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SREE SWYAM PRAKASH ASHRAMAM v. N. GOPALA PILLAI - SA No. 198 of 2000(F)  RD-KL 29 (9 May 2006)
IN THE HIGH COURT OF KERALA AT ERNAKULAMSA No. 198 of 2000(F)
1. SREE SWYAM PRAKASH ASHRAMAM
1. N.GOPALA PILLAI
For Petitioner :SRI.C.KOCHUNNY NAIR
For Respondent :SRI.M.R.ANANDAKUTTAN
The Hon'ble MR. Justice K.P.BALACHANDRAN
O R D E R
K. P. BALACHANDRAN, J.S.A. No.198 of 2000
Dated this the 9th day of May, 2006
Defendants 1 to 4 in O.S.887/1982 on the file of the Munsiff's Court, Thiruva nanthapuram who lost their case concurrently in both the courts below are the appellants. The plaintiff in the suit was the sole respondent. He passed away pending this second appeal and his LRs are additional respondents 2 to 7.
2. Late first respondent instituted O.S.887/1982 for a decree declaring his right of easement over 'B' schedule pathway and for an injunction. He alleged inter alia that the first defendant is an unregistered association of numerous persons and the first defendant is sued in a representative S.A. No.198 of 2000 -2- capacity. Plaint A and B schedule properties originally formed part of a vast extent of properties which belonged to one Yogini Amma by name Sarwa Sakshi Amma Swayam Prakash Yogini Amma Thiruvadikal. She had only one brother by name Krishna Pillai who was the sole legal heir of the whole estate of deceased Yogini Amma. During the life time of Yogini Amma, the entire property was enjoyed by her for the management of the first defendant Ashramam. On her death, her legal heir Krishna Pillai and other disciples executed Ext.A1 settlement deed as per the directions of the deceased Yogini Amma. As per the said settlement, plaint A schedule property along with other properties were given to the plaintiff S.A. No.198 of 2000 -3- included under 'C' schedule of Ext.A1. Ever thereafter the plaintiff has been in absolute possession and enjoyment of the said properties effecting mutation and paying tax. Plaint A schedule property lies on the North Eastern portion of Sy.No.1702 and 1817 which belonged to the first defendant. Even before the settlement deed and even during the life time of the said Yogini Amma, there was a building in plaint A schedule property that was in occupation of the plaintiff. The property in Sy.1702 lies on the Northern side of a public road leading from Chavadi junction to Kulathur. On the South Western corner of the property in Sy. No.1702 begins a road towards North through the Western side of the property in S.A. No.198 of 2000 -4- Sy. No.1817. It branches into three one extending towards West; another towards North and; the other branch terminating on the Southern meeting point of properties in Sy.Nos.1702 and 1817. There is a gate provided on the South Western portion of the A schedule for ingress and egress to plaint 'A' schedule property and Plaint 'B' schedule pathway extends up to the road on the West from the said gate through property in Sy. No.1702. The said gate and 'B' schedule pathway are having the age of the building in plaint 'A' schedule property. Other than 'B' schedule pathway, there is no other means of direct or indirect access to Plaint 'A' schedule property from any road or pathway. The plaintiff was using the same S.A. No.198 of 2000 -5- from its very formation as means of traffic and passage to Plaint 'A' schedule property and the building therein. The said pathway has been granted to the plaintiff as an easement by the said Yogini Amma and the plaintiff is using it as such from time immemorial. The said 'B' schedule pathway is situated within the property of the said Yogini Amma which is now under the control and use of the defendants. However, after the construction of the B schedule pathway several buildings were constructed in properties comprised in Sy.Nos.1702 and 1817 which are occupied by the defendants. The defendants are aware that the Plaint 'B' schedule pathway is an easement of necessity. Defendants 2 to 4 started selling S.A. No.198 of 2000 -6- portions of properties of the first defendant. Plaintiff who is a devotee and is highly interested in the first defendant resisted the illegal acts. Infuriated by this, defendants 2 to 4 are attempting to close down the gate on the South Western extremity of the 'B' schedule pathway and are also attempting to change the lie nature and existence of the 'B' schedule to wreak vengeance against the plaintiff. An attempt in that direction was made on 21.7.1982. Defendants are highly influential. Plaintiff apprehends that defendants 2 to 4 will forcibly close down the pathway. The acts of the defendants have caused a cloud on the easement right of the plaintiff over the 'B' schedule property and hence, the suit for S.A. No.198 of 2000 -7- declaration of plaintiffs easement right and for a prohibitory injunction restraining defendants from causing any obstruction to use of B schedule property as a pathway.
