Sree
Swayam Prakash Ashramam & ANR. Vs. G. Anandavally Amma & Ors [2010] INSC
7 (5 January 2010)
Judgment
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7 OF
2010 (Arising out of SLP (C) No. 17235 of 2006) Sree Swayam Prakash Ashramam
& Anr. ...Appellants VERSUS G. Anandavally Amma & Ors. ...Respondents
TARUN
CHATTERJEE, J.
1.
Delay condoned.
2.
Leave granted.
3.
This appeal is directed against the judgment and order dated 9th
of May, 2006, passed in Second Appeal No.198 of 2000 of the High Court of
Kerala at Ernakulam, by which the High Court had affirmed the concurrent
findings of fact arrived at by the courts below in a suit for declaration of
easement rights in respect of `B' Schedule property of the plaint as a pathway
to the `A' Schedule property of the plaint.
4.
It may be mentioned that during the pendency of the second appeal
before the High Court of Kerala, the original plaintiff expired and his legal
representatives were brought on record as substituted respondents before the
High Court, who are respondents in this appeal. For the sake of convenience, the
appellants herein would be referred to as `the defendants' as they were in the
original suit for declaration of easement and permanent injunction filed by the
original plaintiff, who is now represented by the respondents herein.
5.
The case that was made out by the plaintiff (since deceased), in
his plaint was as follows: Plaint A and B schedule properties originally formed
part of a vast extent of properties which belonged to one Yogini Amma. During
the life time of Yogini Amma, she was in enjoyment and management of the entire
property for the benefit of the first defendant Ashramam. On her death, her
brother and sole legal heir Krishna Pillai and other disciples executed a
settlement deed dated 20th of June, 1948 as per the 3 directions of the deceased
Yogini Amma. As per the settlement, the Schedule `A' property of the plaint was
allotted to the original plaintiff (since deceased). Even thereafter, the
original plaintiff (since deceased) continued to be in possession and enjoyment
of the said properties effecting mutation and paying taxes. Even before the
settlement deed was executed, during the life time of the said Yogini Amma,
there is a building being `A' schedule property of the plaint that was in
occupation of the original plaintiff (since deceased). There is a gate provided
on the South Western portion of the `A' schedule property for ingress and
egress to the same and `B' schedule property of the plaint which is a pathway
extends up to the road on the West from the said gate. The said gate and `B'
schedule pathway are as old as the building in `A' schedule property of the
plaint. Other than `B' schedule pathway, there is no other means of direct or
indirect access to `A' schedule property of the plaint from any road or
pathway. The `B' schedule pathway of the plaint was granted to the original
plaintiff (since deceased) as easement right by the said 4 Yogini Amma and the
original plaintiff (since deceased) continued to use it as such from time
immemorial. This pathway is situated within the property which is now under the
control and use of the defendants. Defendant Nos. 2 to 4 tried to close down
the gate on the South Western extremity of the B schedule pathway and were also
attempting to change the nature and existence of the `B' schedule property of
the plaint. An attempt in that direction was made on 21st of July, 1982.
Original plaintiff (since deceased) apprehended that defendant nos. 2 to 4
might forcibly close down the pathway. Hence, he filed a suit for declaration
of easement of necessity or of grant and permanent injunction restraining the
defendants from obstructing the `B' schedule pathway and for other incidental
reliefs.
6.
The defendant No.1 was the Matathipadhi of the Ashramam; defendant
Nos. 2 and 3 were its office bearers and defendant No.4 was only an inmate of
the Ashramam.
Defendant
Nos. 1 to 4 entered appearance and filed a joint 5 written statement praying
for dismissal of the suit by making the following defence:
The suit
was not maintainable. The description of `A' schedule and `B' schedule
properties was incorrect. The original plaintiff (since deceased) was attached
to the institution from his childhood. In consideration of the love and
affection Yogini Amma had towards the original plaintiff (since deceased), she
wished to gift some portion of the property to him and in pursuance thereof,
Ashramam represented by the then office bearers executed a settlement deed in
respect of the properties. Original plaintiff (since deceased) was the 13th
signatory in the said settlement deed.
There is
a pathway provided in the settlement deed on the Eastern extremity of the
Ashramam properties. There is yet another lane which comes along the Western
side of the Ashramam property through which also the plaintiff has access to
his property. It is incorrect to say that Plaint `B' schedule is meant as a
pathway for ingress and egress to `A' schedule property and that other than `B'
schedule property there is no other means of direct or indirect access to `A' 6
schedule property of the plaint. The further allegation that the pathway was
granted by the said Yogini Amma to the original plaintiff (since deceased) and
that he was using it from time immemorial was also not correct. Originally,
there was a narrow pathway which was widened to accommodate traffic to the
Ashramam. The present pathway came into existence only within the last 10
years. It can never be considered as an easement of necessity. Original
plaintiff (since deceased) has no easmentary right to use the gate and the
pathway and he was not entitled to the declaration or injunction prayed for.
