STATE OF KERALA Vs. GOPINATHAN NAIR

JUDGEMENT

(1.) An interesting point of law arises for consideration in this second appeal. Property comprised in R.S. No. 84/B is a residential paramba of the plaintiff's tavazhi. The approach to this paramba from the nearby Panchayat road is through a pathway marked Al in the Plan, Ext. Cl, filed by the Commissioner appointed in the case. That pathway and the plot marked A lying immediately east of it are included in R.S. No. 85/2. The Panchayat road lies east of these plots. The portion of Sy. No. 85/2 lying west of this Panchayat road was acquired for a public purpose, viz., for the purpose of a play ground for school children. Some time before suit the 1st defendant State wanted to construct a compound wall on the north and west enclosing plots A and Al. In the plot A the 1st defendant has constructed a building for the A.E.O. office. The 2nd defendant who is the contractor for the construction of the compound wall collected some materials very near the pathway marked A1 and began to obstruct the pathway. So the plaintiff filed the suit for a declaration that he has got an easement right over the portion marked Al for a pathway to his house in R.S. No. 84/3B lying on the north west of plot Al. He also prayed for an injunction restraining the defendants from interfering with this pathway. The defendant State denied that the plaintiff had any easement right along the portion marked A1. It was also contended that even if he had any such easement right, with the acquisition of the entire portion of Sy. No. 85/2 lying west of the Panchayat road the same has been extinguished. The Trial Court found that the only approach to the plaintiff's house from the Panchayat road is through the pathway marked Al in the Plan. That court further found that the plaintiff has established a right of easement over that plot. The lower appellate court also found that plaintiff has no other right of way to his house except through this pathway. That court further found that the plaintiff's property and the property acquired once upon a time belonged to the same owner and the plaintiff has an easement of necessity to use the pathway to reach the road. Though the right of easement was thus upheld by the lower courts they differed on the right of the plaintiff to ask for declaration of an easement right and for injunction. The Trial Court found that with the acquisition by the State of the servant tenement under the Land Acquisition Act all the rights of the plaintiff for an easement have been extinguished. According to that court, the property acquired vested in the Government free of all encumbrances which includes the right of easement claimed by the plaintiff. But, the lower appellate court held that under S.41 of the Easements Act an easement of necessity will be extinguished only when the necessity ceases and the acquisition under the Land Acquisition Act will not extinguish this easement of necessity. Consequently the plaintiff was given a decree restraining the defendants from interfering with that right of way. This second appeal is filed by the State in these circumstances.

(2.) It is not quite clear from the records whether the property claimed by the plaintiff and that acquired by the State originally belonged to the same owner and whether by separate transactions from the original owner they vested in two different persons. Hence, it is doubtful whether the plaintiff can claim an easement of necessity over the plot marked A1 for a pathway. But, that is immaterial, for, the plaintiff has satisfactorily established an easement right over this plot by his user as of right for more than the prescribed period. This right is not seriously disputed by the appellant and no specific ground is taken in the memorandum of appeal challenging this finding also. So, we have to proceed on the basis that the plaintiff had an easement right for a pathway over the property acquired by the State.

(3.) The next question is whether this right is extinguished by the acquisition proceedings. There are two aspects of this matter requiring consideration. Firstly, it has to be considered whether the plaintiff's easement right can be extinguished by the land acquisition proceedings inasmuch as he was not given any notice under S.9 of the Land Acquisition Act, 1894 to submit his claim. The second aspect is whether on the vesting in the State of the property acquired, the right of easement will also be extinguished. As regards the first aspect it has to be borne in mind that the failure, if any, to give notice to the plaintiff under S.9 of the Land Acquisition Act will not affect the declaration that the land over which this easement right is claimed is required for a public purpose. The purpose of S.9 notice is only to fix the compensation amount for the land acquired. Failure to issue that notice to a person interested in the land may possibly not affect his right to make a claim for compensation inspite of the completion of the land acquisition proceedings. But, that will not invalidate the declaration or the acquisition. Whatever that is capable of vesting in the Government will vest in the Government under S.16 of the Land Acquisition Act, 1894.