3. Defendants 1 to 4 filed a joint written statement raising inter alia the following contentions:
4. The suit is not maintainable. The description of the property is incorrect. There is no 'B' schedule pathway as alleged. The description of the 'A' schedule property is also wrong. First defendant is the Matathipadhi of the Ashramam; defendants 2 and 3 are office bearers of the Ashramam and the 4th defendant is only an inmate of the Ashramam. The Ashramam is working for the moral religious and temporal upliftment of S.A. No.198 of 2000 -8- the society and in particular, of women. Plaintiff was attached to the institution from his childhood. In consideration of the love and affection Her Holiness Swayam Prakash Yogini Amma had towards the plaintiff, she wanted to make a gift of some portion of the property to him. On 25.10.1125 ME, the Ashramam represented by the then office bearers executed a settlement deed in respect of the properties. Plaintiff is the 13th signatory in the said settlement deed. Plaint 'A' schedule property is a portion of the property thus obtained by the plaintiff under the settlement deed. After lapse of some time, the plaintiff acted against the interest of the Ashramam. However, the S.A. No.198 of 2000 -9- Ashramam and its office bearers and the inmates do not have any grudge or enmity towards him. In the settlement deed of 1125 ME, pathway of 6 links width from the Eastern corner of the Ashramam property beginning from the paddy field is provided as a pathway. The property of the plaintiff adjoins this pathway. Plaintiff has made some encroachment in this pathway without the consent of the Ashramam. The Ashramam is run mainly by ladies. Hence, it may not be possible for the Ashramam and its inmates to resist the evil and illegal actions of the plaintiff. There is no 'B' schedule property lying as a separate block. Plaintiff is bound by all the covenants in the settlement deed of 1125 ME. As per the covenant in the S.A. No.198 of 2000 -10- settlement deed, the plaintiff is bound to sell 'A' schedule property to the Ashramam, in case he choses to sell the property. The gate mentioned in the plaint is meant only for the use of the Ashramam and not for the use of the plaintiff. The pathway does not branch into three as alleged. The pathway provided in the settlement deed is on the Eastern extremity of the Ashramam properties and it runs along the Western boundary of the Thiruvananthapuram Radio Station. There is also yet another lane known as the "Mandiram Lane" which comes along the Western side of the Ashramam property through which also the plaintiff has access to his property. The said Mandiram Lane is a Panchayat Lane. Plaintiff has got property S.A. No.198 of 2000 -11- touching the paddy field on the North. 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 Plaint 'A' schedule property. The further allegation that the pathway has been granted by the said Yogini Amma to the plaintiff and that the plaintiff is using it from time immemorial is also false. Originally, there was only a gate to go to the buildings put up by the Ashramam. Later the narrow pathway was widened for taking vehicles to the Ashramam. The present pathway came into existence only within the last 10 years. It can never be considered as an easement of S.A. No.198 of 2000 -12- necessity. The Ashramam and its office bearers are entitled to deal with the properties in any manner they like. Plaintiff is a stranger and he has no right to question the powers of the Matadhipathi. Plaintiff has demolished a portion of the Northern boundary wall of the Ashramam property unauthorisedly and has tried to take lorries which was resented by the Ashramam and complained to the Police. No injury will be caused to the plaintiff if the Ashramam closes the gate. Plaintiff has no easement right to use the gate and the pathway and he is not entitled to the declaration or injunction prayed for. On measurement of 'A' schedule property it was found that an extent of 6.914 cents S.A. No.198 of 2000 -13- allegedly belonging to the plaintiff is in the possession of the Ashramam. Plaintiff wanted the Ashramam to give up possession of the property to him and he promised to give the Ashramam compensation for value of improvements. He also wanted the pathway mentioned in the settlement deed which will come to an extent of 2.40 cents to be given to him. The Ashramam also agreed to give a pathway of 5 links width outside its compound wall. The agreement was also prepared. But he backed out stating that the width of the pathway should be enhanced to 15 links and thereafter he filed the present suit. In the event of declaration of right of easement over 'B' schedule pathway being granted to the plaintiff as prayed for the S.A. No.198 of 2000 -14- properties of the Ashramam will be fragmented and great inconvenience would be caused to the inmates of the Ashramam and the nursery school students. The suit in the circumstances has to be dismissed with costs to the defendants.
