MATHAI Vs. JORDI POULOSE

JUDGEMENT

(1.) APPELLANT is the plaintiff in O.S.No201/2001andthedefendantinO.S.No.l46/2001 on the file of Munsiff Court, Perumbavoor. Respondents in R.S.A 1270/2005 are the defendants in O.S.201/2001 and first respondent therein who is the sole respondent in R.S.A. 1267/2005 is the plaintiff in O.S. 146/2001.O.S.201/2001 is filed by the appellant seeking a decree for declaration that under Ext. A3 agreement dated 14.2.1988, appellant has every right to continue the pipeline through the plaint B schedule property and to pump water from plaint C schedule property to the plaint A schedule property and also to restrain respondents by a permanent prohibitory injunction from interfering with the plaint D schedule pipeline or taking water through it. O.S. 146/2001 was instituted seeking a decree for mandatory injunction directing the appellant to remove the pipeline which passes through the plaint schedule property, not being used and is in a dilapidated condition and a permanent prohibitory injunction restraining appellant from trespassing into the plaint schedule property or using it as a way. Plaint schedule property in O.S. 146/01 is the plaint B schedule property in O. S.201/01. Both the suits were tried jointly. Learned Munsiff on the evidence dismissed O.S.201/01 and granted a decree for mandatory injunction in favour of the respondent in O.S. 146/01. APPELLANT challenged the said common judgment in A.S.234/2004 and A.S.235/2004 before Additional District Court, North Parur. Learned Additional District Judge on reappreciation of evidence confirmed the decree of the Trial Court and dismissed the appeals. R.S. A. 1267/2005 is filed challenging the judgmentinO.S.146/2001 as confirmed in A.S.234/2004. R.S.A. 1270/2005 is filed challenging the judgment in O.S.201/2001 as confirmed in A.S.235/2004. The appeals were admitted formulating the following substantial questions of law.

(2.) LEARNED counsel appearing for the appellant and respondent were heard.

(3.) THE crucial question is what is the nature of the right created under Ext.A3. Whether it creates an easement of grant as claimed by the appellant or the right created is only a licence, as claimed by the respondent. THE facts are not disputed. Plaint A and C schedule properties belong to the appellant and plaint B schedule property to the respondent. Ext.A3 was admittedly executed on 14.2.1988. THE first executant was Mathai Varkey and the second executant the appellant. Respondent is the successor in interest of the first executant. Under Ext. A1 Mathai Varkey permitted appellant to lay pipeline across the plaint B schedule property two feet below the ground level, to take water from plaint C schedule property to the property of the appellant which lies to the west of plaint B schedule property. THE plaint B schedule property was intended to be settled in favour of his third son N.V. Varghese. Before considering the nature of the right created under Ext. A3 the distinction between a right of easement and a right created under a licence is to be borne in mind.