Kerala High Court

Mariamma Simon vs *Prasad on 13 November, 2024

                                                      2024:KER:84047
F.A.O (RO) Nos.232 & 233 of 2015             1



              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                THE HONOURABLE MR. JUSTICE G.GIRISH
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2024 / 22ND KARTHIKA, 1946
                       FAO (RO) NO. 232 OF 2015


         AGAINST THE JUDGMENT & ORDER OF REMAND DATED 18.08.2015
IN AS NO.21 OF 2015 OF DISTRICT COURT, PATHANAMTHITTA ARISING
OUT OF THE JUDGMENT & DECREE DATED 24.01.2015 IN OS NO.220 OF
2009 OF MUNSIFF COURT, RANNY


APPELLANT/1ST RESPONDENT/PLAINTIFF:

             MARIAMMA SIMON
             W/O.SIMON CHERIAN, NEELAMPLALIL PLAMTHOTTATHIL HOUSE,
             THEKKUMKAL.P.O., KOTTATHOR MURI, AYROOR VILLAGE, RANNY,
             PATHANAMTHITTA.


             BY ADVS.
             SRI.JACOB P.ALEX
             SRI.JOSEPH P.ALEX


RESPONDENTS/APPELLANT & RESPONDENTS 2 & 3 /
DEFENDANTS 3, 1 & 2:

     1       *PRASAD,S/O.SREEDHARAN, THADATHIL HOUSE, ANGADI.P.O.,
             ANGADI MURI AND VILLAGE, RANNY, PATHANAMTHITTA.689
             674.(DIED)

     2       SIDHARDHA KUMAR VARMA
             S/O.SUNEETHY VARMA, THADATHIL HOUSE, ANGADI.P.O.,
             ANGADI MURI AND VILLAGE, RANNY, PATHANAMTHITTA.689 674.

     3       PRIYA S.VARMA
             W/O.SIDHARDHA KUMAR VARMA, THADATHIL HOUSE,
             ANGADI.P.O., ANGADI MURI AND VILLAGE, RANNY,
             PATHANAMTHITTA.689 674.
             IT IS RECORDED THAT: R1 IS DEAD AND IT IS NOT NECESSARY
                                                    2024:KER:84047
F.A.O (RO) Nos.232 & 233 of 2015     2



             TO IMPLEAD ANYONE ELSE AS THE LEGAL REPRESENTATIVE OF
             THE DECEASED R1 SINCE THE OWNERS OF THE SUIT PROPERTY
             IN QUESTION ARE ALREADY IN PARTY ARRAY AS R2 AND R3.
             VIDE ORDER DTD. 11/11/16 IN MEMO DTD. 7/11/16 BEARING
             C.F.NO.3901/16.


             BY ADV.
             BIJU ABRAHAM


     THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN
FINALLY HEARD ON 02.11.2024, ALONG WITH FAO (RO).233/2015, THE
COURT ON 13.11.2024 DELIVERED THE FOLLOWING:
                                                                  2024:KER:84047
F.A.O (RO) Nos.232 & 233 of 2015              3




               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                   THE HONOURABLE MR. JUSTICE G.GIRISH

WEDNESDAY, THE 13TH DAY OF NOVEMBER 2024 / 22ND KARTHIKA, 1946

                         FAO (RO) NO. 233 OF 2015

          AGAINST THE JUDGMENT & ORDER OF REMAND DATED 18.08.2015

IN   AS    NO.22   OF   2015   OF   DISTRICT      COURT   &   SESSIONS   COURT,

PATHANAMTHITTA       ARISING   OUT OF THE JUDGMENT & DECREE DATED

24.01.2015 IN OS NO.222 OF 2009 OF MUNSIFF COURT, RANNI

APPELLANT/1ST RESPONDENT/DEFENDANT:

              MARIAMMA SIMON, W/O.SIMON CHERIAN,
              NEELAMPLALIL PLAMTHOTTATHIL HOUSE, THEKKUMKAL.P.O.,
              KOTTATHOR MURI, AYROOR VILLAGE, RANNY, PATHANAMTHITTA.

