Palaniswami Naicker vs Chinnaswami Naicker

T. Ramaprasada Rao, J.—The defendant is the appellant in this second appeal. Both the Courts below described the suit as a suit for

declaration and mandatory injunction. But, on a fair reading of the plaint, it is clear that the plaintiff asked for a declaration that he is entitled to use

the pathway in question for taking his cart, cattle etc., and consequentially asked for a permanent injunction restraining the defendant or his men

from obstructing such user by the plaintiff of the suit pathway. In effect, therefore, the suit is for a declaration of right to use the suit pathway.

Learned Counsel for the appellant took me through paras, 5, 6, 7 and 8 of the plaint to show that the relief asked for by the plaintiff is one for a

declaration that he is entitled to an easement or right of way within the meaning of Section 15 of the Easements Act and that in substance and in the

appellant.

The plaintiff purchased the property marked ABCDE in the sketch annexed to the plaint under Exhibit A-4 dated 23rd June, 1932. In this

document an express mention is made that the plaintiff and his successors in interest are entitled to a right of ingress and egress over the suit

property DCKMLGH in the sketch. The plaintiff''s predecessor-in-interest, however, purchased this very property ABCDE under the sale deed

Exhibit B-2, dated 24th March, 1994, wherein no mention is made about the suit pathway DCKMLGH. It is however alleged in the plaint that the

plaintiff''s predecessor-in-interest as well as the plaintiff were using the pathway DCKMLGH, which will he hereinafter referred to as the suit

pathway, for taking out their cattle from the property ABCDE. In fact, the plaintiff, in his plaint as well as by oral evidence, sought to establish that

his claim to use and to have a right of way over the suit pathway was well over 22 years, and such user was uninterrupted and that therefore he

had secured an easementary right within the meaning of Section 15 of the Easements Act. The defendant however contended that the suit pathway

was not in existence and the plaintiff did never secure any right known to law to use the same and claim a right over it. On a dismissal of the suit by

the District Munsif the plaintiff appealed and the first appellate Court reversed the decision of the learned District Munsif and found that the suit

pathway was absolutely necessary for the enjoyment of the property ABCDE and that such a right ran with the land. He also found, as a matter of

fact, that the suit pathway always existed and believed the oral evidence let in on the side of the plaintiff that the disputed pathway was in the

enjoyment of the plaintiff and his predecessors for well over 20 years. He did not agree with the contentions raised before him that the suit as

framed was not for the declaration of an easement right, but appears to be for a declaration of ownership in the suit pathway, and came to the

conclusion that a legal inference as to the existence of the right in favour of the plaintiff could be drown from the evidence, oral and documentary,

adduced in the case. The learned Subordinate Judge ultimately found that there was a pathway as alleged by the plaintiff over which he had a right

of casement which he characterized as easement of necessity within the meaning of Section 13(e) of the Easements Act. He therefore upheld the

claim of the plaintiff and decreed the

The defendant has come up in appeal to this Court on the judgment of the learned Subordinate Judge. Mr. T.P. Gopalakrishnan, learned-

Counsel for the appellant, pressed before me the following points. (1) The claim of the plaintiff as initiated by him in the pleadings is one for

ownership, of the suit pathway and therefore he is not entitled to a declaration that he has secured an easement right under the provisions of the

Easements Act, and such a legal inference drawn by the lower appellate Court consequentially securing a legal right which was not asked for in the

plaint cannot be envisaged and granted, and that therefore the suit as framed is not maintainable. In support Of his contention, the learned Counsel

referred to the decision reported in Imamdin V. Nizam Dian AIR 1933 Lah. 267. The observation of the lower appellate Court that the easement

in question is an easement of necessity is unsustainable in view of the decisions reported in Krishnamaraju V. Marraju L.R.(1905) Mad. 495 and

Subba Rao v. Lakshmana Rao I.L.R.(1926) Mad. 820.

Learned Counsel for the respondent would state that the property ABCDE was parcelled out of a composite property which was originally in

the family of one Kothu Suoba Naicker and the composite property was divided into two, the northern and the southern portions, and one branch

of the family retained the northern portion and the other"" branch the southern portion. By subsequent alienation by the members of the erstwhile

family Which originally owned the composite property the plaintiff became the owner of the property ABCDE (the northern portion) under Exhibit

A-4, dated 23rd June, 1932, hereinafter referred to as dominant tenement, and the defendant''s father and his brothers secured the southern

portion of the composite property under the document Exhibit A-3, dated 27th May, 1890, hereinafter called the servant tenement. In fact, the

defendant''s father purchased the portion that fell to the share of his brothers and thus became the sole owner of the southern portion. In Exhibit A-

3, specific mention is made about the suit property. The recital in this document in so far as it concerns the suit path, is as follows.

