to put up boundary through KF line in Ext.C1(a) plan. 8. The very same questions were considered by the Appellate Court in the two appeals filed by the plaintiff. The Appellate Court also, after considering the questions raised before it, held that no grounds are made out by the appellant to interfere with the findings entered by the trial court. 9. The learned counsel for the appellant contended that the courts below did not consider the question of easement right under Section 13 of the Easement Act and therefore the reasoning of the courts below cannot be sustained. According to the learned counsel, the courts below ought to have found that the plaintiff has the right of easement of necessity or quasi-easement for plastering and maintaining the rear wall of the building in the A -8- R.S.A.No.127/2007 schedule property and effect maintenance to it by entering upon the strip of land and putting up a temporary scaffold on the B schedule property for the proper maintenance, safety and security of the plaintiff's building. It is also contended that once the consent had been given, it would amount to a licence coupled with interest and that it is not revocable as the licensee had completed the construction, which is of permanent character, by spending huge amount. Therefore, the courts below ought to have held that Ext.X2 consent is not irrevocable under Section 60(b) of the Easement Act. 10. After hearing the learned counsel on both sides, I am of the view that Section 13 is not applicable to this case. The scope of the consent given by the defendant is also limited. Since the plaintiff applied for plan and permit, only insisted the consent of the defendant, as he wanted to construct the building in such a way touching the boundary of the plaint A and B schedule properties. In such circumstances, the plaintiff approached the -9- R.S.A.No.127/2007 defendant and the defendant has given consent to the plaintiff to construct the building in his own property along the boundary between plaint A and B schedule properties and permission was granted and the construction was made. Now the claim of the plaintiff is that he has the right of easement of necessity or quasi- easement under Section 13 of the Easement Act for plastering and maintaining the rear wall of the building in the plaint A schedule property and effect periodical maintenance to it. I have gone through Section 13 of the Easement Act which confers easements of necessity and quasi-easements. Section 13 (a) stipulates that where one person transfers or bequeaths immovable property to another, if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement. 11. Though the property was partitioned between the plaintiff, defendant and others long back and while they were -10- R.S.A.No.127/2007 enjoying the property, the plaintiff wanted to construct a building in the property. Now the easement right sought for is not for enjoyment of the property, which was partitioned among the sharers; but the right sought for is for supporting the newly constructed building of the plaintiff. I do not think that Clause (a) of Section 13 is attracted. The learned counsel also brought to my notice Section 13 (e) of the Act, which stipulates that where a partition is made of the joint property of several persons, if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement. According to me, that provision is not applicable for the same reason as stated above. In fact, the trial court and the Appellate Court considered the respective contentions of the parties and moulded the relief in such a way that both sides can enjoy their own properties without much difficulty. In fact, the actual boundary line separating two properties is different. For the purpose of facilitating the plaintiff to enjoy the building -11- R.S.A.No.127/2007 constructed by him, a lenient view was taken by the courts below and declared that the existing boundary shall be the boundary between the two properties. 12. In such circumstances, the courts below granted certain relief to the plaintiff as well. I do not think that the appellant has made out any grounds to interfere with the findings entered by the trial court, which was confirmed by the Appellate Court. The trial court and the Appellate Court considered all the contentions of the parties and passed a decree and judgment facilitating the parties to enjoy the respective properties without any further dispute. No question of law much less any substantial question of law arises for consideration. In the result, the appeal fails and it is accordingly dismissed. HARUN-UL-RASHID, Judge. kcv.