REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7  OF 2010 (Arising out of SLP (C) No. 17235 of 2006)

Sree Swayam Prakash Ashramam & Anr.        …Appellants

VERSUS

G. Anandavally Amma & Ors.                          …Respondents

J U D G M E N T

TARUN CHATTERJEE, J.

1. Delay condoned.

2. Leave granted.

3. This  appeal  is  directed  against  the  judgment  and  order  

dated 9th of May, 2006, passed in Second Appeal No.198 of  

2000 of the High Court of Kerala at Ernakulam, by which  

the High Court had affirmed the concurrent findings of fact  

arrived at by the courts below in a suit for declaration of  

easement rights in respect of ‘B’ Schedule property of the  

plaint  as  a  pathway  to  the  ‘A’  Schedule  property  of  the  

plaint.

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4. It  may  be  mentioned  that  during  the  pendency  of  the  

second appeal before the High Court of Kerala, the original  

plaintiff expired and his legal representatives were brought  

on record as substituted respondents before the High Court,  

who  are  respondents  in  this  appeal.  For  the  sake  of  

convenience, the appellants herein would be referred to as  

‘the  defendants’  as  they  were  in  the  original  suit  for  

declaration of easement and permanent injunction filed by  

the  original  plaintiff,  who  is  now  represented  by  the  

respondents herein.

5. The  case  that  was  made  out  by  the  plaintiff  (since  

deceased),  in  his  plaint  was  as  follows:  Plaint  A  and  B  

schedule properties originally formed part of a vast extent of  

properties which belonged to one Yogini Amma. During the  

life  time  of  Yogini  Amma,  she  was  in  enjoyment  and  

management of the entire property for the benefit of the first  

defendant Ashramam. On her death, her brother and sole  

legal  heir  Krishna  Pillai  and  other  disciples  executed  a  

settlement  deed  dated  20th of  June,  1948  as   per  the  

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directions  of  the  deceased  Yogini   Amma.  As  per  the  

settlement,  the  Schedule  ‘A’  property  of  the  plaint  was  

allotted  to  the  original  plaintiff  (since  deceased).  Even  

thereafter, the original plaintiff  (since deceased) continued  

to be in possession and enjoyment of  the said properties  

effecting  mutation  and   paying  taxes.  Even  before  the  

settlement deed was executed, during the life  time of the  

said Yogini  Amma,  there  is  a building being ‘A’  schedule  

property of the plaint  that was in occupation of the original  

plaintiff  (since deceased).  There is a gate provided on the  

South  Western  portion  of  the   ‘A’  schedule  property  for  

ingress and egress to the same and ‘B’  schedule property of  

the plaint which is a pathway extends up to the road on the  

West  from the  said  gate.  The  said  gate  and ‘B’  schedule  

pathway are as old as the  building in ‘A’ schedule property  

of the plaint.  Other than ‘B’ schedule pathway, there is no  

other  means  of  direct  or  indirect  access  to  ‘A’  schedule  

property of  the plaint  from any road or pathway. The ‘B’  

schedule pathway of the plaint was granted to the original  

plaintiff  (since  deceased)  as  easement  right  by  the  said  

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Yogini  Amma  and  the  original  plaintiff  (since  deceased)  

continued to use it as such from time  immemorial.  This  

pathway is situated within the property which is now under  

the control and use of the defendants. Defendant Nos. 2 to  

4  tried  to  close  down  the  gate  on  the  South  Western  

extremity  of  the  B  schedule  pathway  and  were  also  

attempting to change the  nature  and existence of  the  ‘B’  

schedule property of the plaint. An attempt in that direction  

was  made  on  21st of  July,  1982.  Original  plaintiff  (since  

deceased)  apprehended that  defendant  nos.  2  to  4 might  

forcibly close down the pathway. Hence, he filed a suit for  

declaration  of  easement  of  necessity  or  of  grant  and  

permanent  injunction  restraining  the  defendants  from  

obstructing  the  ‘B’  schedule  pathway  and  for  other  

incidental reliefs.

