IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933 SA.No. 217 of 2000(A) --------------------- AS.97/1992 of I ADDL.SUB COURT, IRINJALAKUDA OS.1105/1990 of PRINCIPAL MUNSIFF'S COURT,,IRINJALAKUDA .................... APPELLANT/1ST RESPONDENT/1ST DEFENDANT ---------------------------------------------------------------------- CHANDRAN, SON OF KUNNUMMAKKARA KOCHAYYAPPAN RAPPAL DESOM, PARAPPUKARA VILLAGE MUKUNDAPURAM TALUK BY ADV. SMT.VIDHYA. A.C SRI.SURESH SUKUMAR RESPONDENTS/APPELLANTS & RESPONDENTS 2 TO 6/PLAINTIFF AND DEFENDANTS 2 TO 6 --------------------------------------------------------------------------------------------- 1. BHASKARAN, S/O.KUNNUMMAKKARA KOCHAYYAPPAN RAPPAL DESOM, PARAPPUKARA VILLAGE )( DIED AND LEGAL MUKUNDAPURAM TALUK )( HEIRS IMPLEADED ADV. SRI.T.N.MANOJ FOR ADDL.R7 2. GANGADHARAN -DO- 3. KALI, MOTHER OF APPELLANT AND )( DIED AND RESPONDENTS 1 AND 2 -DO- -DO- )( LRS RECORDED 4. KOCHAMMINI, W/O.LATE RAMAN -DO- 5. SURENDRAN, S/O.LATE RAMAN 6. RAGHU (MINOR) -DO- ADDL.RESPONDENTS : --------------------------------- 7. M K KARTHIYANI, W/.LATE BHASKARAN KUNNUMMAKARA HOUSE, PARAPPUKKARA VILLAGE MUKUNDAPURAM TALUK, THRISSUR DISTRICT 8. K B DIVAKARAN, S/O.LATE BHASKARAN KUNNUMMAKKARA HOUSE, NANDIKARA NELLAI THRISSUR DISTRICT SA 217/00 -2- 9. K B VALSALA, D/O.LATE BHASKARAN KUNNUMMAKKARA HOUSE PARAPPUKKARA VILLAGE MUKUNDAPURAM TALUK, THRISSUR DISTRICT 10. K B USHA, -DO- 11. K B GEETHA, -DO- 12. K B AJITHA, -DO- (THE DEATH OF R1 IS RECORDED AND LRS OF DECEASED RESPONDENT NO.1 ARE IMPLEADED AS ADDL.RESPONDENTS 7 TO 12 AS PER ORDER DT.25.7.11 ON IA NO.1973/2008) (THE DEATH OF RESPONDENT NO.3 IS RECORDED AND THE SOLE APPELLANT AND RESPONDENTS 1, 2, 4, 5 AND 6 ARE RECORDED AS HER LRS AS PER ORDER DT.29.07.2011 VIDE MEMO CF 5278/08 DT.2.09.2008) THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03.10.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.BHAVADASAN, J. ------------------------------------- SA No.217 of 2000-A ------------------------------------- Dated this the 3rd day of October 2011 Judgment The first defendant in OS No.1105/90 before the Munsiff's Court, Irinjalakuda, is the appellant. 2. The suit was one for injunction. The trial court dismissed the suit, but the lower appellate court decreed the suit. During the pendency of the appeal before this court, respondents 1 and 3 passed away and their legal heirs have been brought on the party array as additional respondents. The parties and facts are hereinafter referred to as they are arrayed before the trial court. 3. The parties are relatives. The plaintiff relies on Ext.A1 dated 6.5.1969 in order to establish his right and claim over a pathway, which he says has been provided under the said deed. His case was that the defendant is trying to obstruct his use of the said SA 217/00-A 2 pathway and the defendant has no right to do so. The description in Ext.A1 is so clear to the effect that the other sharers are not entitled to obstruct the use of the pathway by the plaintiff. He therefore laid the suit. 4. The first defendant resisted the suit. He did not actually dispute the recital in Ext.A1 document, but put forward a contention that the way made mention of in Ext.A1 had never come into existence and that the way has never been used by the plaintiff. It is also contended that the way was not a continuous one and cannot be made use of by the plaintiff to gain access to the main road. Further, it was contended that the plaintiff has direct access to a main road on the southern side and he is using the said way for ingress and egress to his property. On the basis of these contentions, the defendants prayed for dismissal of the suit. SA 217/00-A 3 5. Defendants 2 to 5 remained ex parte. The written statement filed by the 6th respondent supported the contentions raised by the first defendant in his written statement. 6. On the above pleadings, necessary issues were raised. Evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendants had DW1 examined and Exts.B1 and B2 marked. 7. The trial court, on an appreciation of the evidence, came to the conclusion that there is no evidence to show that a way was in existence and also that it was a continuous one and accordingly, non- suited the plaintiff. 8. The aggrieved plaintiff carried the matter in appeal as AS No.97/92. The lower appellate court, by a strange reasoning, decreed the suit. The lower SA 217/00-A 4 appellate court was of the view that in view of the recital in Ext.A1, the burden was on the contesting defendant to show that the way as contended did not exist and as that has not been done, a decree has to follow. Accordingly, a decree was granted. It is the said judgment and decree that are assailed in the second appeal. 9. Notice is seen issued on the following questions of aw raised in the second appeal : (a) Can a person having no right over a property confer a right of easement by grant over such a property ? Would the provision in A1 partition deed, partitioning the properties of Kochayyappan of a way through the Reppal Thevermadathil paramba over which the parties to the deed had no legal right, create any legally enforceable right ? SA 217/00-A 5 (b) When the way provided in A1 deed is not continuous, can the court grant an injunction for the portion for which no way is provided ? © In a suit for injunction on the basis of an easement of right of way was not it obligatory on t he plaintiff to take out a commission and demarcate the pathway claimed by him before he can claim a decree of injunction ? (d) Was the lower appellate court legally right in dismissing the application of the 1st