An interesting question arises for consideration in this appeal. At the time of admission, the following substantial questions of law were formulated for consideration. 1) When the owners of adjoining properties lay out a pathway between their lands by providing portions of their respective lands for forming the same and its remains in use for more than 20 years, can any of them be permitted to obstruct or close the portion of the pathway formed in his property?
2) Is not the owner of a property entitled to claim the right of prescriptive easement over the others property when two adjoining land owners have formed a pathway between their properties by dedicating parts of properties of both and the pathway has been in use for a period of more than 20 years?
3) Are the trial court and appellate court justified in refusing to the prayer for declaration and injunction with regard to the portion of plaint schedule item No.2 having a length of 114 feet for the reason that the plaintiff also has a right over it?
4) Whether the finding of the appellate court that the prayer for mandatory injunction to remove the Kayyala is time barred is correct, in view of the fact that the earlier suit for the same relief was withdrawn with liberty to file a fresh suit?
2. The facts fall within a narrow compass. The plaint item No.1 property belongs to the plaintiff and plaint item No.2 is a pathway. Plaint item Nos.3 and 4 belong to the defendants. As per the allegations in the plaint, pathway scheduled as item No.2 starts from Ramapuram-Manathoor road and runs in between plaint item Nos.3 and 4 and finally it reaches the property of the plaintiff. It is claimed that that is the only means of access to the property of the plaintiff and he has been enjoying the pathway for more than 20 years. The details of the pathway could be discernible from the schedule to the plaint. The plaintiff claimed right of easement over the pathway and also sought for a decree directing the respondents-defendants to remove the obstructions caused to the pathway.
3. The defendants resisted the suit. It is contended that the plaintiff is having no property described as item No.1 in his possession. It is also contended that the description of plaint item No.2 was not correct and there is no pathway as claimed by the plaintiff. It is further pointed out that the plaintiff has other means of access to his property. Further contention was that there is an edavazhy starting from Ramapuram-Manathoor road and that is being used by the plaintiff.
4. On the basis of the above pleadings, issues were raised and the parties went to trial. The evidence consists of the testimony of PWs 1 to 5 and the documents marked as Exts.A1 to A7 from the side of the plaintiff. The defendants examined DW1 and Exts.C1 and C1(a) are also marked.
5. Both the courts below found the existence of pathway as alleged by the plaintiff and which was used by the plaintiff.
Further the courts below found that the item No.2 pathway runs through the properties of the defendants till a rocky area and therefore held that plaintiff is entitled to relief in respect of that portion. However, beyond that portion, it was found by the courts below, on an admission made by the plaintiff as PW1, that rest of the pathway over which right is claimed was formed by taking portion of the plaintiff's property and also portion of the property of the 1st defendant and therefore it could not be said that the pathway is a servient tenement or in other words, the courts below came to the conclusion that the claim of pathway beyond rocky area does not satisfy the ingredients of Section 15 of the Indian Easements Act and therefore declined to grant relief to the plaintiff. The suit to that extent was dismissed which was confirmed in appeal.
6. Sri.K. Gopalakrishna Kurup, learned counsel appearing for the appellant assails the findings of the courts below on several grounds. It was pointed out by him that even assuming that, strictly speaking, Section 15 of Indian Easements Act may not apply to the facts of the case, the principle of lost grant can be invoked in favour of the plaintiff. If it is proved that there is a pathway as alleged and also that it has been used for a long period, as a matter of right, the presumption is that use of way was as of right. If these ingredients are established, merely because Section 15 of the Easements Act as such is not attracted, it will not be proper for the court to decline relief to the plaintiff. It is contended that as things now stand, the only means of access to the plaintiff's property is through plaint item No.2. Learned counsel pointed out that Section 15 of the Act is not exhaustive regarding the acquisition of right by prescription and if it is shown that there does exist a pathway and it has been used for long, as of right, relief could not have been declined.
7. Learned counsel appearing for the respondent, Sri.P.C.Haridas, pointed out that the definite plea was one of prescriptive right of easement as contemplated under Section 15 of the Easements Act though the necessary ingredients to attract that provision are absent in the plaint. It was pointed out that having failed to prove the necessary ingredients to attract Section 15 of the Act, the plaintiff cannot set up a different case at the second appellate stage to defeat the contention of the defendants. It was further contended that the relief for mandatory injunction was barred in the sense that even in 1994, there was a suit filed by the plaintiff for the very same reliefs and the said suit was later withdrawn. The present suit is of the year 2009. Learned counsel went on to point out that there is no way in existence as alleged in the plaint much less it used by the plaintiff. The courts below were fully justified in declining to grant relief to the plaintiff for the simple reason that the claim was based on Section 15 of the Easements Act.