              BY ADVS.
              SRI.JACOB P.ALEX
              SRI.JOSEPH P.ALEX


RESPONDENTS/APPELLANT/PLAINTIFF:

     1        PRASAD (DIED)
              S/O.SREEDHARAN, THADATHIL HOUSE, ANGADI.P.O., ANGADI
              MURI AND VILLAGE, RANNY, PATHANAMTHITTA.689 674.

     2        SIDHARDHA KUMAR VARMA (Additional 2nd respondent)
              S/O. SUNEETHY VARMA , THADATHIL HOUSE ANDADI P.O.
              RANNY, PATHANAMTHITTA.

     3        PRIYA S VARMA (Additional 3rd respondent)
              W/O. SIDHARTHA KUMAR VARMA, THADATHIL HOUSE ANGADI P.O.
              RANNY, PATHANANTHITTA
                                                    2024:KER:84047
F.A.O (RO) Nos.232 & 233 of 2015     4



             IT IS RECORDED THAT THE SOLE RESPONDENT DIED; VIDE
             ORDER DATED 11/11/2016 IN MEMO DATED 17/10/2026 BEARING
             C.F. NO.3662/2016 AND LEGAL REPRESENTATIVES OF THE
             DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDL R2 &
             ADDL.R3 VIDE ORDER DATED 11/11/2016 IN IA 1151/2016.


             BY ADV.
             BIJU ABRAHAM


     THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN
FINALLY HEARD ON 02.11.2024, ALONG WITH FAO (RO).232/2015, THE
COURT ON 13.11.2024 DELIVERED THE FOLLOWING:
                                                             2024:KER:84047
F.A.O (RO) Nos.232 & 233 of 2015          5




                             JUDGMENT

The common judgment rendered by the District Court,

Pathanamthitta on 18.08.2015 in A.S.Nos.21/2015 and 22 of 2015, is

under challenge in this appeal. A.S.No.21/2015 was against the decree

and judgment in O.S.No.220/2009, and A.S.No.22/2015 was against the

decree and judgment in O.S.No.222/2009, rendered by a common

judgment dated 24.01.2015 of the Munsiff's Court, Ranni. Both the

above suits were for the reliefs of injunction. In O.S.NO.220/2009, the

plaintiff was aggrieved by the alleged act of the defendant obliterating a

pathway which existed through the property of the defendant in

curtailment of the easement of necessity of the plaintiff. Accordingly, the

plaintiff sought a decree of mandatory injunction in the said suit for the

restoration of the above said pathway, and a decree of prohibitory

injunction restraining the defendant from interfering with her user of

the said pathway. O.S.No.222/2009 was instituted by the 3rd defendant

in O.S.No.220/2009 who represented the defendants 1 and 2 as well,

for the relief of permanent prohibitory injunction against the plaintiff in

O.S.No.220/2009 from cutting open a new pathway through their 2024:KER:84047

property. The learned Munsiff, after evaluation of the common evidence

adduced by the parties in both the suits, arrived at the finding that the

plaintiff in O.S.No.220/2009 was entitled for the decree of mandatory

and prohibitory injunctions. The relief of prohibitory injunction sought

for in O.S.No.222/2009 was declined.

2. The common judgment and decree so rendered by the

learned Munsiff was challenged by the 3rd defendant in

O.S.No.220/2009 who was the sole plaintiff in O.S.No.222/2009, by

filing A.S.No.21/2015 and 22/2015 before the District Court,

Pathanamthitta.