6. The  defendant  No.1  was  the  Matathipadhi  of  the  

Ashramam; defendant Nos. 2 and 3 were its office bearers  

and defendant No.4 was only an inmate of the Ashramam.  

Defendant Nos. 1 to 4 entered appearance and filed a joint  

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written  statement  praying  for  dismissal  of  the  suit  by  

making the  following defence:

The  suit  was  not  maintainable.  The  description  of  ‘A’  

schedule  and  ‘B’  schedule  properties  was  incorrect.  The  

original  plaintiff  (since  deceased)  was  attached  to  the  

institution from his childhood.  In consideration of  the  love  

and affection Yogini Amma had towards the original plaintiff  

(since  deceased),  she  wished  to  gift  some   portion  of  the  

property  to  him  and  in  pursuance  thereof,  Ashramam  

represented by  the then office bearers executed a  settlement  

deed  in  respect  of  the   properties.  Original  plaintiff  (since  

deceased) was the 13th signatory in the said settlement deed.  

There  is  a  pathway provided in  the  settlement  deed on the  

Eastern extremity  of  the Ashramam properties.  There is  yet  

another  lane  which  comes  along  the  Western   side  of  the  

Ashramam  property  through  which   also  the  plaintiff  has  

access to his  property. It is  incorrect to say that Plaint ‘B’  

schedule is  meant as a pathway for ingress and egress to ‘A’  

schedule property and that other than ‘B’ schedule property  

there  is  no  other   means of  direct  or  indirect  access  to  ‘A’  

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schedule property of the plaint. The further allegation that the  

pathway was granted  by the said Yogini Amma to the original  

plaintiff (since deceased) and that he was using it from time  

immemorial  was  also  not  correct.  Originally,  there  was  a  

narrow pathway which was widened to accommodate  traffic to  

the   Ashramam. The present  pathway came into  existence  

only within the last 10 years. It can never be considered as an  

easement of  necessity. Original plaintiff (since deceased) has  

no easmentary right to use the gate and the  pathway and he  

was not entitled to the  declaration or injunction prayed for.  

Therefore,  the suit  in the circumstances must be dismissed  

with  costs to the defendants.  

7. The  IInd  Additional  Munsif,  Trivandrum,  accordingly,  

framed the following issues which are as follows :

“ 1) Is not the suit maintainable?

  2) Whether the plaint schedule description is correct?

  3) Is there any pathway as Plaint B schedule?

4)  Is  the  plaintiff  entitled  to  easement  right  over  plaint  B  

schedule as pathway to Plaint A schedule?

  5) Is the plaintiff entitled to the declaration as prayed for?

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  6) Whether the injunction prayed for is allowed?

   7) Relief and costs.”

8. After  the  parties  adduced  evidence  in  support  of  their  

respective  cases  and  after  hearing  the  parties,  the  IInd  

Additional  Munsif,  Trivandrum  decreed  the  suit  for  

declaration of easement right and for injunction filed by the  

original plaintiff (since deceased), holding inter alia that :-  

The court noted that the plaintiff had claimed easement  

of  necessity  as well  as easement of  grant.  According to the  

plaintiff, during the lifetime of Yogini Amma itself, ‘B’ schedule  

pathway  had  been  given  to  him  as  an  easement  of  grant,  

which had been in use from those days and even prior to the  

execution of the settlement deed. The deed does not refer to  

the existence of ‘B’ schedule pathway for the plaintiff to access  

‘A’  schedule  property.  The  defendants  had  alleged  the  

existence  of  two  alternative  pathways  leading  to  the  ‘A’  

schedule property. However, the same was denied by the sole  

witness produced by the original plaintiff (since deceased). The  

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defendants could not lead any evidence to substantiate their  

