IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 SA.NO. 155 OF 2001() ------------------------------- AS.41/1997 OF I ADDL.SUB COURT,TRIVANDRUM OS.508/1990 OF I ADDL.M.C.,TRIVANDRUM .................... APPELLANT(S) - RESPONDENT - PLAINTIFF: ----------------------------------------------------------- S. RAJU, S/O. SUBHAYYAN, ENGINEER, T.C.5/803, INDIRA NAGAR, NEAR THEKKETH TEMPLE, PEROORKADA, THIRUVANANTHAPURAM. BY ADV. SRI.P.GOPALAKRISHNAN NAIR SRI.P.A.AHAMMED RESPONDENT(S) - APPELLANT - DEFENDANT: ------------------------------------------------------------- K. RAVINDRAN NAIR, GOVERNMENT AYURVEDA DOCTOR, T.C.5/309, NEAR THEKKETH TEMPLE, INDIRA NAGAR, PEROORKADA, THIRUVANANTHAPURAM. ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR FOR R1 SRI.S.P.ARAVINDAKSHAN PILLAY FOR R1 SRI.PIRAPPANCODE V.S.SUDHIR FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.155 of 2001 -------------------------------------- Dated this the 30th day of March, 2009. JUDGMENT The following substantial questions of law are raised for a decision in this Second Appeal at the instance of the appellant/plaintiff: (i) Whether the first appellate court was right in reversing the decree passed by the trial court when it was clearly established that the appellant was using the 'B' schedule pathway as easement by grant under Ext.A2, sale deed? (ii) The title document itself provides for the pathway by the vendor, can a transferee under the very same vendor obstruct the right granted by the vendor, when the right of easement is admitted? 2. Short facts necessary for a decision of the above substantial questions of law are: Neelakanta Pillai, assignor of the appellant owned a total extent of 62 cents lying in rectangular shape and bounded by Peroorkada - Madathuvilakam road on the north and a thodu on the south (See Ext.C1(b)). Of the said 62 cents, Neelakanta Pillai settled 47 cents extending north-south and towards the western and southern portion of the total extent (shown in Ext.C1(b) in 'L' shape) in favour of his daughter, Padmakumari Amma as per Ext.B1, settlement deed No.279 of 1980 dated 24.1.1980. Plot A (6 ½ cents) and Plot B SA No.155/2001 2 (7 cents) in Ext.C1(a) forms part of the remaining 15 cents Neelakanta Pillai had. While so, plot A (6 ½ cents) forming the southern portion of the said 15 cents was assigned to the appellant/plaintiff as per Ext.A2, assignment deed No.397 of 1980 dated 4.2.1980 providing a right of way to the said 6 ½ cents (plot A in Ext.C1(a)) east of the 47 cents settled in favour of his daughter as per Ext.B1 and along the western portion of the remaining seven (7) cents retained by Neelakanta Pillai. That way originated from the road on the north and ended at the north-western portion of plot A. Plot A in Ext.C1(a) is the plaint A schedule property and the disputed way is the plaint B schedule. Later, Neelakanta Pillai assigned the remaining 7 cents as per Ext.B2, assignment deed No.3262 of 1980 dated 3.11.1980 in favour of the respondent/defendant (plot B in Ext.C1 (a)), his son-in-law. Alleging that respondent attempted to obstruct the right of way through plaint B schedule, appellant filed the suit for declaration of his right of access through the plaint B schedule and for injunction. The suit was resisted by the respondent contending that no such way as described in plaint B schedule was granted in favour of the appellant as per Ext.A2 and that the way referred to in Ext.A2 ended at the north-western corner of the plaint A schedule (plot A in Ext.C1(a)) assigned to the appellant as per that document. It is also the contention of the respondent that the intention of Neelakanta Pillai while providing a way in Ext.A2 was that himself and his successors also should use the said way. It was not a grant in favour of the appellant exclusively. Learned Munsiff accepted the case of the appellant and found that the way provided in SA No.155/2001 3 Ext.A2 is CDEF in Ext.C1(a) and granted decree as prayed for. In appeal at the instance of the respondent, first appellate court found that the way referred to in Ext.A2 is not CDEF in Ext.C1(a), the way provided as per Ext.A2 is CEF as shown in Ext.C1(a) and accordingly reversed the judgment and decree of the learned Munsiff. The judgment and decree of the first appellate court are under challenge in this Second Appeal. 3. It is contended by the learned counsel for appellant that the first appellate court has wrongly interpreted the grant under Ext.A2. Learned counsel placed reliance on the decision in Velayudhan v. Padmanabhan (1988 (2) KLT 417) to contend that even the existence of an alternate way will not extinguish the right of the appellant as per Ext.A2. Learned counsel for respondent contended that when a right of way is granted expressly as per a document, the grant must be interpreted strictly as recited in the document. According to the learned counsel the intention of Neelakanta Pillai which could be gathered from Ext.A2 was that the way provided in Ext.A2 was not merely for the use of the appellant alone but for the use of himself and his successors, the way stated in Ext.A2 is EFC in Ext.C1(a) and making use of portion of the 47 cents belonging to the wife of the respondent as per Ext.B1 also, a way has been provided. According to the learned counsel, the way thus available is EFGC in Ext.C1(a). SA No.155/2001 4 4. There cannot be any dispute that when a right of way is granted as per a document, the grant is governed by the terms and conditions provided in the document and that the grant must be strictly interpreted as provided in the document. It is also settled position of law that the mere fact that the grantee acquires an alternate way grant will not extinguish the right granted. It is not disputed that before Neelakanta Pillai assigned plaint A schedule property (6 ½ cents marked as plot A in Ext.C1(a)) to the appellant as per Ext.A2, he