John and Others vs P. Janaki and Others

Thomas P. Joseph, J.—The Second Appeal arises from the judgment and decree of learned District Judge, Kottayam in A.S.No.186 of 2004 reversing the dismissal of O.S.No.175 of 1999 by the learned Munsiff, Vaikom and granting a decree for prohibitory injunction in favour of the respondents/plaintiffs. Dispute concerns the right and user of plaint schedule item No. 2, described as a way starting from the PWD road on the south and leading to the house compound of the appellants. Item No. 1 is eight cents and the residential building therein. Item No. 1 is situated towards west of item No. 2 (and south of the house compound of the appellants). According to the respondents, they have acquired a right of easement by implied grant and quasi easement to pass through item No. 2 for access to item No. 1. It is the case of the respondents that of the eight cents referred to in the plaint schedule item No. 1, 4 = cents towards its north-western portion was acquired by the late husband of the 1st respondent on lease from Ramakrishnan Nair, the predecessor-in-interest of the appellants as well. The husband of the 1st respondent was given permission to them to use item No. 2 for access to the said 4 = cents since there was no other access to the said 4 = cents. The husband of the 1st respondent and others started residence in the house in the said 4 = cents. Later, the 1st respondent acquired 3.5 cents on the immediate east of the said 4 = cents as per Ext.A1, assignment deed No. 2961 of 1976 dated 07.07.1976 executed by the said Ramakrishnan Nair. Thus the respondents got absolute title and possession of the eight cents referred to in the plaint schedule item No. 1. They claimed that for their access to item No. 1 there is an opening from item No. 2 towards the south-eastern portion of item No. 1. They also claimed that right from the time the husband of the 1st respondent got lease hold right over the 4 = cents situated towards north-western portion of item No. 1, they were using item No. 2. They also claimed that since they have no other access to item No. 1, they have acquired a right over item No. 2 by way of quasi easements.

Appellants contended that the respondents have no right over the plaint schedule item No. 2. They claimed that the plaint schedule item No. 2 belonged to them as per Ext.A2, assignment deed dated 06.07.1976 executed by Ramakrishnan Nair in favour of the 2nd appellant. It is further contended that on 08.02.1990 by Ext.B2, the 2nd appellant obtained permission from the local authority for construction of a compound wall at the southern extremity of plaint schedule item No. 2, abutting the PWD road. Item No. 2 is the private road exclusively belonging to the appellants. Access to the plaint schedule item No. 1 is through the south-western portion of property acquired by the 6th respondent as per Ext.A3.

The trial court was of the view that there was no sufficient evidence to establish right of easement by way of grant. So far as the plea of quasi easement is concerned, the trial court came to the conclusion from Exts.C1 to C3 that property of the respondents abuts the PWD road on the southern side and hence no claim of easement by way of quasi necessity could be sustained. The trial court dismissed the suit.

The respondents challenged that judgment and decree in the District Court. The first appellate court referring to the documentary and oral evidence concluded that the plaint schedule item No. 2 was in use by the respondents even at the time of Ext. A1. The first appellate court held that at the time the husband of the 1st respondent obtained lease hold right over the 4 = cents being the north-western portion of item No. 1, there was no access to the said property except through item No. 2 and hence the case of the respondents that Ramakrishnan Nair had granted permission to the husband of the 1st respondent to use plaint schedule item No. 2 for access to the said 4 = cents is probable. The first appellate court also held that since at the time of Ext.A1 there was a formed way (item No. 2) the claim of respondents for quasi easement would stand. A decree was granted in favour of the respondents. The decree of the first appellate court declares right of the respondents over plaint schedule item No. 2. It directs the appellants by way of mandatory injunction to remove the obstruction caused to item No. 2, pathway and also to open the gate for the convenient use of the pathway by the respondents. That judgment and decree are under challenge.

The following substantial questions of law are framed for a decision:

i. Whether the first appellate court was right in holding that the respondents have a right of easement by way of grant when the alleged grantor had no title over the alleged pathway?

ii. Whether the first appellate court was right in granting a decree of easement by way of quasi easement when there was no pleading in that behalf advanced by the respondents?