claim  that  these  pathways  provide  access  to  ‘A’  schedule  

property. In a case where the original plaintiff  was claiming  

easement right either as grant or as of necessity the plaintiff  

has  only  a  primary  burden  to  prove  the  absence  of  any  

alternate  pathway.  As  the  defendants  have  not  proved  the  

existence  of  any  pathway  for  access  to  Plaint  ‘A’  schedule  

property the version of the plaintiff that there is no alternate  

pathway shall be accepted. According to the plaintiff, he had  

been residing in the building on ‘A’ schedule property and had  

been using ‘B’ schedule pathway from the year 1940. A trace  

of this pathway could be presumed to be in existence from the  

time when the Ashramam acquired the properties. As per the  

deed of settlement, there is a separation of tenements. At the  

time of its execution itself, the plaintiff could have had access  

to ‘A’ schedule property only through ‘B’ schedule pathway. As  

‘B’  schedule  pathway  was  required  for  the  reasonable  and  

convenient  use  of  the  plaintiff’s  property  and  that  on  

severance of the tenements, plaintiff can be presumed to have  

got a right over ‘B’ schedule pathway by an implied grant and  

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also an easement of necessity. It is not on record that either  

Yogini  Amma, or the defendants themselves until  1982 had  

obstructed  this  use  of  pathway.  There  is  no  reason  to  

disbelieve the plaintiff’s version that Yogini Amma had given  

‘B’ schedule pathway as grant for his use as he was a close  

relative of the former. There is an apparent and continuous  

use which is necessary for the enjoyment of the ‘A’ schedule  

property  within  the  meaning  of  Section  13(b)  of  the  Indian  

Easements Act, 1882, and, therefore, the plaintiff is entitled to  

easement right in respect of the pathway. The defendants have  

not entered the witness box to disprove the evidence led by the  

plaintiff.  

10. In these circumstances,  it was clear that ‘B’ schedule  

pathway was given to plaintiff  as an easement of grant.  

Defendants argued that no implied grant was pleaded in  

the plaint. However, it does not make a difference to the  

findings arrived at, as the plaintiff had pleaded easement  

of grant. The plaintiff’s right to ‘B’ schedule pathway does not  

affect the interest in the Ashramam property in any manner.  

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Since this issue was found in favour of the plaintiff, the relief  

of declaration and injunction was granted as prayed for.  

11. Feeling  aggrieved  by  the  order  of  the  IInd  Additional  

Munsif, the defendants preferred an appeal before the IIIrd  

Additional  District  Judge,  Thiruvananthapuram.  The  

Appellate  Court,  by  an  order  dated  6th of  April,  1999,  

allowed  the  appeal  partly.  The  issues  framed  by  the  

Appellate Court were as follows:

1) Whether the Trial Court was justified in granting a decree  

for declaration in favour of the plaintiff?

2)  Whether  the  finding  of  the  Trial  Court  that  plaintiff  is  

entitled to the decree of permanent injunction is correct?

12.The Appellate Court found that on evidence, it was proved  

that there is an alternate way on the western side of the ‘A’  

schedule  property.  The  plaintiff,  however,  asserted  that  

there  is  a  difference  in  level  of  14  feet  between  the  ‘A’  

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schedule property of the plaint and the property adjacent to  

it  which  is  situated  on  the  western  side.  However,  the  

existence of an alternate pathway, howsoever inconvenient,  

will defeat the claim of easement of necessity. The necessity  

must be absolute and must be subsisting at the time when  

the plaintiff claims right of way by easement.  In the light of  

these findings, the Appellate Court held that the claim of  

the  plaintiff  regarding the right  of  easement  of  necessity  

over the plaint ‘B’ schedule pathway was not sustainable.  

13.On the question of easement by grant, the Appellate Court  

was of the opinion that the plaintiff’s claim in that respect  

stood  proved.  The  plaintiff  had  acquaintance  and  

association with the Ashramam and Yogini Amma from his  

childhood days as revealed from the oral and documentary  

evidence.  Considering  the  location  and  nature  of  ‘B’  

schedule  pathway,  the  location  of  two  pillars  at  its  

inception and the gate from which it started, it could be  

seen that it had been in use by the plaintiff as a pathway.  