had settled the 47 cents on its west and south to his daughter, as per Ext.B1. It is also not disputed that at the time Ext.A2 was executed, Neelakanta Pillai had right, interest and possession of only 15 cents excluding the said 47 cents on the west and south of the said 15 cents. What is stated in Ext.A2 regarding the way is thus: SA No.155/2001 5 The way referred to in Ext.A2, it is clear, is provided east of the said 47 cents covered by Ext.B1 and along the western side of plot B (in Ext.C1(a)) which was later assigned to the respondent as per Ext.B2, originating from the road on the north of plot B and terminating at the north-western portion of plot A in Ext.C1(a) which is the plaint A schedule. If the contention of the respondent that the way provided in Ext.A2 is CEF were to be accepted, it should mean that the said way was provided in Ext.A2 making use of a portion of the 47 cents on the western side and settled in favour of Padmakumari Amma as per Ext.B1. There is no reason to think that Neelakanta Pillai provided and without the junction of SA No.155/2001 6 Padmakumari Amma could provide such a way making use of any portion of the 47 cents which he had already settled in favour of her as per Ext.B1. Neelakanta Pillai could not have done so. In Ext.B2, the assignment deed executed by Neelakanta Pillai in favour of his son-in-law (respondent) concerning plot B in Ext.C1(a) - 7 cents - the schedule description shows that what is assigned to the respondent is the 7 cents excluding the way provided along the western side. Therefore the entitlement of the respondent as per Ext.B2 is for the property (plot B in Ext.C1(a)) excluding the way along the western side. 5. Learned counsel for respondent contended that in Ext.A2, while describing the way it is stated that the way is to terminate on the north-western corner of the plaint A schedule property which is 'point C' in Ext.C1(a) with '0' links width at 'point C'. Learned counsel contended that if the way is to thus end at 'point C' in Ext.C1(a), there was no possibility of any way having width of 12 links being left to 'point D' from 'point C' as shown by the advocate commissioner in Ext.C1(a). According to the learned counsel this, when taken along with Neelakanta Pillai reserving a right to use the said way for himself and his successors would indicate that the way referred to in Ext.A2 is not CDEF in Ext.C1(a), but it is CEF. Learned counsel also relies on Ext.B3, copy of assignment deed dated 16.10.1985 executed by Padmakumari Amma in respect SA No.155/2001 7 of a portion of the property towards the southern portion of the 47 cents (south of plot A in Ext.C1(a) - plaint A schedule). As per Ext.B3, a way is provided towards the property disposed of by that document. 6. I am afraid that interpretation of the learned counsel cannot be accepted, reason being that in Ext.A2, the width of the way is stated as 12 links. It is stated in Ext.A2 that the way is to originate from Peroorkada- Madathuvilakam road on the north and terminate at the north-western corner of plaint A schedule. I am unable to understand that the recital in Ext.A2 that the way is upto the north-western portion of plot A in Ext.C1(a) (plaint A schedule) meant that it should end at point C with '0' links width making entry to plot A from the said way just impossible. When Ext.A2 states the width of the way as 12 links and that way is provided through the property retained by Neelakanta Pillai, I am inclined to understand it as meaning a way having width of 12 links throughout through the property of Neelakanta Pillai and reaching upto the north- western portion of plot A (plaint A schedule) making it possible for the appellant to have access to his property through the said way. 7. True that it is stated in Ext.A2 that Neelakanta Pillai and his successors-in-interest will also have a right to use the way provided in Ext.A2. But it is pertinent to note that of the 62 cents which belonged to Neelakanta SA No.155/2001 8 Pillai, 47 cents on the west of plots A and B and south of plot A marked in Ext.C1(a) had already been settled in favour of his daughter, Padmakumari Amma as per Ext.B1. What is stated in Ext.A2 is that, As at the time of Ext.A2, Neelakanta Pillai had already disposed of the 47 cents on the west and north of the 15 cents (including plots A and B in Ext.C1(a)), I am inclined to think that the said reservation was made in Ext.A2 not for the use of Padmakumari Amma but only for the use of Neelakanta Pillai and his successors-in-interest so far as the rest of the property Neelakanta Pillai was holding at the time of Ext.A2 (ie., plot B in Ext.C1(a), sold to the respondent after Ext.A2). The interpretation given by the learned counsel for respondent that the way provided in Ext.A2 is EFC in Ext.C1(a) ending at 'point C' with '0' links width at that point is difficult to be accepted. Ext.B3 being a document executed by Padmankumari Amma cannot govern the grant made by Neelakanta Pillai as per Ext.A2. The interpretation given by the first appellate court is erroneous and does violence to the grant as per Ext.A2. The wrong interpretation given to the right of way granted as per Ext.A2 has resulted in the SA No.155/2001 9 reversal of the judgment and decree of the trial court which rested on a proper appreciation of the evidence and pragmatic interpretation of the relevant recitals in Ext.A2. The substantial questions of law raised are answered in favour of the appellant. The judgment and decree of the first appellate court cannot be sustained. Second Appeal has to succeed. In the result, this Second Appeal is allowed. The judgment and decree of the first appellate court are set aside and that of the trial court are restored. No costs. C.M.P.No.313 of 2001 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.155/2001 10 Thomas P.Joseph, J. S.A.No.155 of 2001 JUDGMENT 30th March, 2009.