3. The learned District Judge, before going into the merits of

the evidence adduced by the parties, made the observation in the

impugned judgment that the plaintiff in O.S.No.220/2009 cannot claim

easement by necessity through the way which was set apart either by

express consent or by implied consent for providing a way to her

property. It is the further observation of the learned District Judge that

in the facts and circumstances of the case what could be discerned is

that the owner of the servient tenement might have given consent to

the owner of the dominant tenement to use a particular portion of the 2024:KER:84047

property as means of access and that it would come under the purview

of easement by express or implied grant. According to the learned

District Judge, the necessity would come to an end once the dominant

owner starts using the way, and hence it is not possible to claim any

reliefs on the basis of easement by necessity if some obstruction has

been caused to the way at a later point of time after the user of the

said way by the dominant owner or his assignees. It is further clarified

in the impugned judgment that once the easement by necessity gets

extinguished by such user, there cannot be any revival, and the real

remedy available to the accused person is to claim the right which he

enjoyed over the way in existence. In other words, the learned District

Judge was of the opinion that once a way comes into existence

pursuant to the fulfillment of easement by necessity, the right of the

user to claim easement by necessity ceases, and he can only resort to

some other rights over that way, consequent to his continuous user, if

there is any obstruction caused thereafter. It is thus observed in the

impugned judgment that the relief sought for in O.S.No.220/2009 is

'something else not within the purview of the grant of easement by

necessity'.

2024:KER:84047

4. In the light of the aforesaid observations made in the

impugned judgment, the learned District Judge felt it necessary to

remand the case back to the Trial Court to enable an opportunity to the

plaintiff in the leading case (the appellant herein) to amend the plaint

suitably and to redress her grievance by seeking appropriate reliefs.

Accordingly, the impugned judgment was rendered setting aside the

decree and judgments in both the suits and remanding back the suits to

the Trial Court for fresh disposal in accordance with law.

5. In the present appeals, the appellant would contend that

the learned District Judge erred grossly in understanding the basic

pleadings in O.S.No.220/2009, and failed to appreciate the easement by

necessity claimed by the appellant in the correct perspective.

6. Heard the learned counsel for the appellant and the learned

counsel for the respondent.

7. The right of easement by necessity is envisaged under

Section 13 of the Indian Easements Act, 1882. Among the various

clauses incorporated in that Section, Clause (a) alone has got relevance 2024:KER:84047

in the facts and circumstances of this case. The aforesaid clause, with

the substantial heading portion, reads as follows:

"Where one person transfers or bequeaths immovable property to another,-

(a) If an easement in other immovable property of the transferer or testator is necessary for enjoying the subject matter of the transfer or bequest, the transferee or legatee shall be entitled to such easement."

Going by the contents of the aforesaid provision, there is absolutely no

room for any doubt about the right of a purchaser of landed property

to claim easement by necessity over a portion of the remaining

immovable property of the seller if it is found necessary for enjoying

the land transferred to the buyer.

8. As far as the present case is concerned, it could be seen

from the pleadings and evidence that the 30 cents of land claimed by

the appellant and another 30 cents which existed on the immediate

north of it was enjoyed as a single plot of 60 cents by one Kesavan

Nair who transferred the aforesaid plots to the mother of the appellant

and the brother of appellant's mother on the same day in the year

1975. At that time, out of necessity to have access to the 30 cents on 2024:KER:84047

the south sold to the appellant's mother, a way is said to have come

into existence from the Panchayat road on the north of the 30 cents

given to the appellant's mother's brother. Lateron, the respondents are

said to have purchased the 30 cents which belonged to the appellant's

mother's brother in the year 2009, along with some other property

which existed on the immediate west of the above said 30 cents as

well as the 30 cents which belonged to the appellant. The specific

averment in the plaint in O.S.No.220/2009 is that, immediately after

the purchase of the properties by the respondents in the year 2009 as

above, they have destroyed the pathway used by the appellant as a

way of access to her 30 cents from the Panchayat road on the north,

through the 30 cents which earlier belonged to her mother's brother. It

is on the basis of the aforesaid contentions that the appellant instituted

O.S.No.220/2009 seeking the relief of mandatory injunction for the

restoration of the pathway and for prohibitory injunction for preventing

the respondents from causing further obstructions to the user of the

said pathway.