The plaintiff had been residing in the house on ‘A’ schedule  

property even prior to the deed of settlement. Therefore, the  

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Appellate  Authority  arrived  at  the  conclusion  that  the  

plaintiff  had  obtained  right  of  easement  of  grant  from  

Yogini Amma over the ‘B’ schedule pathway. An easement  

of grant is a matter of contract between the parties and it  

may  have  its  own  consideration.  (B.B.  Katiyar’s  

Commentaries on Easements and Licenses, p. 762). It may  

be either express or even by necessary implication. Though  

easement  of  necessity  will  come  to  an  end  with  the  

termination  of  necessity,  easement  acquired  by  grant  

cannot be extinguished on that ground as per section 13(b)  

of  the  Indian  Easements  Act,  1882.  Therefore,  even  

assuming that the plaintiff had an alternative pathway as  

contended by  the  defendants,  it  does  not  extinguish the  

right  of  easement  of  grant  in  favour  of  the  plaintiff.  

Therefore, the Trial Court was justified in granting a relief  

of  declaration  of  right  of  easement  of  grant  over  the  ‘B’  

schedule pathway. However, the declaration granted on the  

ground of easement of necessity was not justified.  

14.It was further held that the apprehension of the plaintiff on  

attempted  obstruction  of  the  ‘B’  schedule  pathway  was  

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well-founded and, therefore, the Trial Court was justified in  

granting  the  relief  of  permanent  injunction  against  the  

defendants.  

15. Aggrieved  by  the  order  of  the  first  Appellate  Court,  the  

defendants took a second appeal before the High Court of  

Kerala.  The  High  Court,  by  its  impugned  judgment  and  

order  dated 9th of  May,  2006,  dismissed the  appeal  and  

affirmed the orders of the Trial Court and of the Appellate  

Court.

16.The issues that were raised for consideration of the High  

Court were as follows:

1. While Yogini Amma owned and held the entire land in both  

the  schedules  at  that  time of  alleged grant,  whether  the  

finding of easement of grant is contrary to law of easement  

which enjoins the existence of two tenements?   

2. Whether  the  appellate  court  was  right  in  granting  an  

easement of grant without specifying the nature and extent  

of easementary right and without restricting it to the right  

of footway, when the terms of the grant are not known?  

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3. Whether  the  appellate  court  was  justified  in  granting  a  

decree for declaration in favour of the plaintiff as regards  

the easementary right by way of grant?  

17.The  High  Court  limited  itself  to  the  issue  whether  the  

decree  of  the  first  appellate  court  granting  the  original  

plaintiff (since deceased) right of easement over ‘B’ schedule  

property by way of grant concurring with the findings of  

the trial court was sustainable.

18.Before the High Court, the defendants pleaded that there  

had been no appeal or cross objection filed by the original  

plaintiff (since deceased) against the order of the Appellate  

Court which disallowed the claim of easement of necessity  

and, therefore, the finding that there existed no easement  

of  necessity  in  favour  of  the  original  plaintiff  (since  

deceased) over the ‘B’ schedule property stood confirmed.  

Further they contended that the alternative pathway on the  

western  side  of  the  ‘A’  schedule  property  was  rendered  

inconvenient by the very act of the original plaintiff (since  

deceased) who sold that portion of the property to a third  

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party  who  began  digging  that  pathway  resulting  in  the  

difference  in  level.  The  High  Court,  on  consideration  of  

these contentions,  held that though the claim of right of  

easement by way of  necessity over  ‘B’  Schedule  property  

may be affected by the subsequent sale of the said plot by  

the  plaintiff in 1983, the claim of right of easement by way  

of grant over ‘B’ schedule property stood unaffected by the  

said conduct.  