Therefore,
the suit in the circumstances must be dismissed with costs to the defendants.
7.
The IInd Additional Munsif, Trivandrum, accordingly, framed the
following issues which are as follows :
" 1)
Is not the suit maintainable? 2) Whether the plaint schedule description is
correct? 3) Is there any pathway as Plaint B schedule? 4) Is the plaintiff
entitled to easement right over plaint B schedule as pathway to Plaint A
schedule? 5) Is the plaintiff entitled to the declaration as prayed for? 7 6)
Whether the injunction prayed for is allowed? 7) Relief and costs."
8.
After the parties adduced evidence in support of their respective
cases and after hearing the parties, the IInd Additional Munsif, Trivandrum
decreed the suit for declaration of easement right and for injunction filed by
the original plaintiff (since deceased), holding inter alia that :- The court
noted that the plaintiff had claimed easement of necessity as well as easement
of grant. According to the plaintiff, during the lifetime of Yogini Amma
itself, `B' schedule pathway had been given to him as an easement of grant,
which had been in use from those days and even prior to the execution of the
settlement deed. The deed does not refer to the existence of `B' schedule
pathway for the plaintiff to access `A' schedule property. The defendants had
alleged the existence of two alternative pathways leading to the `A' schedule
property. However, the same was denied by the sole witness produced by the
original plaintiff (since deceased). The 8 defendants could not lead any
evidence to substantiate their claim that these pathways provide access to `A'
schedule property. In a case where the original plaintiff was claiming easement
right either as grant or as of necessity the plaintiff has only a primary
burden to prove the absence of any alternate pathway. As the defendants have
not proved the existence of any pathway for access to Plaint `A' schedule
property the version of the plaintiff that there is no alternate pathway shall
be accepted. According to the plaintiff, he had been residing in the building
on `A' schedule property and had been using `B' schedule pathway from the year
1940. A trace of this pathway could be presumed to be in existence from the
time when the Ashramam acquired the properties. As per the deed of settlement,
there is a separation of tenements. At the time of its execution itself, the
plaintiff could have had access to `A' schedule property only through `B'
schedule pathway. As `B' schedule pathway was required for the reasonable and
convenient use of the plaintiff's property and that on severance of the
tenements, plaintiff can be presumed to have got a right over `B' schedule
pathway by an implied grant and 9 also an easement of necessity.
9.
It is not on record that either Yogini Amma, or the defendants
themselves until 1982 had obstructed this use of pathway. There is no reason to
disbelieve the plaintiff's version that Yogini Amma had given `B' schedule
pathway as grant for his use as he was a close relative of the former. There is
an apparent and continuous use which is necessary for the enjoyment of the `A'
schedule property within the meaning of Section 13(b) of the Indian Easements
Act, 1882, and, therefore, the plaintiff is entitled to easement right in
respect of the pathway. The defendants have not entered the witness box to
disprove the evidence led by the plaintiff.
10.
In these circumstances, it was clear that `B' schedule pathway was
given to plaintiff as an easement of grant.
Defendants
argued that no implied grant was pleaded in the plaint. However, it does not
make a difference to the findings arrived at, as the plaintiff had pleaded
easement of grant. The plaintiff's right to `B' schedule pathway does not affect
the interest in the Ashramam property in any manner.
1 Since
this issue was found in favour of the plaintiff, the relief of declaration and
injunction was granted as prayed for.
11.
Feeling aggrieved by the order of the IInd Additional Munsif, the
defendants preferred an appeal before the IIIrd Additional District Judge,
Thiruvananthapuram. The Appellate Court, by an order dated 6th of April, 1999,
allowed the appeal partly. The issues framed by the Appellate Court were as
follows:
12.
Whether the Trial Court was justified in granting a decree for
declaration in favour of the plaintiff? 2) Whether the finding of the Trial
Court that plaintiff is entitled to the decree of permanent injunction is
correct? 12.The Appellate Court found that on evidence, it was proved that
there is an alternate way on the western side of the `A' schedule property. The
plaintiff, however, asserted that there is a difference in level of 14 feet
between the `A' 1 schedule property of the plaint and the property adjacent to
it which is situated on the western side. However, the existence of an
alternate pathway, howsoever inconvenient, will defeat the claim of easement of
necessity. The necessity must be absolute and must be subsisting at the time
when the plaintiff claims right of way by easement. In the light of these
findings, the Appellate Court held that the claim of the plaintiff regarding
the right of easement of necessity over the plaint `B' schedule pathway was not
sustainable.
