SOMASEKHARAN Vs. RADHAKRISHNAN

JUDGEMENT

(1.) Can an easement by grant be created by a settlement deed is the question which falls for consideration in these appeals. The appellant/plaintiff in O.S. No.422 of 2007 has been non-suited concurrently by the courts below on the ground that the covenant in the deed is vague and unenforceable.

(2.) The appellant, as plaintiff, instituted O.S. No.422 of 2007 before the Additional Sub Court, Irinjalakuda, seeking a declaration of his right of way created under a settlement deed dtd. 12/4/1979. The suit for declaration was necessitated because a subsequent assignee from one of the brothers of the plaintiff instituted a suit, O.S. No.568 of 2006, before the Additional Sub Court, Irinjalakuda, seeking for a decree of injunction restraining the appellant herein from trespassing into the plaint schedule property, thereby setting up a claim that, the covenant in the settlement deed is vague and hence unenforceable. Facts leading to the institution of the above-mentioned suits are not under dispute and hence succinctly stated as follows:

(3.) On appreciation of the oral and documentary evidence, the trial court held that the covenant in the deed is indefinite and hence unenforceable and accordingly decreed the suit, O.S. No.568 of 2006 and dismissed O.S. No.422 of 2007. Aggrieved, the appellant preferred A.S. Nos.112 of 2010 and 114 of 2010 before the Additional District Court-I, Thrissur, and by judgment and decree dtd. 30/6/2016, both the appeals were dismissed and hence these present second appeals.