9. Having regard to the fact that the 30 cents claimed by the

appellant and the 30 cents which existed on immediate north of it 2024:KER:84047

earlier existed contiguously as enjoyed by the owner Kesavan Nair, and

that both the above plots were transferred on the same day to the

appellant's mother and appellant's mother's brother, the transfer of the

30 cents on the north of the appellant's property can only be subject to

the right of the appellant's mother to use a way of access from the

northern Panchayat road through the aforesaid 30 cents in exercise of

her easement by necessity. In other words, it can only be concluded

that Kesavan Nair transferred the 30 cents on the north of the property

sold to the appellant's mother subject to the right of easement of the

appellant's mother to have a way of access through the said property

to the northern Panchayat road. This is all the more because of the

reason that there is nothing on record to show that the 30 cents of

land given to the appellant's mother was having access through any

other surrounding properties to the nearby public road. Thus, it could

be seen that the right of easement claimed by the appellant over a way

on the property of the respondents existing on the immediate north of

it, has its basis in easement by necessity envisaged under section 13(a)

of the Indian Easements Act.

2024:KER:84047

10. The observation of the learned District Judge about the

extinction of easement by necessity once the dominant owner starts

using the way which came into existence in accordance with the

operation of law relating to easement by necessity, does not appear to

be correct in view of the opinion expressed by the authorities on this

point. It has been observed in page No. 257 of the 17th edition of

'Law of Easements and Licences' by B.B. Katiyar as follows:

" A way of necessity is distinguished from the right of way acquired by prescription and cannot ripen into a prescriptive easement so long as necessity continues. A way of necessity arises by virtue of conditions entirely different from easement of way created by prescription. The former arises by implication of law out of the necessities of the case and is based upon principle of law which negative the existence of a way by continuous adverse user. The acquisition by way of adverse user is based upon the theory of hostility of the use to the title of the person over whose lands it is acquired, while a way of necessity is based upon an implication of an intended grant and the use of it is based entirely upon such implication or consent to its use. In a case though the plaintiff failed to prove that he used the disputed path for more than 22 years prior to the institution of the suit, the right of way was granted in favour of plaintiff due to necessity of having path leading to the land of the plaintiff. Acquisition of easement by prescription as per 2024:KER:84047

Section 15 and easement of necessity as provided in Section 13 of the Easements Act, 1882, are independent of each other. No overlapping of exercise of easementary rights under Section 13 and Section 15 of the Act can be there."

11. The distinction between easement of grant and easement of

necessity is dealt with in page No. 278 of the aforesaid treatise as

follows:

"The question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for grant also. But easement of grant is a matter of contract between parties. In the matter of grant the parties are governed by the terms of the grant and not by anything else. Easement of necessity and quasi easement are dealt with Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restricts its user subject to any condition the parties will be governed by 2024:KER:84047

those conditions. Anyhow, the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant that it was to continue only until such time as the necessity was absolute, in fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, the permanency in user must be recognized and the servient tenement will be permanently burdened with the disability. Such a right does not arise under the legal implication of Section 13, nor is it extinguished by the statutory provision under Section 41 of the Act which is applicable only to easement of necessity arising out under Section 13."

12. As regards the provisions contained in Section 41 of the

Indian Easements Act about the extinction of easement of necessity

when the necessity comes to an end, the aforesaid extinction would

come into play only when the dominant owner is put in to a position to

enjoy his tenement without having recourse to the former easement of

necessity. The right of way of necessity continues during the

subsistence of necessity. Therefore the observation of the learned

District Judge about the extinction of the easement by necessity

claimed by the appellant once her predecessor started using the way

through the property existing on the north of her property, does not 2024:KER:84047

appear to be a correct appreciation of the relevant provisions contained

in Section 13 and Section 41 of the Easements Act. The question of

extinction of easement of necessity over the way claimed by the

appellant will not arise till she gets an alternate access to her property

and thus wiping off the necessity to use the property of the

respondents as a way of access to her property. Thus the observations

made by the learned District Judge in the impugned judgment contrary

to the above aspect, is not in accordance with the law on this point.