defendant for appointment of an Advocate Commissioner for local inspection and report and at the same time finding fault with the 1st defendant for not taking out a commission to establish his case ? (e) In the facts and circumstances of the case, was the lower appellate court justified in reversing the decree of the trial court ? SA 217/00-A 6 10. The learned counsel for the appellant pointed out that the lower appellate court was not justified in throwing the burden on the defendant to show that there did not exist a way as contained in Ext.A1 in the light of the contention taken by the first defendant that though there was a way mentioned in Ext.A1, it had never come into existence and it has never been used by the plaintiff. The burden was on the plaintiff to show the existence of a pathway. The learned counsel also pointed out that for reasons best known to the plaintiff, he did not choose to have a commission taken out to establish that there does exist a way. Nor did he adduce any evidence except to examine himself to show that the way as stated in Ext.A1 is in existence and is being used as of now. The learned counsel went on to contend that the lower appellate court has misdirected itself on facts and that SA 217/00-A 7 has resulted in a wrong decree being passed. 11. The learned counsel for the respondents, on the other hand, pointed out that Ext.A1 is a typical example of an easement by grant and that it is not extinguished under S.41 of the Indian Easement Act. Once it is shown that a way is made mention of in a document, it is for the other side who dispute the existence of the way to show that the way is not being used. The learned counsel went on to point out that unlike in the case of easement by necessity and easement by prescription, in the case of easement by grant, it may be either express or implied and normally even occasional use is sufficient to continue the exercise of the said right. In support of the said contention, the learned counsel relied on the decisions in V.K.Ramasami Gounder v. P.Ramasami Gounder (1997(2) MLJ 223) and Hero Vinoth v. Seshammal SA 217/00-A 8 (2006) 5 SCC 545). The learned counsel went on contending that the lower appellate court was justified in its views and that no grounds are made out warranting interference with the judgment and decree of the lower appellate court. 12. The dispute involved in this case centers round a pathway. It is admitted by both sides that the way which is in dispute and which is the subject matter of this suit is a way made mention of in Ext.A1 to which both the plaintiff and the defendants are parties. While the plaintiff would say that he has been using the way made mention of in Ext.A1 and the first defendant is now obstructing the use of the same, the first defendant would say that the way made mention of in Ext.A1 has never come into existence and that was never used by the plaintiff. SA 217/00-A 9 13. In the decision reported in V.K.Ramasami Gounder v. P.Ramasami Gounder (1997(2) MLJ) 223) it was held as follows : “The learned counsel also invited my attention to some of the decisions, to which reference may be made hereinafter. In R.Sivanandan and others v. Rajammal and another (1975) 1 MLJ 251, a learned single Judge of this Court was dealing with the question of easementary right claimed in the context of Secs.13 and 41 of the Indian Easements Act, 1882. The learned Judge, after an elaborate consideration of the case law, on the subject, held that a grant of easement need not necessarily be in express terms, but it is enough, if it can be gathered as a matter of necessary implication from the SA 217/00-A 10 recitals in the document, construed if necessary in the light of the circumstances then existing that an easement acquired by grant cannot be extinguished on the grounds stated in Sec.41 of the Easements Act. It was also observed therein that there is no difference in this respect between an express grant and a grant by necessary implication on a true construction of the deed and where an easement is acquired by grant either expressly or by necessary implication, it will not amount to an easement of necessity under Sec.13 of the Act for the purpose of being liable to be extinguished under Sec.41 of the Act and that there was no justification to hold that an easement of express grant or by necessary implication cannot be taken to SA 217/00-A 11 have been extinguished even when die necessity ceases as enacted in Sec.41 of the Act.” 14. In the decision reported in Hero Vinoth v. Seshammal (2006) 5 SCC 545), it was held as follows : “28. 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 SA 217/00-A 12 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 express or even by necessary implication. In either case, it will not amount to an easement of necessity under Section 13 of the Act 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. When there is nothing in the term of the grant in this SA 217/00-A 13 case that it was to continue only until such time as the necessity was absolute, in fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognised and the servient tenement will be recognised and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Section 13 nor is it extinguished by the statutory provision under Section 41 of the Act which is applicable only to easement of necessity arising under Section 13. 29. An easement by grant does not get extinguished under Section 41 of the Act which relates to an easement of necessity. SA 217/00-A 14 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 SA 217/00-A 15 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.” 