8. That there is a way starting from Ramapuram- Manathoor road running towards the northern side and thereafter towards the eastern side, in existence, is beyond dispute. It also leads to the property of the plaintiff. It is now beyond dispute that the pathway is running from the Ramapuram-Manathoor road till it reaches the rocky area shown in the commission report. The said pathway upto the rocky area shown in Ext.C1(a) plan runs between the properties of the defendants and court below granted a decree upto 58 feet towards north from the starting point of item No.2 way. Beyond the 58 feet both the courts found that rest of the pathway leading to property of the plaintiff was jointly laid by taking portions of plaintiff's property and defendants' property. From where the 58 feet length pathway from the road ends, there is continuing pathway having a length of 114 feet to reach the plaintiff's property. Admittedly or as found by both the courts, that portion was jointly owned by plaintiff and defendants. If that be so, plaintiff being owner of a portion of that way cannot claim easement by prescription.
9. The finding of both the courts below is that upto 58 feet from where the pathway starts is a rocky area shown as 'പQറഭQഗ#' in Ext.C1(a). The plaintiff has prescriptive right of easement to use that portion. That the way exists and it had been used and is being used by PW1 is clearly established. Upto the length of 58 feet, there is no serious dispute. Controversy centres around the rest of the length of 114 feet of pathway leading to the plaintiff's property. The commission report and the evidence of PW1 show that the pathway has been in existence and has been used for a long time by the plaintiff. Both the courts below found it to be so. That finding need not be disturbed.
10. The question is whether when it is shown that a pathway which is formed by the contribution of land by both parties has been used by both parties for a long time can any right accrue to the parties.
11. Both the courts below have rightly found that in respect of that portion of the pathway which is formed by the contribution of land by both parties, prescriptive right of easement as contemplated under Section 15 of the Easements Act may not be available. The question as to whether in such circumstances as is found in this case any right is conferred has been dealt with by B.B.Katiyar in his book 'Law of Easements & Licences', 13th edition at page No.1025 which reads as follows:
“22. Mutual way between adjoining landowners.- The weight of authority is to the effect that, where adjoining proprietors lay out a way or alley between their lands, each devoting a part of his own land for that purpose, and the way or alley is used for the prescriptive period by the respective owners of their successors-in- title, neither can obstruct nor close the part which is on his own land, and in these circumstances the mutual use of the whole of the way or alley will be considered adverse to the separate and exclusive use by either party. However, where the owners of land use an alley- way for their mutual convenience, the user being occasional, permissive, and for broken periods of time, no right of way in the alley is established by prescription”.
12. It is by now settled that Section 15 of the Easements Act is not exhaustive. B.B.Katiyar in his book observes at page 401 thus:
“67. Section 15 is not exhaustive.- As has been already pointed out the provisions of Section 15 do not exhaust, the modes of acquisition of an easement by long user and, therefore, do not preclude other titles of modes of acquisition. For instance, although a tenant cannot acquire a prescriptive right of easement in land belonging to his landlord he may claim such right by immemorial user on the basis of a presumed grant. If a plaint contains allegations of user of a way for fifty or sixty years and is not confined in its averments to the mode of acquisition in Section 15, namely, prescription, the acquisition of an easement of right-of-way can be implied under a presumption of lost grant, provided there was no prejudice to the defendant in such a case, the High Court in appeal can allow the claim without remanding the case.
The word “easement” in Section 4 means perfected easement. To construe the expression “as an easement” occurring in Section 15 it is not proper to refer to the meaning of easement as given in Section 4”.
13. In A.I.R publication on Easements Act by Dr.Karandikar & Chitaley at Page 425 note 20 (Title by lost grant), it is observed as follows:
“(2) The evidence from which a lost grant may be inferred is not very different from the evidence on which a claim for a prescriptive easement may be established. (3) (Drainage system of defendant's building connected with sewer line of plaintiff's building - Right claimed by defendant exercised secretly - Held, right was not proved.) The presumption of lost grant may be negatived by showing legal incompetence as regards owner of the servient tenement to grant an easement or a physical incapacity of being obstructed as regard the easement itself or an uncertainty or secrecy of enjoyment putting out of the category of all known easements. (4) Where the plaintiff did make out a case of user from time immemorial in the plaint a decree could be granted on the basis of lost grant. (5) Acquisition of easement by immemorial user based on doctrine of lost grant can be claimed when dominant and servient tenements are held under same landlord. (6) Proof of the origin of right or by such proof of long & uninterrupted usage as in the absence of a documentary title will suffice to establish a prescriptive right.(7)”.
