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Sunday, November 24, 2013

Indian Easements Act, 1882 - s.13(b) - Easement rights - Easement by grant - Suit for declaration of easement rights over `B' schedule property of the plaint as a pathway to `A' schedule property of the plaint - `A' Schedule property had been allotted to plaintiff in terms of a settlement deed - `B' Schedule pathway was situated within property under control and use of defendants - Held: Grant can be by implication as well - There was implied grant of `B' schedule property as pathway, which can be inferred for the reason that no other pathway was provided to plaintiff for access to `A' schedule property and there was also no objection from defendants to use of `B' schedule property by plaintiff as pathway for number of years, at least up to the time, when alone cause of action for the suit arose - Plaintiff acquired right of easement in respect of `B' schedule pathway by way of implied grant. = Sree Swayam Prakash Ashramam & Anr. ...Appellants VERSUS G. Anandavally Amma & Ors. ...Respondents = published in http://judis.nic.in/supremecourt/helddis.aspx

              Indian Easements Act, 1882 - s.13(b) - Easement rights - Easement by grant
- Suit for declaration of easement rights over `B' schedule property of the
plaint as a pathway to `A' schedule property of the plaint - `A' Schedule
property had been allotted to plaintiff in terms of a settlement deed - `B'
Schedule pathway was situated within property under control and use of
defendants - Held: Grant can be by implication as well - There was implied
grant of `B' schedule property as pathway, which can be inferred for the
reason that no other pathway was provided to plaintiff for access to `A'
schedule property and there was also no objection from defendants to use of
`B' schedule property by plaintiff as pathway for number of years, at least
up to the time, when alone cause of action for the suit arose - Plaintiff
acquired right of easement in respect of `B' schedule pathway by way of
implied grant.

Constitution of India, 1950 - Art. 136 - Interference with findings of
facts arrived at by Courts below - Scope - Suit for grant of easement
rights - No specific issue on question of implied grant - But parties
adduced evidence for purpose of proving and contesting implied grant -
Courts below found that plaintiff had acquired right of easement by way of
implied grant - Held: In such circumstances, Supreme Court cannot upset the
findings of fact arrived at by Courts below in exercise of its powers under
Art.136.

Respondent-plaintiff filed suit for declaration of easement rights by way
of necessity or of grant over `B' schedule property of the plaint as a
pathway to `A' schedule property of the plaint.

Both `A' schedule and `B' schedule properties of the plaint originally
belonged to one `Y', who was in enjoyment and management of a vast extent
of properties including plaint `A' and `B' schedule properties for benefit
of the first defendant-Ashramam. After the death of `Y', her disciples
executed a settlement deed as per her directions whereby `A' Schedule
property of the plaint was allotted to the plaintiff. The `B' Schedule
pathway of the plaint was situated within the property under the control
and the use of defendants.

The trial court accepted the version of the plaintiff that apart from `B'
Schedule pathway, there was no alternate pathway leading to the `A'
schedule property and, that the plaintiff was entitled to easement right in
respect of the `B' schedule pathway by implied grant as also by necessity,
and decreed the suit. The First Appellate Court held that even assuming
that the plaintiff had an alternative pathway as contended by the
defendants, it did not extinguish the right of easement of grant in favour
of the plaintiff, though the declaration granted on the ground of easement
of necessity was not justified. Both courts concurrently found on
appreciation of evidence that `B' Schedule property was being used by the
plaintiff-respondents for access to `A' Schedule property even after
construction of a building on `A' Schedule property. Second appeal filed by
defendants was dismissed by the High Court. Hence the present appeal.

     Dismissing the appeal, the Court

HELD: 1. The case of the defendants-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. The facts and circumstances of the case amply show that there was
an implied grant in favour of the original plaintiff (since deceased)
relating to `B' schedule property of the plaint for its use as pathway to
`A' schedule property of the plaint in residential occupation of the
original plaintiff (since deceased). In 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.
The High Court was perfectly justified in holding that when it was the
desire of `Y' to grant easement right to the original plaintiff (since
deceased) by 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. The High Court was 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 plaintiff (since deceased) at least up to
1982, when alone the cause of action for the suit arose. [Paras 25 and 26]
[285-G-H; 286-A-E; 287-B-C]

Annapurna Dutta v. Santosh Kumar Sett & Ors. AIR 1937 Cal.661, referred to.

Katiyar's Law of Easement and Licences (12th edition), referred to.

2. 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 `Y' as an
easement of grant. 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, this Court cannot upset the findings of fact arrived at by the
Courts below, in exercise of its powers under Article 136 of the
Constitution. It is true that the defendant-appellants alleged that no
implied grant was pleaded in the plaint. However, the Trial Court 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 appellants. Since the findings of the High Court as well as of the
trial court on the question of implied grant have been accepted, it would
not be necessary to deal with the decisions on the easement of necessity
which necessarily involves an absolute necessity. 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. [Paras 27, 28 and 29] [287-F-H; 288-A; 288-B-D; 288-F-G]

Justiniano Antao & Ors. vs. Smt. Bernadette B.Pereira 2005 (1) SCC 471,
held inapplicable.

Case Law Reference:

AIR 1937 Cal. 661 referred to Para 25
2005 (1) SCC 471 held inapplicable Para 28

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7 of 2010.

From the Judgment & Order dated 9.5.2006 of the High Court of Kerala at
Ernakulam in S.A. No. 198 of 2000 (F).

T.L. Viswanatha Iyer, Subramonium Prasad for the Appellants.

P. Krishnamoorthy, M.T. George for the Respondents.

                                          1


                                             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

                        JUDGMENT

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.
                                                             2




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. 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:



1) 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]


New Delhi;                           .................................J.



January 05, 2010                                 [V.S.Sirpurkar]

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