15. The principles regarding easement by grant are well settled. Even though it is unlike in the case of easement by necessity, easement by grant continues to exist even after the easement by necessity ceases. S.47 of the Indian Easement Act may be referred to in this regard. Section 47 reads as follows : “47. Extinction by non-enjoyment - A continuous easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period of twenty years. SA 217/00-A 16 A discontinuous easement is extinguished when for a like period, it has not been enjoyed as such. Such period shall be reckoned in the case of a continuous easement from the day on which its enjoyment was obstructed by the servient owner or rendered impossible by the dominant owner and in the case of a discontinuous easement, from the day on which it was last enjoyed by any person as dominant owner ; Provided that it in the case of a discontinuous easement the dominant owner within such period, registers under the Indian Registration Act, 1877 (3 of 1877) a declaration of his intention to retain such easement, it shall not be extinguished until a period of twenty years SA 217/00-A 17 has elapsed from the date of the registration. Where an easement can be legally enjoyed only at a certain place or at certain times, or between certain hours, or for a particular purpose, its enjoyment during the said period at another place or at other times or between other hours, or for another purpose does not prevent its extinction under this section. The circumstance that during the said period, no one was in possession of the servient heritage or that the easement could not be enjoyed or that a right accessory thereto was enjoyed or that dominant owner was not aware of its existence or that he enjoyed it in ignorance of his right to do so, does not prevent its extinction under this section. An easement is not extinguished under this SA 217/00-A 18 section - (a) where the cessation is in pursuance of a contract between the dominant and servient owners ; (b) where the dominant heritage is held in co- ownership, and one of the co-owners enjoys the easement within the said period or (c) where the easement is a necessary easement. Where several heritages are respectively subject to rights of way for the benefit of a single heritage and the ways are continuous, such rights shall, for the purposes of this section, be deemed to be a single easement.” Section 45 applies to easement by grant also. 16. There can be no doubt that a way was provided for in Ext.A1, by way of easement by grant. SA 217/00-A 19 But the question remains as to whether the way had ever come into existence and whether the plaintiff was using it. The defendants have specifically contended that though a way is made mention of in Ext.A1, it never came into existence and it was never used by the plaintiff. Of course, when examined as DW1, the first defendant has to concede that a way is made mention of in Ext.A1 and also that he was aware of the recitals in the said document. He also conceded the acceptance of the recital regarding the income from the trees standing in the property. 17. The plaintiff was examined as PW1 and he asserted that he is using the way. But, it was brought out in the cross examination that there was a much shorter and more convenient way for access to the main road and that the way made mention of in Ext.A1 is a circuitous route. In the light of the stand taken by the SA 217/00-A 20 first defendant that the way as mentioned in Ext.A1 has not come into existence, the burden was on the plaintiff to show that the way did exist and that he was using it. Since the first defendant was specific in his contention that the way never existed, one would have expected the plaintiff to take out a commission and establish that there is a way in existence and even assuming that he was not using it frequently. The lower appellate court seems to have thrown the burden on the defendant to show that there is no such way in existence. One fails to understand how one can be asked to prove a negative fact. It was for the plaintiff to establish the said fact. Once he is able to show that there was a way as provided under Ext.A1, then certainly, the burden shifts to the defendant to show that there was no way in existence. Here, the case of the defendant was that though under Ext.A1 a way was provided, it never came SA 217/00-A 21 into existence. The result is that there is nothing on record to show that there existed a way as recited in Ext.A1 and its use by any of the sharers. In the nature of the contentions, the burden was on the plaintiff to show that there was a way in existence pursuant to Ext.A1. Even assuming that it is not used frequently, at least the existence of the way could have been established. The trial court has considered all the aspects and has found that the plaintiff has miserably failed to establish his case. The lower appellate court, on the other hand, found that the burden was on the defendant to prove that there was no pathway in existence. It is difficult to support the said view of the lower appellate court. The burden was on the plaintiff to prove that even though he was not using the way frequently, there existed a pathway as provided in Ext.A1. In the absence of any SA 217/00-A 22 such evidence, the judgment and decree of the lower appellate court cannot be sustained. Accordingly, this appeal is allowed. The judgment and decree passed by the lower appellate court are set aside. The Judgment and decree passed by the trial court are restored. No order as to costs. P.Bhavadasan, Judge sta SA 217/00-A 23