5. On the above pleadings, the trial court raised necessary issues for trial and considering the evidence adduced at trial which consisted of oral evidence of the plaintiff as PW1 and documentary evidence Exts.A1, B1, C1, C2 and C2a, the trial court decreed the suit declaring plaitiff's easement right over 'B' schedule pathway for access to Plaint 'A' schedule property and restraining the defendants from changing its present lie or doing anything on the said S.A. No.198 of 2000 -15- pathway which will affect the use of the pathway as at present by the plaintiff.
6. The defendants challenged the said decree and judgment before the District Court, Thiruvananthapuram and by judgment of the Additional District Judge dt.6.4.1999 in AS 58/1990, the decree and judgment of the trial court was confirmed subject to the modification that the plaintiff was found entitled to decree for declaration regarding the right of easement over 'B' schedule property only by way of grant and not by way of necessity and dismissed the appeal. Hence, this second appeal by the aggrieved defendants.
7. The second appeal was admitted on the following questions of law formulated in the S.A. No.198 of 2000 -16- memorandum of second appeal:
1. When the plaintiff was only in permissive occupation of a house in A Schedule property of which he was not the then owner, whether the finding that the plaintiff acquired by express grant an easementary right of way over B Schedule from Yogini Amma who owned and held at that time the entire land which took in both the schedules is contrary to law of easement which enjoins the existence of two tenements dominant and servient which in this case is absent because of unity of title at that time over A and B schedule property.
2.In a case where the terms of the grant S.A. No.198 of 2000 -17- are not known, whether the court is right in declaring an easement right of way in favour of plaintiff without specifying the nature and extent of the easement right as to whether it is only a foot way or cart way available also for vehicular traffic.
3.When the plaintiff pleads that there was a gate at the point of entry from or exit to the public road at the time of grant, which can be kept open or closed at the desire of the institution, was the court right in law in construing freedom or permission alleged to have been given to plaintiff, a dependant of the land owner and who was in permissive S.A. No.198 of 2000 -18- occupation to use the B schedule for entry and as a grant of easement right of way and not as a licence.
4.Whether the Court because of the position of the gate and want of the terms of the grant went wrong in not restricting the easement to footway.
5.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.
8. It is vehemently contended before me by the learned Counsel for the appellant that the building in Plaint 'A' schedule property was constructed and the plaintiff was allowed to occupy the said building at a S.A. No.198 of 2000 -19- time when Yogini Amma was alive; that the said Yogini Amma being the owner of the entire properties of the Ashramam namely 'A' schedule property and the entire balance extent which takes in the alleged 'B' schedule pathway, there was no dominant and servient tenement so as to have a grant of pathway; that by Ext.A1 of 1125 ME only the absolute right and title over 'A' Schedule property was conferred on the plaintiff and under the said deed, Plaint 'B' schedule property was not granted as a pathway and that therefore, the courts below was not justified in granting a decree declaring the right of easement for the plaintiff over 'B' schedule property.
9. It is further contented that inasmuch S.A. No.198 of 2000 -20- as there is no appeal or cross objection preferred by the respondents; the respondents cannot urge any right over 'B' schedule pathway by way of easement of necessity and therefore, when the plaintiff is not able to establish right of easement by grant over 'B' schedule pathway, the suit has necessarily to be dismissed.
10. The further contention that is advanced by the Counsel for the appellants is that the respondent can only support the express grant decreed by the court below and attacked in this appeal and that he cannot establish a new claim under Section 13(1)(b) to have his right of easement established for the reason that Section 13(1) (b) of the Easement Act has no application as easement S.A. No.198 of 2000 -21- over a pathway is not a continuous easement but is a discontinuous one as per Section 5 of the Easement Act.
11. Counsel for the respondent submitted
that he is not canvassing any claim to 'B'
by way of necessity though
the appellate court is empowered to modify
the decree so as to give appropriate relief
by reason of Order XXXXI Rule 33 of the
Code of Civil Procedure as has been held by
the Apex Court
in various decisions inter
alia the decisions in
a) Giani Ram v. Ramji Lal (Shah J) (AIR 1969 SC 1144)
b) Koksingh v. Deokabai (AIR 1976 SC 634)
c) K.Mutuswami Gounder v. N. Palaniappa Gounder (AIR 1998 SC 3118) and S.A. No.198 of 2000 -22-
d) Shankar Popat Gaidhani v. Hiraman Umaji More (AIR 2003 SC 1682)
12. The point arising for decision in the Second Appeal in the circumstances is as to whether the decree of the first appellate court granting the first respondent right of easement over 'B' schedule property by way of grant concurring with the findings of the trial court is sustainable.
13. Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user. In the case of an express grant of easement the limit thereof depends on the S.A. No.198 of 2000 -23- words used. In the instant case, it is not in dispute that 'A' schedule property was allotted to the plaintiff under Ext.A1 settlement deed of 1125 ME in compliance with the dictates of late Yogini Amma who owned the entire property belonging to the Ashramam. In fact, the said Yogini Amma was the founder of the Ashramam. These are aspects borne out by Ext.A1 settlement deed itself. It is also not in dispute that plaintiff was in occupation of the buildng in 'A' schedule property ever after its construction in the year 1940 by Yogini Amma. Yogini Amma passed away on the 20th day of Dhanu 1925 ME and it is so recited also in Ext.A1. According to the plaintiff, it was Yogini Amma who gave permission to him S.A. No.198 of 2000 -24- to use the 'B' schedule property as a pathway and that was as early as in 1940 and accordingly he was using the 'B' schedule property as a pathway ever after 1940 continuously without any obstruction from anyone. Inasmuch as Plaint 'A' schedule property was assigned in absolute right along with other properties included under 'C' schedule in Ext.A1 settlement deed in favour of the plaintiff as per the dictates of deceased Yogini Amma and by Ext.A1, what was being implemented was the desire of Yogini Amma and in the absence of any mention restraining the use of 'B' schedule pathway by the plaintiff it cannot be heard from the defendants that there being no specific grant of 'B' schedule property as a S.A. No.198 of 2000 -25- pathway, the plaintiff cannot claim the said 'B' schedule property as a pathway by way of grant. This is especially so when there is no specific pathway granted for the plaintiff for ingress and egress to plaint 'A' schedule property. In the description of Plaint 'A' schedule property including it under 'C' schedule to Ext.A1 the recital is to the effect that what is granted is 1 acre and 69 cents of garden land with the building excluding a pathway having 380 links length and 6 links width from the North Eastern corner towards South along the boundary and having an extent of 3 cents. The pathway so referred to is certainly not the 'B' Schedule pathway nor is the pathway so mentioned granted to the plaintiff as a S.A. No.198 of 2000 -26- pathway. The pathway was being so mentioned under 'C' schedule only for the purpose of excluding it from the total extent falling withing the links measurements mentioned therein so as to limit the extent within the said measurements to 1 acre and 69 cents inclusive of the building wherein the plaintiff is residing. The plaintiff as PW1 has deposed that the said pathway will terminate on the Southern side within the property of the Ashramam itself; that its Northern end will terminate in property of strangers and that on the Eastern side of the said pathway is the Radio Station compound and that entering into the said pathway portion, one cannot have access to any road and that to his knowledge no one is S.A. No.198 of 2000 -27- using it as a pathway. He has also asserted that other than 'B' schedule pathway he is not having any other pathway for access to 'A' schedule property and that the said 'A' schedule pathway is a cartable road. It has been brought out in cross examination of PW1 the plaintiff that 'B' schedule pathway is in existence from time immemorial; that the said pathway is having a width of 8 feet then though it is having width of 10 feet at present; that the said path way is having a length of 458 links; that there was no gate in existence when he began to use 'B' schedule as a pathway and; that the gate was installed only in 1951 when the Welfare Centre was established. According to him, gates were installed both at the Northern S.A. No.198 of 2000 -28- and Southern ends of the 'B' schedule property. The Southern gate by the side of the Panchayat road and the Northern gate for access to his house. According to him, the Northern gate could not be closed as there was no gate as such but only two pillars for installation of gate. The suggestion made in cross examination that there was no gate and pathway prior to 1951 is vehemently denied by PW1. This denial no doubt is with reference to the pathway only, as even according to him, it is only in 1951 that the gate was installed. The further suggestive question in cross examination as to whether he was not entering into 'B' schedule pathway through properties belonging to others has been denied by the S.A. No.198 of 2000 -29- plaintiff and he has stated that he was having passage through the property of Ashramam only. The further suggestion in cross examination as to whether the pathway made mentioned of in Ext.A1 is not in existence for his use, PW1 has answered that though there is such a recital in the document, there is no such way and it lies as garden land; that the Southern end of the way so mentioned ends in the property of the Ashramam and the Northern end ends in the neighbouring property and that there is no pathway as stated. PW1 has vehemently denied the suggestion that Yogini Amma has not permitted him to have the use of 'B' schedule as the pathway. The evidence of PW1 shows that the only access to 'A' schedule S.A. No.198 of 2000 -30- property was through the 'B' schedule pathway and that the 'A' schedule property was not having any other access.