The learned counsel for the appellants contends that there is no sufficient plea or evidence regarding the right claimed by the respondents by way of implied grant or quasi easement. It is pointed out by the learned counsel that by Ext.A2, assignment deed dated 06.07.1976, the 2nd appellant acquired right over plaint schedule item No. 2. In Ext.A1, assignment deed dated 07.07.1976 in favour of the 1st respondent, there is no mention of the existence of the plaint schedule item No. 2 or, the right claimed by the respondent over the said way. According to the learned counsel, if Ramakrishnan Nair had permitted the husband of the 1st respondent to make use of item No. 2, that fact would have been mentioned in Ext.A1, particularly as the said assignment deed was executed subsequent to Ext.A2, assignment deed dated 06.07.1976. It is contended that after the assignment in favour of the 2nd appellant as per Ext.A2, dated 06.07.1976, Ramakrishnan Nair could not have granted any right to the respondents as per Ext.A1, dated 07.07.1976. It is also contended by the learned counsel that even in Ext.A1, the southern boundary is described as ''road'' which meant that the property of the respondents abutted the PWD road on the extreme south in which case there was no necessity for them to claim a right of way through item No. 2. The learned counsel contends that the evidence of PW1 would show that respondents could gain access to the PWD road on the southern side through the property of the 6th respondent on the west of item No. 1 abuts the PWD road.

The learned counsel for the respondents contended that the first appellate court on evidence has rightly found in favour of the right claimed by the respondents over the plaint schedule item No. 2. According to the learned counsel, the respondents have an easement by implied grant over item No. 2. The said way was in existence even before Exts.A1 and A2 and was being used by the respondents and their predecessor-in-interest for access to the 4 = cents being the north-western portion of item No. 1. The learned counsel contends that the plea of easement by way of quasi easement also has to be upheld. According to the learned counsel, it was only in the year, 1984 that by Ext.A3, the 6th respondent acquired right over the property on the western side and only that property abuts the PWD road on the south-western side. The learned counsel submits that from 1976 to 1984 when the 6th respondent acquired the property on the south-western side as per Ext.A3, respondents had no other means of access which justified the contention of the respondents. The learned counsel contends that so far as easement by way of grant and quasi necessity are concerned, Sec.41 of the Easements Act has no application and the existence of the alternative way would not defeat those rights.

That, the plaint schedule item No. 2 is in existence as a way is not in dispute and is proved by Exts.C1 to C3. It is also not in dispute that the said way starts from the PWD road on the south and leads to the house compound of the appellants on the north. Item No. 1 is situated on the immediate west of item No. 2 and on the south of the house compound of the appellants. Ext.C2(a) shows that there is an opening on the south-eastern side of item No. 1 into item No. 2. The property of the 6th respondent is situated towards west and south of item No. 1. On the extreme southern side of the said property, there are shop rooms. Towards south-western corner of the said property (of the 6th respondent) there are steps for access to the PWD road on the southern side.

True that in Ext.A1, the southern boundary is mentioned as ''Puthen thodu road''. But, I must notice from Ext.A1 that the boundary given therein is that of the entire property of Ramakrishnan Nair, the predecessor-in- interest of the respondents. Ext.C2(a) shows that towards the southern side of item No. 1 is the property belonging to certain other persons and the shop buildings constructed by them blocked entry from the PWD road on the southern side to item No. 1. Therefore, the contention raised based on the southern boundary description in Ext.A1 cannot stand.

Ext.A1, assignment deed was executed by Ramakrishnan Nair in favour of the respondents on 07.07.1976 concerning 3 = cents towards the east of the 4 = cents acquired by the husband of the 2nd respondent on lease. He executed in Ext.A2 in favour of the 2nd appellant on 06.07.1976. There is no mention in Ext.A1 about the right claimed by the appellants over item No. 2. Nor could Ramakrishnan Nair create any right for the respondents over item No. 2 on 07.07.1976 when Ext.A1 was executed. But the claim of the respondents is not based on any grant as per Ext.A1, dated 07.07.1976. The non mention of the right claimed by the respondents in Ext.A1 would not therefore defeat claim of the respondents since the right of access (allegedly) granted by the Ramakrishnan Nair for access to the 4 = cents forming part of item No. 1 (even prior to Exts.A1 and A2) is a right, which if accepted would run with the land and hence whatever that was assigned by the predecessor-in-interest of the respondents to the 2nd appellant as per Ext.A2 dated 06.07.1976 can only be subject to that right of the respondents.

As regards the user of the disputed way by the respondents and their predecessor-in-interest so far as the 4 = cents (husband of the 1st respondent) is concerned, the first appellate court has referred to the evidence of the respondents and even to that of DW1. The first appellate court observed from the evidence of DW1 that even at the time the husband of the 1st respondent was enjoying the 4 = cents forming the north-western portion of item No. 1, he was gaining access through item No. 2 which was remaining as a cartable road even then. Ext.A1, assignment deed refers to the lease over the 4= cents in favour of the husband of the 1st respondent. He and the respondents were residing in the 4 = cents even before Ext.A1 dated 06.07.1976.