13.
On the question of easement by grant, the Appellate Court was of
the opinion that the plaintiff's claim in that respect stood proved. The
plaintiff had acquaintance and association with the Ashramam and Yogini Amma
from his childhood days as revealed from the oral and documentary evidence. Considering
the location and nature of `B' schedule pathway, the location of two pillars at
its inception and the gate from which it started, it could be seen that it had
been in use by the plaintiff as a pathway.
The
plaintiff had been residing in the house on `A' schedule property even prior to
the deed of settlement. Therefore, the 1 Appellate Authority arrived at the
conclusion that the plaintiff had obtained right of easement of grant from
Yogini Amma over the `B' schedule pathway. An easement of grant is a matter of
contract between the parties and it may have its own consideration. (B.B.
Katiyar's Commentaries on Easements and Licenses, p. 762). It may be either
express or even by necessary implication. Though easement of necessity will
come to an end with the termination of necessity, easement acquired by grant
cannot be extinguished on that ground as per section 13(b) of the Indian Easements
Act, 1882. Therefore, even assuming that the plaintiff had an alternative
pathway as contended by the defendants, it does not extinguish the right of
easement of grant in favour of the plaintiff.
Therefore,
the Trial Court was justified in granting a relief of declaration of right of
easement of grant over the `B' schedule pathway. However, the declaration
granted on the ground of easement of necessity was not justified.
14.
It was further held that the apprehension of the plaintiff on
attempted obstruction of the `B' schedule pathway was 1 well-founded and,
therefore, the Trial Court was justified in granting the relief of permanent
injunction against the defendants.
15.
Aggrieved by the order of the first Appellate Court, the
defendants took a second appeal before the High Court of Kerala. The High
Court, by its impugned judgment and order dated 9th of May, 2006, dismissed the
appeal and affirmed the orders of the Trial Court and of the Appellate Court.
16.
The issues that were raised for consideration of the High Court
were as follows:
1. While
Yogini Amma owned and held the entire land in both the schedules at that time
of alleged grant, whether the finding of easement of grant is contrary to law
of easement which enjoins the existence of two tenements?
2.
Whether the appellate court was right in granting an easement of grant without
specifying the nature and extent of easementary right and without restricting
it to the right of footway, when the terms of the grant are not known? 1
3.
Whether the appellate court was justified in granting a decree for declaration
in favour of the plaintiff as regards the easementary right by way of grant?
17.The High Court limited itself to the issue whether the decree of the first
appellate court granting the original plaintiff (since deceased) right of
easement over `B' schedule property by way of grant concurring with the
findings of the trial court was sustainable.
18.Before
the High Court, the defendants pleaded that there had been no appeal or cross
objection filed by the original plaintiff (since deceased) against the order of
the Appellate Court which disallowed the claim of easement of necessity and,
therefore, the finding that there existed no easement of necessity in favour of
the original plaintiff (since deceased) over the `B' schedule property stood
confirmed.
Further
they contended that the alternative pathway on the western side of the `A'
schedule property was rendered inconvenient by the very act of the original
plaintiff (since deceased) who sold that portion of the property to a third 1
party who began digging that pathway resulting in the difference in level. The
High Court, on consideration of these contentions, held that though the claim
of right of easement by way of necessity over `B' Schedule property may be
affected by the subsequent sale of the said plot by the plaintiff in 1983, the
claim of right of easement by way of grant over `B' schedule property stood
unaffected by the said conduct.
19. The
very fact that the plaintiff was continuing to use the said pathway for access
to `A' schedule property was an indication that there was implied grant of `B'
schedule pathway of the plaint for access to the `A' schedule property even
while `A' schedule property was separately allotted to him under settlement
deed. Such implied grant is inferable also on account of the acquiescence of
the defendants in the original plaintiff (since deceased) using `B' schedule as
pathway till it was for the first time objected on 21st of July, 1982 as
alleged by the original plaintiff (since deceased).