It was sought to be contended that the scope of the recital is that when the members of the ancient family divided and partitioned their

composite holdings a personal privilege only was granted to Chinna Venkatasami Naicker. The learned Subordinate Judge rightly observed that

this right given to Chinna Venkatasami Naicker under Exhibit A-3 cannot be deemed to be a personal privilege granted to him, but a legal

inference should be drawn that a right of way in the nature of a burden over the suit pathway in question was for ever created under that document

at the time of partition. I do not agree with the observation of the learned District Munsif that it was a right or privilege conferred on Chinna

Venkataswami Naicker. The learned Subordinate Judge rightly observed that this right given to Chinna Venkatasami Naicker under Exhibit A-3

cannot be deemed to be a personal privilege granted to him, but a legal inference should be drawn that a right of way in the nature of a burden over

the suit pathway in question was for ever created under that document at the time of partition. I do not agree with the observations of the learned

District Munsif, that it was a right or privilege conferred on Chinna Venkatasami Naicker, because he happened to be the co-owner of the

property. If really, as is sought to be made out before me, there are other openings available to the land ABODE, particularly in the north and its

West, it is unnecessary to provide expressly a pathway in the southern portion of the composite property so as to create a right of way therein for

the owners of the northern portion of the property. In this view, it cannot be said that the right given to Chinna Venkatsami Naicker under the deed

of partition Exhibit A-3, elated 27th May, 1890 is a right which is extinguished on the death of Chinna Venkatasami Naicker and that it does not

pass along with the land or from generation to generation to the owners of the northern portion of the land. I am not satisfied that the learned

District Munsif, in brushing aside the evidence of disinterested witnesses like P.Ws. 1 and 3, has given any acceptable reason for the same.

""Easements"" is defined in Section 4 of the Indian Easements Act, 1882, as follows:

An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land to do and continue

to do something are to prevent and continue to prevent something being done, in or upon or in respect of certain other land not his owner.

The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof, the dominant

owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof, the servient owner.

Section 13(e) and (f) provide as follows:

Where a partition is made of the joint property of several persons (e) 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; or (f) if such an easement is apparent and continuous and necessary for

enjoying the share of latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied,

be entitled to such easement.

Section 15 of the Act inter alia provides:

...where a right of way or any other easement has been peaceably and openly enjoyed by any persons claiming title thereto, as an easement, and as

of right, without interruption and for twenty years.... Explanation II. Nothing is an interruption within the meaning of this section unless there is an

actual cessation of the enjoyment by reason of an obstruction, by the act of some person other than the claimant, and unless such obstruction is

submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made.

In fact the Attorney-General for Southern Nigeria v. John Holt L.R. (1915) A.C. 599, their Lordships of the Privy Council explained the term

''easement'' as meaning:

Those occasional rights which an owner or occupier of a land may possess in addition to his ordinary rights of property which are legally

exercisable by him within the boundaries of his own land.

We are concerned in this case with an easement of way.

An easement of way being an affirmative easement enabling the dominant owner to use the servient tenement, ought to be continuous and

apparent. It should be peaceably and openly enjoyed as of right and as an easement. It may have its origin in a statute or in an express or implied

grant or acquired by prescription. Such a prescriptive right of way can be destroyed only by a totality of cessation of the exercise of such a right.

As the definition itself postulates, the interruption of the course of way should be significant. In the instant case, there is no acceptable evidence to

show that there has been a telling interruption leading to a normal presumption as to extinguishment of the right of way originally created by the

instrument of 1890. Can it be said that there has been a snap in the chain of continuity of the assessment by the non-mention of the same in Exhibit

B-2 which is the sale deed in favour of the predecessor in title of plaintiff. A right of way enjoyed as an easement of another''s land passes with the

transfer of the dominant tenement, whether it be by alienation or succession. In my opinion, the omission to mention the obvious in a conveyance

deed is immaterial. Of course, when such a recital is there, it may be considered as supporting evidence. An easement being an appurtenance to

the dominant tenement, passes with the property and it cannot be destroyed or extinguished by a casual omission of a draftsman while drawing up

a conveyance deed. Thus the omission of the suit pathway in Exhibit B-2 and of the existence of the accredited easement of way in question over

the southern portion is not a material circumstance so as to delimit in any way the vested right in the plaintiff. It should not however be forgotten

that Exhibit A-4 dated 23rd June, 1932, this right is expressly mentioned. As already stated, disinterested witnesses examined on the side of the

plaintiff have spoken to the user of the suit pathway by the dominant owner. It is however contended that the right of way granted under Exhibit A-

3 is a personal right to Chinna Venkataswami Naicker. In my opinion it is not so. We have seen the express provision in Section 13(e) and (f) of

the Easements Act. It is indisputable in this case that there exists the dominant and the servient tenements. Therefore, the easement of way

provided in Exhibit A-3 got itself attached to the northern portion of the originally composite land. It is therefore not a right in personam but a right

in rem. As observed in Krishna Iyer v. Venkatachala Mudali (1871) 7 M.H.C.R. 60.