14. However, it has come out in the evidence of PW1 that in Ext.C2(a) plan there is a place shown as digging place; that the pathway through the North shown in Ext.C2(a) ends at that place; that the said plot shown as digging place had been purchased by him; that it is adjacent to the 'A' schedule property and that however, he has sold it in 1983 to one Gopalakrishnan who has dug out soil from the said plot rendering the level difference between the said property and the 'A' schedule property to 14 feet. The said disposal of the property in 1983 is after institution of the said suit. It is the S.A. No.198 of 2000 -31- above act of the plaintiff that is contended by the defendants as disentitling the plaintiff to have the right of easement over 'B' schedule property by way of easement of necessity as it was by the conduct of the plaintiff himself that another way that he could have used was deprived of to him. However, the defendants have no case that the 'A' schedule property was having access through the plot shown as digging place in Ext.C2(a) even at the time of execution of Ext.A1 settlement deed. Consequently therefore, 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 S.A. No.198 of 2000 -32- easement by way of grant over 'B' schedule stands unaffected by the said conduct, if at all the plaintiff was having use of the said pathway on permission from Yogini Amma from 1940 onwards and that was being continued to be used as such even after Ext.A1 settlement deed. It is worthy to note that none of the defendants have entered the witness box to deny the existence of 'B' schedule pathway for access to 'A' schedule property from 1940 onwards as alleged by the plaintiff without any obstruction from any of the defendants. The very fact that the plaintiff was continuing to use the said pathway for access to 'A' schedule is an indication that there was implied grant of plaint 'B' schedule pathway for access to the 'A' S.A. No.198 of 2000 -33- schedule property even while 'A' schedule property was separately allotted to him under Ext.A1 settlement deed and such implied grant is inferable also on account of the acquiescence of the defendants in the plaintiff using 'B' schedule as pathway till it was for the first time objected on 21.7.1982 as alleged by the plaintiff.
15. Though it is contended by the defendants in para 16 and 17 of the written statement that in the settlement deed of the 1125 ME a pathway of 6 links width from the North Western corner of the Ashramam property beginning from the paddy land is provided for and the plaintiff's property adjoins the said pathway and that as the Ashramam is not at present using the pathway S.A. No.198 of 2000 -34- the plaintiff has made some inroads and encroachment in this pathway without the knowledge and consent of the Ashramam, the Matadhipathi and the managing committee members of the Ashramam, no evidence at all has been adduced by the defendants to establish the said contention in the written statement. They have also not been able to establish the contentions in paragraph 35 of the written statement that the pathway provided in the settlement deed is on the Eastern extremity of the Ashramam properties and runs along the Western boundary of the Thiruvananthapuram Radio and Broadcasting station; and that that provides access to the plaint 'A' schedule property otherwise than through 'B' schedule property when the S.A. No.198 of 2000 -35- evidence of PW1 is to the effect that it does not provide access to any road. Though the defendants in paragraph 41 of the written statement contended that the allegation that the pathway with its gate on the South Western extremity has been granted by the said Yogini Amma to the plaintiff as an easement of grant and that he is using it from time immemorial is false and hence denied, they have stated further in paragraph 42 of the written statement that originally there was only a trace to go to the buildings, nursery school, welfare centre etc; put up by the Ashramam and that the narrow pathway was widened for taking vehicles to Ashramam and that the present pathway came into existence only within some S.A. No.198 of 2000 -36- 10 years. The contention so raised are further not established. However the existence of the 'B' schedule pathway at least for the last 10 years stands admitted by the above pleadings. To establish the contention that the said pathway came into existence only within the last 10 years and that prior thereto there was only traces of pathway is not established by any evidence whatsoever adduced on the side of the defendants when the evidence tendered by the plaintiff is otherwise. It also stands admitted in paragraph 34 of the written statement by the defendants that the building in plaint 'A' schedule property was constructed by the Matadhipathi and that it is the said building and the plot having an S.A. No.198 of 2000 -37- extent of 1 acre and odd that has been allotted to the plaintiff. The defendants have no case as to which was the pathway that was in use for access to the 'A' schedule property and the building therein from 1940 onwards if it was not 'B' schedule as is alleged by the plaintiff. The dispute between the plaintiff and the defendants and the alleged terms of compromise stated in paragraph 24 to 66 of the written statement is suggestive of the plaintiff having no other access at present other than through 'B' schedule pathway which is alleged to have been obtained by him by way of grant. It is seen from the pleading in paragraph 66 of the written statement that the Ashramam offered to give a pathway of 5 links width S.A. No.198 of 2000 -38- from the Ashramam properties outside the compound wall but the plaintiff backed out stating that the width of the pathway should be enhanced to 15 links and it is thus he has instituted the suit.