19. The very fact that the plaintiff was continuing to use the  

said pathway for  access to ‘A’  schedule  property was an  

indication that  there was implied grant of ‘B’   schedule  

pathway of the plaint for access to the ‘A’ schedule property  

even while ‘A’ schedule  property was separately allotted to  

him  under settlement deed. Such implied grant is inferable  

also on account of the acquiescence of the defendants in  

the  original plaintiff (since deceased) using ‘B’ schedule as  

pathway till  it was for the first time objected on  21st of  

July,  1982  as  alleged  by  the  original  plaintiff  (since  

deceased).

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20.The  High  Court  observed  that  the  Courts  below  had  

concurrently  found  on  a  proper   appreciation  of  the  

evidence adduced in the  case that ‘B’ schedule property of  

the plaint was  being used as a pathway by the plaintiff  

ever  after  construction  of  the  building  in   1940  in  ‘A’  

schedule property. The defendants did not dispute the case  

of the plaintiff that the plaintiff was in occupation of the  

building  ever  after  its   construction  in  1940.  The  

defendants  were  also  not  able  to  establish  that  the  

plaintiff  was  using  any  other  pathway  for  access  to  ‘A’  

schedule property and the building therein which was in  

his occupation. The mere fact that there is no  mention in  

settlement  deed  enabling  the  use  of  the  ‘B’  schedule  

pathway  for  access  to  ‘A’  Schedule  property  and  the  

building therein  is no reason to hold that there is no grant  

as the grant could be by implication as  well. The fact of the  

use  of  ‘B’  schedule   property  as  pathway  ever  after  

execution  of   settlement  deed  till  1982  by  the   plaintiff  

shows that  there  was  an implied  grant  in  favour  of  the  

plaintiff in relation to ‘B’ schedule property for its use as  

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pathway to ‘A’ schedule property of the plaint in  residential  

occupation of the plaintiff.

21.The  High  Court  relied  on  a  number  of  observations  in  

Katiyars Law of  Easement and Licences (12th Edition) on  

law with respect to “implication of grant of an easement.” It  

may arise upon severance of a tenement by its owner into  

parts. The  acquisition of easement by prescription may  be  

classified  under  the  head  of  implied   grant  for  all  

prescription presupposes a  grant. All that is necessary to  

create the easement is a manifestation or an unequivocal  

intention on the part of the servient owner to that effect.  

22.The  High  Court  quoted  with  approval  Katiyar’s  note  to  

Section 8 of the Easement Act, which reads as follows:  

"There  are  numerous  cases  in  which  an  agreement to grant easement or some other  rights   has  been  inferred  or  more  correctly   has  been  imputed  to  the  person  who  is  in  a   position  to   make  the  grant,  on  account  of   some  action  or   inaction  on  his  part.  These  cases  rest  on  the  equitable  doctrine of acquiescence,  but they may  be referred to, for the purpose of classification, as   imputed  or  constructive  grants.  The  party   acquiescing  is  subsequently  estopped  from  denying the existence of easement. It is as if such  person  had  made  an  actual  grant  of  the   easement…

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…It is the intention of the grantor whether he can  be presumed to have  been intended to convey to   the grantee a  right of easement for the reasonable   and     convenient enjoyment of the property which   has to be ascertained in all the circumstances of   the  case  to  find  out   whether  a  grant  can  be  implied.  A  description  in  a  conveyance  may  connote an  intention to create a right of easement.   An   easement  may  arise  by  implication,  if  the  intention to grant can properly be inferred  either   from the terms of the grant or the  circumstances".

23.Applying these observations to the facts of  the case,  the  

High  Court  held  that  though  the  original  grant  was  by  

Yogini Amma that grant could not perfect as an easement  

for the reason  that Yogini Amma herself was the owner of  

both  ‘A’  schedule  and  ‘B’  schedule   properties  and  

consequently  there  was  no   question  of  ‘B’  schedule  

property becoming the servient tenement and ‘A’ schedule  

property  becoming   the  dominant  tenement.  However,  it  

was the desire of Yogini Amma that was implemented by  

her disciples by virtue of the settlement deed. Therefore,  

the right of the plaintiff to have ‘B’ schedule property as a  

pathway could not have been taken away by the very same  

deed.  In  fact,  there  was  implied  grant  of  ‘B’  schedule  

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property  as  pathway  as  can  be  inferred  from  the  

circumstances, namely, i) no other pathway was provided  

for access to ‘A’  schedule property in the settlement deed  

and ii) there was no objection  to the use of ‘B’ schedule as  

pathway.  