An easement is an incorporated right exercised in, or over, corporeal property for the beneficial enjoyment of other corporeal property.

This leads on to the question as to what is the nature of the easement secured by the dominant owner in the instant case. Reliance is placed by

learned Counsel for the appellant on the decision Krishnamaraju v. Marraju ILR (1905) Mad. 495 : 15 M.L.J. 255. That was a case wherein the

partition deed, whilst it makes special provision for giving means of access to the various portions of the partitioned property is silent as to the

means of access over the appellant''s share therein, which was claimed by the respondent in that case. In fact, their Lordships say that the

respondent therein failed to establish any right by agreement. In those circumstances, their Lordships were of the view that if ''A'' has a means of

access to his property without going over B''s land, 4 cannot claim a right of way over ''B''s land on the ground that it is the most convenient means

of access. The Word ""necessary'', their Lordships observed, must be construed in its ordinary sense. This decision, however, is not strictly

applicable to the facts of this case. In Exhibit A-3, there is an express recital that a right of way is given to the dominant owner over the suit

pathway in the southern portion. There is also oral evidence by neighbours who are not interested in the litigation, to show that the suit pathway

was enjoyed as of right and as of easement by the dominant owner for nearly twenty years. The question however, remains whether in the instant

case the easement can strictly be said to be an easement of necessity. Learned Counsel for the respondent does not put his case in this extreme

fashion, but submits that the easement in question is one acquired by prescription. In Subba Rao v. Lakshman Rao ILR (1926) Mad. 820, the

following passage which found favour with their Lordships constituting the Full Bench is very apposite in this case-

An easement by prescription is capable of being acquired only if the user during the statutory period has been with the animus of enjoying the

easement as such in the land of another and not if the user had been in the consciousness of one''s own ownership over the same.

The question of animus, no doubt, is always one of fact. Even from the sketches filed along with the plaint and shown to me at the hearing, it is

clear that the suit pathway is not only apparent, but continuous. If, thus the suit pathway is apparent and continuous, there is little difficulty in

holding that the easement in this case is one which has undoubtedly been secured by prescription and enjoyed as such, if not as an easement of

necessity. See Morgan v. Kirey ILR (1878) Mad. 46. Apart from this, easement should be deemed to have been secured within the meaning of

Section 15, of Indian Easements Act already cited.

Though I am prima facie inclined to agree with the first appellate Court that the easement in question is an easement of necessity, I would like

to add that I am persuaded to accept the argument of the learned Counsel for the respondent that it is an easement right secured by prescription as

Well. As the suit pathway is apparent, clear cut and contiguous, the easement right can safely be presumed to be in existence for well over the

statutory period, as such a pathway was demarcated in the document dated 27th May, 1890 and reiterated in Exhibit A-4 dated 23rd June, 1932.

I also accept the contention of the respondent that such an easement acquired by the plaintiff has not been factually or in a mariner known to law

been extinguished.

One other argument put forward by the learned Counsel for the appellant is that the plaintiff should be deemed to have based his claim as if he

is the owner of the suit pathway and inconsistently pleaded that he has no easement any right over the same. There being such inconsistency in

pleadings, the plaintiff has to be non suited. I have already referred to the material paragraphs in the plaint. To support his contention, learned

Counsel relied on Imam Din v. Nizam Didn AIR 1933 Lah. 267. A single learned Judge of the Lahore High Court held as follows:

The power of Court to grant general or other relief not specifically claimed while undoubted is always subject to the condition that the relief so

granted is not inconsistent with that specifically claimed and with the case raised by the pleadings. A right of ownership and a right of easement are

two totally distinct things. One is the right to hold, use and enjoy land or things to the exclusion of every one else, while a right of easement is a fight

in, to or over the property of another. One is a personal fight while the other is annexed to the adjoining land or property (the dominant tenement)

and runs with it. A relief arising out of a claim founded on the one is utterly inconsistent with relief on a claim based on the other.

A Full Bench of the Calcutta High Court, however, in Narendranath Barari v. Aboy Charan Chatopadhyaya ILR (1907) Cal. 51, took a

contrary view. Their Lordships are specifically of the view that a suit for declaration that a ditch belonged to the plaintiff or in the alternative they

have acquired a right of easement therein for the passage of their boats is not liable to be dismissed because the plaintiffs claimed in the alternative

over the same plot of ground fights (1) of ownership, (2) of easement. Respectfully accepting the ratio of the Full Bench of the Calcutta High

Court, I hold that such an alternative plea as above, even if it could be presumed to have been pleaded in the instant case by the plaintiff, is

permissible provided the plaintiff presses only one of them at the appropriate time. The plaintiff relied on the fight of easement of way at all material

times. In the view, therefore, already expressed by me that the plaintiff has secured the right of easement by prescription, though not as an

easement of necessity the plaintiff is entitled to succeed in this case. The second appeal is therefore dismissed, but in the circumstances of the case

there will be no order as to costs. No leave.