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]
- 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.
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]
