SAIDU Vs. MOIDUTTY

JUDGEMENT

(1.) Concurrent decision rendered by two courts below upholding the claims of the Respondent/Plaintiff for a declaration of injunction, both prohibitory and mandatory, is challenged by the Appellants/Defendants in this Second Appeal.

(2.) Plaintiff claimed a declaration as to his right to easement by grant and also by necessity over a pathway, a pond and a well, on the basis of the provisions made in Ext.A1 partition deed. The plaint property was one among the items covered by the partition deed (Ext.A1) entered by the predecessors-in-interest of the Plaintiff and Defendants and a pathway (kannidavazhi), a pond and a well were left in common for all the sharers, is the case of the Plaintiff. The plaint schedule properties were set apart to the share of his father and, later, on the basis of a gift deed executed by his father he had exclusive right over the plaint schedule properties, according to the Plaintiff. The Defendants, who have obtained items of properties covered by Ext.A1 partition deed had blocked the kannidavazhi (B schedule) constructing new wall and they have also obstructed the Plaintiff from using the well and pond, all of which were left in common under Ext.A1 partition deed, was the case of the Plaintiff for the declaration of his right of easement through plaint B schedule property to reach plaint A schedule and for mandatory injunction directing the Defendants, to demolish the wall constructed over the way and for restoration of the properties to its previous position and for a prohibitory injunction restraining the Defendants from causing any obstruction in enjoyment of plaint B schedule way. The Defendants, resisting the suit, contended that the way had been provided under Ext.A1 deed only for taking the cattle to the cattle shed then in existence and it has long since obliterated after the cattle shed has been destroyed some twenty years ago. They also disputed the right claimed by the Plaintiff over the way, well and pond contending that neither the Plaintiff nor his predecessors have enjoyment over the same.

(3.) On the materials placed, both the courts have concluded that the provision made under Ext. A1 partition deed over the kannidavazhi, pond and well, leaving it in common for all sharers, amounted to an easement by grant and as such, the Plaintiff who has come into possession of one of the items covered by that deed, is having a valid right, as claimed, over that way, pond and well, and the challenges raised by the Defendants disputing such claims are meritless. Obstructions over the kannidavazhi (B schedule) having been established by the report and plan of the advocate commissioner and also the other materials tendered in the case it was also held that such obstructions are liable to be removed. The entitlement of the Plaintiff having thus been established in the case with the challenges thereto by the Defendants shown to be meritless the suit claims were decreed which, in appeal was confirmed by the lower appellate court. The learned Counsel for the Appellants/Defendants challenged the concurrent findings entered by the courts below on the disputed facts involved in the case reiterating the defences set up to resist the suit claim, mainly that the kannidavazhi mentioned in Ext.A1 partition deed has ceased to be in existence long ago. I do not find any merit in the challenge so mooted since the provision made in Ext.A1 partition deed conferred a right of easement by grant on the sharers to use the kannidavazhi, pond and well, keeping them undivided and in common for the benefit of all the sharers. When that be so, it was not in use for quite some time even assuming so, after the demolition of the cattle shed as contended by the Appellants, that would no way impeach the right of easement over that way, pond and well as it has been provided as an easement of grant under the partition deed. In the matter of grant needless to point out, the parties are governed by the terms of the grant and none of them can turn around and dispute such grant for the reason that the grant is not available to the other party. Under an easement by grant, the party who is entitled thereto is in fact having a title in the land for the enjoyment so provided and its extinguishment at the volition or act of a third party or under the circumstances covered by Section 47 of the Indian Easements Act, which are applicable to other rights of easement, cannot be pressed into service to deny such grant. The conclusion formed by the courts below on the proved facts and also the materials placed in the case upholding the claims of the Respondent/Plaintiff does not suffer from any infirmity and the decree passed in favour of the Plaintiff is proper and valid. Appeal does not involve any question of law, leave alone substantial question of law to receive it on the file of this Court.