14. In Halsbury's Laws of India Vol 12 at Page 592, it is observed as follows:
“[240.741] Right of way acquired by prescription Right of way easements are governed by principles different from those applicable to easements of light and air as the former are unlawful in origin while the latter are in themselves lawful acts done in the lawful occupation and use of a persons own land. Where two sets of villagers, in order to avoid a dispute, set apart exclusive areas for fishing, on a memorandum of compromise, the arrangement must serve the ends of public policy. Where a disputed path was used without objection for more than 20 years it raises a presumption that the use is of right and that an easementary right of way over the path in dispute is acquired by prescription. The right of way must have been enjoyed in the manner laid down by the owner or occupier of the dominant heritage and merely because persons visiting the alleged dominant heritage followed a certain route does not confer right of way on the owners of the alleged dominant heritage”.
15. In Halsbury's Laws of England Vol 16(2) at Page 42, paragraph 76, it is observed as follows:
“76. Prescription based on presumed grant. The doctrine of prescription generally is based upon the presumption of a grant, the common law doctrine being that all prescription presupposes a grant once made and validly subsisting, but since lost or destroyed. The other forms of prescription are merely modifications of this doctrine. The presumption in the former instance of such a grant arises under the doctrine of prescription from the fact of enjoyment of the right. It therefore follows that a right claimed by prescription must be such that it could have formed the subject matter of a grant. Nothing which cannot have had a lawful beginning can be claimed by prescription. Recourse can only be had to the doctrine of prescription in cases where a grant of the right is not forthcoming, for prescription has no place if a grant is proved and its terms are known”.
16. In Halsbury's Laws of England Vol 16(2) at Page 43, paragraph 79, it is observed as follows:
“79. Presumption in favour of long user. Every presumption is made in favour of long user. Not only ought the court to be slow to draw an inference of fact which would defeat a right that has been exercised during a long period, unless such inference is irresistible, but it ought to presume everything that it is reasonably possible to presume in favour of such a right. Where the user is equally consistent with two reasonable inferences, either of which would provide a lawful origin for the right enjoyed, the inference of a lost grant will not necessarily be drawn”.
17. Paragraphs 81 and 82 read thus:
“81. Basis of prescription at common law. Prescription at common law is based upon a presumed grant which the law assumed to have been made prior to 1189, the first year of the reign of Richard I. By the ancient rule of the common law, enjoyment of an easement has to be proved from time 'whereof the memory of man runneth not to the contrary, that is to say, during legal memory or since the commencement of the reign of Richard I”.
82. Time for which user must be proved. As it is usually impossible to prove user or enjoyment further back than the memory of living persons, proof of enjoyment as far back as living witnesses can speak raises a prima facie presumption of an enjoyment from the remoter era. Where evidence is given of the long enjoyment of a right to the exclusion of all other persons, enjoyed as of right as a distinct and separate property in a manner referable to a possible legal origin, it is presumed that the enjoyment in the manner long used was in pursuance of such an origin, which, in the absence of proof that it was modern, is deemed to have arisen beyond legal memory.
Unexplained user of an easement or other incorporeal right for a period of 20 years is also held to be presumptive evidence of the existence of the right from time immemorial, but the rule is not inflexible, the period of 20 years being only fixed as a convenient guide. It is not, however, necessary in the case of a claim by prescription at common law to prove user for 20 years next before the proceedings in which the claim is made”.
18. A reading of the above literature on the subject leaves one no doubt that merely because Section 15 of the Easements Act is not attracted, it may not be proper to decline relief to the plaintiff if other ingredients as mentioned by the authors referred to above are satisfied. If it is proved that there does exist a way as alleged in the plaint and it has been used for considerably long period i.e. over 20 years, then merely because the ingredients to attract Section 15 are not established, will the court be justified in declining relief?
19. The answer seems to be in negative. In such cases, the courts have invoked the theory of lost grant for granting relief to the parties. When it is shown that a pathway is in existence and it has been used for a long time, the initial presumption drawn is unless shown otherwise it is used as of right.
20. In the case on hand, the plaintiff has alleged in the
O.S. that at the time of evidence, plaint item No.2 does exist and he has been using it for more than 20 years as means of access to his property. His further case is that that is the only means of access to his property. The question as to whether in such cases where the ingredients of Section 15 of the Easements Act are not available, whether any relief can be granted to a person who claims to have a right of way were considered in the decision in Gayadhar Nayak and others vs. Bhagaban Rout and others
(AIR 1963 Orissa 155). Almost on identical facts, it was held that the plaintiff is entitled to relief. In the said decision, the trial court dismissed the suit but the lower appellate court having found existence of pathway for more than 30 years and that it has been used by the plaintiff, invoked the doctrine of lost grant and granted relief to the plaintiff reversing the decree of the trial
court. That was challenged before the High Court. Referring to the decision in Rajrup Koer vs. Abdul Hossein (ILR 6 Calcutta 394(PC)), it is observed as follows:
“His Lordship relied upon a decision of the Privy Council reported in Rajrup Koer vs. Abdul Hossein, ILR 6 Cal 394(PC)), and held that the provision of the Limitation Act regarding the acquisition of right of easement was not exhaustive and such right may be acquired by long enjoyment which under the circumstances of each case may lead to a presumption of lost grant or agreement. Thus a person claiming an easement may establish his right in a number of ways. He may claim an easement by the prescriptive methods defined in S.15 of the Easements Act or may claim a right independent of that Section. He may prove the grant by grant of a document, by oral evidence and from the available evidence adduced before the Court, the Court may have come to its own conclusions”.