24.Feeling aggrieved by the concurrent orders of the Courts  

below,  the  defendants/Appellants  have  filed  the  present  

special leave petition, which, on grant of leave, was heard  

in the presence of the learned counsel of the parties.

25.We have  heard  Mr.  T.L.  Viswanatha Iyer,  learned  senior  

counsel for the appellants and Mr. Subramanium Prasad,  

learned  senior  counsel  for  the  respondents.   We  have  

carefully examined the impugned judgment of the courts  

below and also the pleadings, evidence and the materials  

already on record.  It is not in dispute that the trial court  

as well as the First Appellate Court concurrently found on  

a proper appreciation of the evidence adduced in the case  

that the ‘B’ Schedule Property of the plaint was being used  

by the original plaintiff (since deceased) and thereafter, by  

the respondents even after construction of the building in  

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1940 in ‘A’ Schedule property of the plaint.  The appellants  

also did not dispute the case of the original plaintiff (since  

deceased)  that  he  was  in  continuous  occupation  of  the  

building even after its construction in the year 1940.  It is  

also not  in dispute  that  the  appellants  were not  able  to  

establish  that  the  original  plaintiff  (since  deceased)  was  

using any other pathway for access to ‘A’ Schedule Property  

of the plaint and the building therein,  which was in the  

occupation of  the original  plaintiff  (since deceased).   The  

case of the appellants that since there was no mention in  

the  deed  of  settlement  enabling  the  use  of  ‘B’  schedule  

pathway  for  access  to  ‘A’  schedule  property  and  the  

building therein, cannot be the reason to hold that there  

was no grant as the grant could be by implication as well.  

It  is  not  in  dispute  that  the  fact  of  the  use  of  the  ‘B’  

schedule  property  as  pathway  even  after  execution  of  

Exhibit A1, the settlement deed in the year 1982 by the  

original  plaintiff  (since deceased)  would amply show that  

there was an implied grant in favour of the original plaintiff  

(since  deceased)  relating  to  ‘B’  schedule  property  of  the  

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plaint for its use as pathway to ‘A’ schedule property of the  

plaint  in  residential  occupation  of  the  original  plaintiff  

(since  deceased).   In  the  absence  of  any  evidence  being  

adduced by the appellants to substantiate their contention  

that  the  original  plaintiff  (since  deceased)  had  an  

alternative pathway for access to the ‘A’ schedule property,  

it is difficult to negative the contention of the respondent  

that since the original plaintiff  (since deceased) has been  

continuously using the said pathway at least from the year  

1940 the original plaintiff (since deceased) had acquired an  

easement right by way of an implied grant in respect of the  

‘B’  Schedule  property  of  the  plaint.   It  is  an  admitted  

position that both ‘A’ schedule and ‘B’ schedule properties  

of the plaint belonged to Yogini  Amma and her disciples  

and  it  was  the  desire  of  Yogini  Amma  that  was  really  

implemented  by  the  disciples  under  the  settlement  deed  

executed in favour of the original plaintiff (since deceased).  