1 20.The
High Court observed that the Courts below had concurrently found on a proper
appreciation of the evidence adduced in the case that `B' schedule property of
the plaint was being used as a pathway by the plaintiff ever after construction
of the building in 1940 in `A' schedule property. The defendants did not
dispute the case of the plaintiff that the plaintiff was in occupation of the
building ever after its construction in 1940. The defendants were also not able
to establish that the plaintiff was using any other pathway for access to `A'
schedule property and the building therein which was in his occupation. The
mere fact that there is no mention in settlement deed enabling the use of the
`B' schedule pathway for access to `A' Schedule property and the building
therein is no reason to hold that there is no grant as the grant could be by
implication as well. The fact of the use of `B' schedule property as pathway
ever after execution of settlement deed till 1982 by the plaintiff shows that
there was an implied grant in favour of the plaintiff in relation to `B'
schedule property for its use as 1 pathway to `A' schedule property of the
plaint in residential occupation of the plaintiff.
21.The
High Court relied on a number of observations in Katiyars Law of Easement and
Licences (12th Edition) on law with respect to "implication of grant of an
easement." It may arise upon severance of a tenement by its owner into
parts. The acquisition of easement by prescription may be classified under the
head of implied grant for all prescription presupposes a grant. All that is
necessary to create the easement is a manifestation or an unequivocal intention
on the part of the servient owner to that effect.
22.The
High Court quoted with approval Katiyar's note to Section 8 of the Easement
Act, which reads as follows:
"There
are numerous cases in which an agreement to grant easement or some other rights
has been inferred or more correctly has been imputed to the person who is in a
position to make the grant, on account of some action or inaction on his part.
These cases rest on the equitable doctrine of acquiescence, but they may be
referred to, for the purpose of classification, as imputed or constructive
grants. The party acquiescing is subsequently estopped from denying the
existence of easement. It is as if such person had made an actual grant of the
easement...
1 ...It
is the intention of the grantor whether he can be presumed to have been
intended to convey to the grantee a right of easement for the reasonable and
convenient enjoyment of the property which has to be ascertained in all the
circumstances of the case to find out whether a grant can be implied. A
description in a conveyance may connote an intention to create a right of
easement.
An
easement may arise by implication, if the intention to grant can properly be
inferred either from the terms of the grant or the circumstances".
23.Applying
these observations to the facts of the case, the High Court held that though
the original grant was by Yogini Amma that grant could not perfect as an
easement for the reason that Yogini Amma herself was the owner of both `A'
schedule and `B' schedule properties and consequently there was no question of
`B' schedule property becoming the servient tenement and `A' schedule property
becoming the dominant tenement. However, it was the desire of Yogini Amma that
was implemented by her disciples by virtue of the settlement deed. Therefore,
the right of the plaintiff to have `B' schedule property as a pathway could not
have been taken away by the very same deed. In fact, there was implied grant of
`B' schedule 1 property as pathway as can be inferred from the circumstances,
namely, i) no other pathway was provided for access to `A' schedule property in
the settlement deed and ii) there was no objection to the use of `B' schedule
as pathway.
24.Feeling
aggrieved by the concurrent orders of the Courts below, the
defendants/Appellants have filed the present special leave petition, which, on
grant of leave, was heard in the presence of the learned counsel of the
parties.
25.We
have heard Mr. T.L. Viswanatha Iyer, learned senior counsel for the appellants
and Mr. Subramanium Prasad, learned senior counsel for the respondents. We have
carefully examined the impugned judgment of the courts below and also the
pleadings, evidence and the materials already on record. It is not in dispute
that the trial court as well as the First Appellate Court concurrently found on
a proper appreciation of the evidence adduced in the case that the `B' Schedule
Property of the plaint was being used by the original plaintiff (since
deceased) and thereafter, by the respondents even after construction of the
building in 2 1940 in `A' Schedule property of the plaint. The appellants also
did not dispute the case of the original plaintiff (since deceased) that he was
in continuous occupation of the building even after its construction in the
year 1940. It is also not in dispute that the appellants were not able to
establish that the original plaintiff (since deceased) was using any other
pathway for access to `A' Schedule Property of the plaint and the building
therein, which was in the occupation of the original plaintiff (since
deceased). The case of the appellants that since there was no mention in the
deed of settlement enabling the use of `B' schedule pathway for access to `A'
schedule property and the building therein, cannot be the reason to hold that
there was no grant as the grant could be by implication as well.
It is not
in dispute that the fact of the use of the `B' schedule property as pathway
even after execution of Exhibit A1, the settlement deed in the year 1982 by the
original plaintiff (since deceased) would amply show that there was an implied
grant in favour of the original plaintiff (since deceased) relating to `B'
schedule property of the 2 plaint for its use as pathway to `A' schedule
property of the plaint in residential occupation of the original plaintiff
(since deceased). In the absence of any evidence being adduced by the
appellants to substantiate their contention that the original plaintiff (since
deceased) had an alternative pathway for access to the `A' schedule property,
it is difficult to negative the contention of the respondent that since the
original plaintiff (since deceased) has been continuously using the said
pathway at least from the year 1940 the original plaintiff (since deceased) had
acquired an easement right by way of an implied grant in respect of the `B'
Schedule property of the plaint. It is an admitted position that both `A'
schedule and `B' schedule properties of the plaint belonged to Yogini Amma and
her disciples and it was the desire of Yogini Amma that was really implemented
by the disciples under the settlement deed executed in favour of the original
plaintiff (since deceased).