21. The issue was also considered in the decision in
Rawaji Gokkal Kulmi vs. Keshav Ramji Kulmi and others
(AIR 1963 Madhya Pradesh 202) wherein in paragraphs 19 and 20 it was held as follows:
“Thus where in his allegations in the plaint the plaintiff, no doubt, spoke of his right of way based on easement (sukhadhikar) but it was consistent with its being under Section 15 as well as under grant lost in antiquity and there were clear allegations regarding the user of the way for the last 50 or 60 years, the use of the word signifying 'easement' (Sukhadhikar) did not necessarily confine the averment of the plaintiff to the mode of acquisition under Section 15 of the Easements Act and could as well imply acquisition of it under a presumption of lost grant. When the defendant had opportunity to meet the plaintiff's averment regarding alleged use of the way by him and his ancestors for the last 50 or 60 years, he had tried to meet it and led evidence on that point. There was no prejudice likely to be caused to him if the case were considered on the basis of the mode of acquisition of the easement by lost grant and in such a case remand was not necessary”.
22. It is therefore clear from the above discussion that merely because the plaintiff is unable to satisfy the ingredients of Section 15 of the Easements Act, he cannot be declined relief in case where the claimant is able to prove the existence of pathway and its use as a matter of right for a long period. In such cases, as has been observed in the decisions, the principle of lost grant can be applied. Therefore, the courts below were not justified in declining to grant relief to the plaintiff.
23. The next question that arises for consideration is whether due to the absence of pleadings regarding doctrine of lost grant, any prejudice has been caused to the defendants. Two issues in that respect raised by the trial court read as follows:
1) Is the description of the plaint schedule item No.2 property true and correct?
2) Whether the plaintiff has got easement by prescription over plaint schedule item No.2 property as claimed?
24. Before going into the discussion, one should remember that the contention raised by the defendants is one of total denial of existence of the way and its use by the plaintiff. According to the defendants, it was an edachal through which excess water was drained out. They dispute the very existence of way. In the light of the two issues mentioned above, the parties went to trial fully conscious of the case they had to meet and evidence were adduced. The defendants denied the claim put forward by the plaintiff and also the lie of the way over which the right was claimed. In view of the 2nd issue which is mentioned above, which was found in favour of the plaintiff, it is clear that the plaintiff was enjoying the right of user for a long period. Thus it can be seen that even though the doctrine of lost grant is not pleaded in the plaint, the ingredients necessary to attract the said principle was available in the pleadings and so also it is clear from the issues that the parties were put on alert regarding the case they had to meet. They adduced evidence accordingly. It was based on the Commissioner's report and evidence adduced by the plaintiff that the trial court as well as the lower appellate court found the existence of way as alleged and its use as claimed by the plaintiff.
25. In the light of these facts, there is little merit in the contention raised by the learned counsel for the respondents. The defendants have been prejudiced by the absence of pleadings of lost grant in the plaint.
26. What now remains to be considered is the plea regarding limitation of mandatory injunction. It is admitted that there was an earlier suit and it was withdrawn with permission to file proper suit. The contention raised is that the obstruction was caused in 1994 and the present suit is only in 2009. Viewed from any angle, the plea for mandatory injunction is barred by limitation.
27. The trial court as well as the lower appellate court have found that the plaintiff is not entitled to the relief of mandatory injunction. The basis on which the said findings were entered into was by relying on the Commissioner's report which showed that the pathway has varying width. No appeal has been preferred against that finding.
28. In the light of the discussion made above, the question of law in the appeal has to be answered in favour of the plaintiff. The decree has therefore necessarily to be modified.
29. In the result, this appeal is allowed and that portion of the decree of the trial court declining to grant relief in respect of the pathway shown as item No.2 extending beyond 58 feet upto the entry point to the plaintiff's property is set aside and there will be a declaration that the plaintiff is having right of way for that portion also. The permanent prohibitory injunction granted in respect of the pathway will extend to the entire plaint item No.2. There will be no order as to costs.
In the light of the above, there is no merit in the cross objection. It is accordingly dismissed.
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P.BHAVADASAN JUDGE smp // True Copy // P.A. to Judge.