13. It could be seen from the commission report and rough sketch

prepared in O.S. No. 222/2009, which are marked as Exhibit C2 and

C2(a), that the learned Advocate Commissioner had shown the

existence of a way to the property of the appellant, which starts from

the northern panchayat road and extends southwards through the

western side of the two properties existing on the west of the

appellant's property and joins a bund by the side of a water channel

existing in the east west direction through the southern side of the

properties of the appellant and the properties existing on the west of

it. According to the Advocate Commissioner, who was examined as

DW3 before the trial court, the only obstruction for the appellant in 2024:KER:84047

using the above said way of access to reach the northern panchayat

road, is the existence of the stone wall constructed on the southern

boundary of the appellant's property. In other words, the evidence

adduced before the trial court through Ext. C2 series would give the

impression that the appellant would be able to enter into the bund on

the south of her property by dismantling a small portion of the stone

wall constructed on the southern boundary of the property, and

thereafter she could travel towards the west through that bund upto

the western side of the two properties existing on the west of that

property and then turn northwards and travel straight to the northern

panchayath road through the pathway which connects the said

panchayat road with the above said bund existing on the south of the

properties. If the above said alternate way of access could be used by

the appellant to reach the panchayat road on the north, definitely her

claim of easement by necessity over the property of the respondent

gets extinguished under the provisions of Section 41 of the Indian

Easements Act.

14. The learned counsel for the appellant contended that the

aforesaid way of access shown by the Advocate Commissioner in Exts.

2024:KER:84047

C2 series cannot be used by the appellant due to the existence of a

water channel in between the bund portion and her property. By

relying on the dictum laid down by this Court in Chellappan Pillai v.

Andi Damodaran 1992 (2) KLT 671, the learned counsel for the

appellant would contend that the alternate access through water

cannot be reckoned while considering the question whether the

necessity got extinguished due to the availability of an alternate access

to the dominant tenement. The learned counsel for the respondent,

per contra, contended that the water channel shown by the Advocate

Commissioner as existing by the side of the bund on the south of the

properties including that of the appellant is having a width of only 1.5

feet, and that there is absolutely no difficulty in stepping into the bund

portion from the property of the appellant if she is ready to dismantle a

portion of the stone wall constructed on the southern boundary of her

property. However, it is pertinent to note that the commission report

and rough sketch marked as Ext. C2 series, and the testimony of the

Advocate Commissioner as DW3, do not disclose the actual width of

the water channel or the height of the water level in it. Ironically, none

of the parties preferred objection to the commission reports. Except 2024:KER:84047

for the statement of the witness examined as DW2 that the above

water channel is not having much width, there is absolutely nothing on

record to ascertain whether the existence of the above water channel

is a potential obstruction for the appellant to enter into the bund

existing on the south of her property so as to use the bund portion to

have access to the public road on the north. If it is shown that the

appellant could use the above bund without any interruption to have

access to the outer world from her property, her claim of easement by

necessity over the property of the respondent will come to an end.

When viewed in the above perspective, the order passed by the

learned District Judge directing the remand of the cases to the trial

court has to be retained, though the reasons stated by the learned

District Judge in the impugned judgment for the remand of the case

cannot be approved at all. The need to have the cases remanded back

to the trial court for fresh disposal arose solely due to the reason that

there is absence of evidence pertaining to the feasibility of use of the

bund which exists on the south of the property of the appellant as an

alternate way of access to the appellant's property. For that purpose

alone, the cases need to be remitted back to the trial court. However, 2024:KER:84047

there will not be any proscription for the parties concerned for opting

for amendment of the pleadings or taking further steps for garnering

evidence supporting their respective contentions, if they so prefer.

Accordingly the appeals are disposed of as follows:

1. The impugned judgment of the District Court remanding the cases to the trial court is upheld in part, making it clear that the trial court shall dispose of the suits, untrammelled by any of the observations in the above judgment of the District Court about the nature of easement right claimed by the appellant.

2. The trial court shall proceed with the trial in continuation of the evidence already adduced in the earlier spell of the litigation and dispose of the cases on merit after considering the whole evidence afresh, having regard to the observations made in this judgment.