Therefore,
the High Court was perfectly justified in holding that when it was the desire
of Yogini Amma to grant easement right to the original plaintiff (since
deceased) by 2 way of an implied grant, the right of the original plaintiff
(since deceased) to have `B' schedule property of the plaint as a pathway could
not have been taken away. In Annapurna Dutta vs. Santosh Kumar Sett & Ors.
[AIR 1937 Cal.661], B.K.Mukherjee, as His Lordship then was observed :
"There
could be no implied grant where the easements are not continuous and
non-apparent.
Now a
right of way is neither continuous nor always an apparent easement, and hence
would not ordinarily come under the rule. Exception is no doubt made in certain
cases, where there is a `formed road' existing over one part of the tenement
for the apparent use of another portion or there is `some permanence in the
adaptation of the tenement' from which continuity may be inferred, but barring
these exceptions, an ordinary right of way would not pass on severance unless
language is used by the grantor to create a fresh easement."
26.In our
view, therefore, the High Court was also fully justified in holding that there
was implied grant of `B' schedule property as pathway, which can be inferred
from the circumstances for the reason that no other pathway was provided for
access to `A' schedule property of the plaint and there was no objection also
to the use of `B' schedule property of the plaint as pathway by the original 2
plaintiff (since deceased) at least up to 1982, when alone the cause of action
for the suit arose.
27.The
learned counsel for the appellant raised an argument that since no case was
made out by the plaintiffs/respondents in their plaint about the easementary
right over the `B' Schedule Pathway by implied grant, no decree can be passed
by the courts below basing their conclusion on implied grant. We have already
noted the findings arrived at by the Trial Court, on consideration of pleadings
and evidence on record on the right of easement over `B' Schedule pathway by
implied grant. The Trial Court on consideration of the evidence of both the
parties recorded the finding that there was no evidence on record to show that
either Yogini Amma or the defendants themselves until 1982 had objected to the
plaintiff's use of `B' schedule pathway to access `A' schedule property. The
Trial Court on consideration of the plaintiff's evidence and when the defendant
had failed to produce any evidence, had come to the conclusion that the
plaintiff was given right of easement by Yogini Amma as an easement of grant.
2
Considering this aspect of the matter, although there is no specific issue on
the question of implied grant, but as the parties have understood their case
and for the purpose of proving and contesting implied grant had adduced
evidence, the Trial Court and the High Court had come to the conclusion that
the plaintiff had acquired a right of easement in respect of `B' schedule
pathway by way of implied grant. Such being the position, we are not in a
position to upset the findings of fact arrived at by the Courts below, in
exercise of our powers under Article 136 of the Constitution of India. We also
agree with the finding of the Trial Court that from the evidence and pleadings
of the parties `B' schedule pathway was given to the plaintiff/respondent as an
easement of grant. It is true that the defendant/appellant alleged that no
implied grant was pleaded in the plaint. The Trial Court, in our view, was
justified in holding that such pleadings were not necessary when it did not
make a difference to the finding arrived at with respect to the easement by way
of grant. Accordingly, there is no substance in the argument raised by the 2
learned senior counsel for the appellants.
28.Since
we have accepted the findings of the High Court as well as of the trial court
on the question of implied grant, it would not be necessary for us to deal with
the decisions on the easement of necessity which necessarily involves an
absolute necessity. If there exists any other way, there can be no easement of
necessity. Therefore, the decision of this Court in Justiniano Antao & Ors.
vs. Smt. Bernadette B.Pereira [2005 (1) SCC 471] is clearly not applicable in
view of our discussions made herein above. Similarly two other decisions
referred to by the High Court in the impugned judgment need not be discussed
because these decisions were rendered on the question of easement of necessity.
29.Such
being the state of affairs and such being the findings accepted by the High
Court in second appeal, it is not possible for this Court to interfere with
such findings of fact arrived at by the High Court which affirmed the findings
of the Courts below. No other point was raised by the learned senior counsel
for the appellants.
2 30.In
view of our discussions made hereinabove, we do not find any merit in this
appeal. The appeal is thus dismissed. There will be no order as to costs.
............................J. [Tarun Chatterjee]
; .................................J.
New Delhi
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