16. In the instant case, the courts below have concurrently found on a proper appreciation of the evidence adduced in the case that Plaint 'B' schedule property was being used as a pathway by the plaintiff ever after construction of the building in 1940 in 'A' schedule property. The defendants also do 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 S.A. No.198 of 2000 -39- 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 Ext.A1 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 Ext.A1 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 pathway to plaint 'A' schedule property in residential occupation of the plaintiff. S.A. No.198 of 2000 -40- Merely because the plaintiff contended that he was granted the building in 'A' schedule property for his occupation and plaint 'B' schedule property as pathway by Yogini Amma that does not stand in the way of the court upholding the case of the implied grant at least from the date of Ext.A1 settlement deed in view of the long use of the pathway by the plaintiff up to 1982 as has been found by the courts below on an appreciation of the evidence in the case and especially when the defendants have not cared to adduce any evidence from their side to substantiate their contentions. In Katiyar's Law of Easement and Licences (12th Edition) at page 192 it is observed thus "implication of grant of an easement may arise upon severence of a S.A. No.198 of 2000 -41- tenement by its owner into parts. Again the acquisition of easement by prescription may be classified under the head of implied grant for all prescription presupposes a grant. There is a third class of cases where such a grant is inferred on account of the acquiescence".
17. It is further observed at page 197 as
"A verbal promise or representation or an agreement to be inferred from the conduct is sufficient to create an easement. The reason is that 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".
18. Again at page 199 under note 14 to
S.A. No.198 of 2000 -42-
Section 8 of the
Easement Act, it is
observed 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".
19. Further at page 242 of Katiyar's Law
S.A. No.198 of 2000 -43-
of Easement and Licences (12th edition)
dealing with "implied grant" it is observed
"If there are no express words in a document, it does not follow that an implied grant of easement cannot be spelt out. An easement may arise by implication under a grant if an intention to grant can properly be inferred either from the terms of the grant or from the circumstances. An easement may also arise, by what may be called a constructive grant, from general words in the grant read in the light of the circumstances. 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 S.A. No.198 of 2000 -44- 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".
20. In the instant case as is contended by the plaintiff, the original grant was by Yogini Amma but however, that grant could not perfect as an easement for the reason that 'A' schedule property and the building therein has not been assigned to the plaintiff and Yogini Amma herself was the S.A. No.198 of 2000 -45- owner of both 'A' schedule and 'B' schedule properties and consequently there was no question of 'B' schedule becoming the servient tenement and 'A' schedule becoming the dominant tenement. However, it was the desire of Yogini Amma that was implemented by her disciples under Ext.A1 settlement deed in 1125 ME. When it was Yogini Amma's desire that was so implemented, the right of the plaintiff to have 'B' schedule as a pathway could not have been taken away. In fact, there was implied grant of 'B' schedule as pathway as can be inferred from the circumstances for the reason that no other pathway was provided for access to 'A' schedule property and there was no objection also to the use of 'B' schedule as pathway S.A. No.198 of 2000 -46- by the plaintiff from 1125 ME till 1982 when alone the cause of action for the suit arose. Thus the courts below were right in holding that the plaintiff is entitled to right of easement by way of grant over 'B' schedule pathway for access to 'A' schedule property. There is no merit in the second appeal and the second appeal deserves to be dismissed with costs.
21. In the result, I dismiss this second appeal with costs to the additional respondents. K. P. BALACHANDRAN,
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