Friday, 17 April 2020

Whether a person can get easement by grant as well as easement by prescription simultaneously?

An easement by grant is available to Madhavan Nair for access to his property which is on the eastern side of the plaint A schedule property. The learned counsel for the plaintiffs has submitted that as the son of Madhavan Nair the defendant can use the B schedule pathway to go to his father's house. The dominant tenement so far as the easement by grant is concerned is the property on the east of the A schedule property and not the property on the south of the B schedule pathway. An easement by prescription is claimed to keep open the opening in the southern wall of the pathway. But there is only one servient tenement which is the B schedule pathway which forms part of the A schedule pathway. An easement by grant and an easement by prescription are separate and distinct rights. No one can have a dual easement in the same servient tenement. The easement by grant is and has been the source of the right for the entry of Madhavan Nair or anybody under him into the B schedule pathway. When that be so, there can be no user of it as of right to prescribe an easement under Sec. 15 of the Indian Easements Act. The holder of an easement by grant cannot acquire an easement by prescription unless he abandons the former right. There is no such case for the defendant. He cannot simply contend for an easement by prescription for his father unless he pleads that the right of way by grant was abandoned and the user as of right was started. No such plea is raised. One cannot take an easement by prescription without dropping the easement by grant 20 years ago. The easement by prescription pleaded by the defendant is a baseless plea.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

RSA No. 686 of 2016 (F)

Decided On: 24.10.2019

 Reghuprasad  Vs. M. Raghunathan and Ors.

Hon'ble Judges/Coram:
A.M. Babu, J.

Citation: AIR 2020 Kerala 16


1. The suit was for perpetual injunction. The trial court dismissed it. In appeal, the learned district judge decreed the suit in part. The defendant is in second appeal.

2. Heard Sri. S.M. Prem, the learned counsel for the defendant and Sri. S.V. Balakrishna Iyer, the learned senior counsel for the plaintiffs.

3. The property owned by the plaintiffs and the property owned by the defendant's father Madhavan Nair lie adjacent. Those properties were one holding owned by one A.V. Raghava Warrier. He executed Ext. A3 will to bequeath his property to Madhavan Nair, his son, and Radha, his adopted daughter. The land was perpendicularly divided into two unequal parts and the land on the extreme east was bequeathed to Madhavan Nair and the rest to Radha. These are admitted facts.

4. The plaint A schedule property which was part of the land bequeathed to Radha was sold by her to the plaintiffs in 1988 under Ext. A1 sale deed. The plaint B schedule property is a pathway which starts from the public way on the west and culminates in the property on the east which Madhavan Nair received under Ext. A3 will. The B schedule pathway ran through the property of Radha when she was holding it. Madhavan Nair was given a right under Ext. A3 will to use the plaint B schedule pathway for access to his property on the east. It is an easement by grant. The portions of the property held by Radha after the sale of the plaint A schedule property came to the hands of Madhavan Nair. These are also admitted facts.

5. The plaintiffs contended that the B schedule pathway is part of the A schedule property. It must be so. Ext. A1 recites the sale of the plaint A schedule property to the plaintiffs inclusive of the B schedule pathway. The sale of the A schedule property including the B schedule pathway to the plaintiffs by Radha was subject to the easement by grant enjoyed by Madhavan Nair. Ext. A1 specifically recites so. The defendant who contends for easement under his father cannot dispute the title of the servient owner to the servient heritage. The B schedule pathway is indeed a part of the A schedule property.

6. The relationship of the parties went strained on account of their dispute on the user of the B schedule pathway. Therefore the plaintiffs filed the suit for a decree of injunction. Even entry of the defendant into the B schedule pathway was sought to be prevented. His entry cannot be prevented since as the son of Madhavan Nair he has the right to use the pathway to go to his father's house which is situated in the property on the east. The trial court dismissed the suit upholding the easement by prescription claimed by the defendant under his father. The appellate court interfered with the said finding and negatived the claim of easement by prescription.

7. Admittedly a compound wall exists on the southern boundary of the B schedule pathway. There is an opening in the said compound wall. The appellate court accepted the evidence adduced on the side of the defendant that the opening was in existence for over 25 years. The easement by prescription claimed by the defendant under his father was found against by the learned appellate judge. The learned judge found that the defendant and his father could use the opening in the compound wall to enter the property on the southern side of the pathway only because of the permission given by the plaintiffs and not as of right. This finding is assailed in the second appeal.

8. The decree granted by the learned district judge reads as follows:

(a) The defendant and his men are restrained by permanent prohibitory injunction from parking any vehicles in plaint B schedule pathway. Defendant is further restrained by a decree of permanent injunction from causing obstruction to plaintiffs reconstructing either the southern boundary wall of plaint B schedule pathway or closing the existing opening in the wall.

(b) Suit seeking to restrain defendant and his men from using plaint B schedule pathway is, however, dismissed.

The decree cautiously passed by the learned district judge no way affects the easement by grant pleaded by the defendant and admitted by the plaintiffs. Entry of the defendant into the B schedule pathway for access to his father's property on the eastern side is not prevented by the decree under appeal. The defendant is aggrieved by the decree since the plaintiffs can re-construct the compound wall on the southern side of the pathway without leaving an opening or can retain the existing compound wall and close the opening.

9. The second appeal was admitted formulating the following question as a substantial question of law:

Whether the lower appellate court committed illegality in holding that the plaintiffs have right to re-construct wall and to close the opening in the wall?
The result of the second appeal depends on the finding on the easement by prescription pleaded by the defendant and negatived by the appellate court.

10. An easement by grant is available to Madhavan Nair for access to his property which is on the eastern side of the plaint A schedule property. The learned counsel for the plaintiffs has submitted that as the son of Madhavan Nair the defendant can use the B schedule pathway to go to his father's house. The dominant tenement so far as the easement by grant is concerned is the property on the east of the A schedule property and not the property on the south of the B schedule pathway. An easement by prescription is claimed to keep open the opening in the southern wall of the pathway. But there is only one servient tenement which is the B schedule pathway which forms part of the A schedule pathway. An easement by grant and an easement by prescription are separate and distinct rights. No one can have a dual easement in the same servient tenement. The easement by grant is and has been the source of the right for the entry of Madhavan Nair or anybody under him into the B schedule pathway. When that be so, there can be no user of it as of right to prescribe an easement under Sec. 15 of the Indian Easements Act. The holder of an easement by grant cannot acquire an easement by prescription unless he abandons the former right. There is no such case for the defendant. He cannot simply contend for an easement by prescription for his father unless he pleads that the right of way by grant was abandoned and the user as of right was started. No such plea is raised. One cannot take an easement by prescription without dropping the easement by grant 20 years ago. The easement by prescription pleaded by the defendant is a baseless plea.

11. The learned counsel for the defendant submitted that the appellate court granted a decree which was not sought for. The submission is not acceptable. For, the impugned decree was granted allowing relief (c) in the plaint. There is no reason to set aside the decree under appeal. Therefore the appeal deserves only a dismissal. In the circumstance of the case, I do not tax the defendant with costs.

12. Dismissed. No costs.




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