Ext.A3, assignment deed in favour of the 6th respondent is in the year, 1984 and concerns the property on the west and south of item No. 1. In otherwords, it is only in the year, 1984 that the 6th respondent acquired right over the said property. Ext.A1, assignment deed is dated 07.07.1976. The lease of 4 = cents in favour of the husband of the 1st respondent was much prior to 1976. Therefore, on the strength of Ext.A3 of the year, 1984, the appellants cannot successfully contend that right of access the respondents and the husband of the 1st respondent had to the 4 = cents was through the south-western side.

It is pointed out by the learned counsel from the evidence of PW1 that the latrine of the house situated in item No. 1 is on the eastern side of the said house. The attempt of the learned counsel is to show that this would indicate that the respondents were not gaining access from item No. 2 situated on the further east. In the light of the circumstances I have above stated, from the present location of the latrine alone, claim of the respondents cannot be negatived.

Yet another argument the learned counsel has advanced is that based on Ext.B2, permission was granted by the Local Authority on 08.02.1990 for the 2nd appellant for construction of the compound wall. That would not show that the appellants have exclusive right over the plaint schedule item No. 2.

The first appellate court having regard to the above circumstances has found in favour of the right of the respondents to use the plaint schedule item No. 2 for access to item No. 1.

Then the next question is what exactly is that right? According to the respondents, the husband of the 1st respondent at the time of taking lease of 4 = cents from Ramakrishnan Nair had obtained a right to use item No. 2. I referred to the circumstances to say that the said contention of the respondent has to prevail. In the light of that evidence and since I have concluded that atleast until 1984 (the acquisition as per Ext.A3 in the year, 1984 is only by the 6th respondent. Other respondents have no right in that property) respondents or the husband of 1st respondent had no other means of access to plaint schedule item No. 1 and in particular the 4 = cents forming the north-western portion of it, the claim of easement by implied grant pleaded by the respondent has to prevail.

The first appellate court has also found in favour of quasi easement pleaded by the respondents. The first appellate court has referred to the relevant decisions to say under what circumstances a plea of quasi easement could be raised and sustained. There could be no quarrel about the proposition stated. But, when a right of easement by way of grant (implied or express) is raised and accepted the question of respondents claiming a quasi easement does not arise. No doubt, even in the matter of easement by way of necessity or quasi easement, it starts with a permission, both may have some common features also but both are distinguishable and cannot go together. A grant is controlled by terms and conditions of the grant itself and is not defeated by the existence of the alternative way. The existence of an alternative way could defeat a claim of easement by necessity or even a quasi easement. Since the respondents claimed and the first appellate court found in favour of easement by implied grant, the question of quasi easement does not arise.

True that the respondent have pleaded easement by implied grant and quasi easement and though it was permissible for them to raise inconsistent pleas, it was necessary for them to confine their claim to either of the two at the time of giving evidence. In this case, based on the evidence the first appellate court has concluded that the respondents have right of easement by way of implied grant. In that view of the matter also the first appellate court was not right in holding that the respondents have a quasi easement also to use the plaint schedule item No. 2. That finding of the first appellate court has to go.

It is seen from the decree of the first appellate court that it has directed removal of obstruction to the user of item No. 2 by a mandatory injunction. The first appellate court has not stated what all obstructions are to be removed. Appellants have constructed a gate at the entrance of the plaint schedule item No. 2. So far as there is no obstruction to the use of the plaint schedule item No. 2 as a cartable road, there is no need to remove the gate and pillars. There is also no reason why at present the appellants should be prohibited from locking the gate. What is required is only that a duplicate key of the lock shall be with the respondents so that they can open the lock and make use of item No. 2 as a cartable road. The substantial questions of law framed are answered as above. Resultantly, Second Appeal is allowed in part to the following extent:

i. While confirming the finding of the first appellate court that the respondents have a right of easement by implied grant over the plaint schedule item No. 2, the finding that they have right of quasi easement on the said way is set aside.

ii. The declaration granted by the first appellate court in favour of the respondents to the above extend is confirmed.

iii. It is directed that the appellants shall remove all obstructions caused to the use of item No. 2 as a cartable road within two months from this day failing which it will be open to the respondents to get it removed through court.

iv. It is made clear that the above direction would not include removal of the pillars and gate on the southern side of item No. 2 unless it causes obstruction to the user of item No. 2 as a cartable road and as that road permits.

v. It is open to the appellants to lock the gate provided that the duplicate key of the lock is given to the respondents so that they could open the lock and get and make use of item No. 2 as a cartable road.

vi. In case any dispute regarding the lock and key of the gate arises, the executing court shall issue necessary directions even including the removal of the lock.

vii. Parties shall suffer their cost in this appeal.

All pending interlocutory applications will stand dismissed.