Therefore, the High Court was perfectly justified in holding  

that  when  it  was  the  desire  of  Yogini  Amma  to  grant  

easement right to the original plaintiff (since deceased) by  

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way of an implied grant, the right of the original plaintiff  

(since deceased) to have ‘B’ schedule property of the plaint  

as  a  pathway  could  not  have  been  taken  away.   In  

Annapurna  Dutta  vs.  Santosh  Kumar  Sett  &  Ors.  [AIR  

1937 Cal.661], B.K.Mukherjee, as His Lordship then was  

observed :

“There  could  be  no  implied  grant  where  the  easements  are  not  continuous  and  non-apparent.   Now a right of way is neither continuous nor always   an  apparent  easement,  and  hence  would  not  ordinarily come under the rule. Exception is no doubt  made in certain cases, where there is a ‘formed road’   existing  over  one  part  of  the  tenement  for  the   apparent  use  of  another  portion  or  there  is  ‘some  permanence in the adaptation of the tenement’ from  which continuity may be inferred, but barring these  exceptions, an ordinary right of way would not pass   on severance unless language is used by the grantor   to create a fresh easement.”    

26.In  our  view,  therefore,  the  High  Court  was  also  fully  

justified  in  holding  that  there  was  implied  grant  of  ‘B’  

schedule property as pathway, which can be inferred from  

the  circumstances  for  the  reason that  no  other  pathway  

was  provided  for  access  to  ‘A’  schedule  property  of  the  

plaint  and there  was no objection also  to  the  use  of  ‘B’  

schedule property of the plaint as pathway by the original  

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plaintiff (since deceased) at least up to 1982, when alone  

the cause of action for the suit arose.   

27.The learned counsel for the appellant raised an argument  

that  since  no  case  was  made  out  by  the  

plaintiffs/respondents  in  their  plaint  about  the  

easementary right over the ‘B’ Schedule Pathway by implied  

grant, no decree can be passed by the courts below basing  

their conclusion on implied grant. We have already noted  

the findings arrived at by the Trial Court, on consideration  

of  pleadings  and  evidence  on  record  on  the  right  of  

easement over ‘B’ Schedule pathway by implied grant. The  

Trial  Court  on consideration  of  the  evidence  of  both the  

parties recorded the finding that there was no evidence on  

record to show that either Yogini Amma or the defendants  

themselves until 1982 had objected to the plaintiff’s use of  

‘B’ schedule pathway to access ‘A’ schedule property. The  

Trial Court on consideration of the plaintiff’s evidence and  

when the defendant  had failed  to  produce  any evidence,  

had come to  the  conclusion  that  the  plaintiff  was  given  

right of easement by Yogini Amma as an easement of grant.  

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Considering this aspect of the matter, although there is no  

specific issue on the question of implied grant, but as the  

parties have understood their case and for the purpose of  

proving  and  contesting  implied  grant  had  adduced  

evidence, the Trial Court and the High Court had come to  

the  conclusion  that  the  plaintiff  had acquired a  right  of  

easement  in  respect  of  ‘B’  schedule  pathway  by  way  of  

implied  grant.  Such being  the  position,  we  are  not  in  a  

position  to  upset  the  findings  of  fact  arrived  at  by  the  

Courts below, in exercise of our powers under Article 136 of  

the Constitution of India. We also agree with the finding of  

the Trial Court that from the evidence and pleadings of the  

parties  ‘B’  schedule  pathway  was  given  to  the  

plaintiff/respondent as an easement of grant. It is true that  

the defendant/appellant alleged that no implied grant was  

pleaded in  the  plaint.  The Trial  Court,  in  our  view,  was  

justified in holding that such pleadings were not necessary  

when it did not make a difference to the finding arrived at  

with respect to the easement by way of grant. Accordingly,  

there  is  no  substance  in  the  argument  raised  by  the  

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learned senior counsel for the appellants.

28.Since we have accepted the findings of the High Court as  

well as of the trial court on the question of implied grant, it  

would not be necessary for us to deal with the decisions on  

the  easement  of  necessity  which  necessarily  involves  an  

absolute necessity. If there exists any other way, there can  

be no easement of necessity. Therefore, the decision of this  

Court  in  Justiniano  Antao  &  Ors.  vs.  Smt.  Bernadette  

B.Pereira [2005 (1)  SCC 471]  is  clearly  not applicable  in  

view of our discussions made herein above. Similarly two  

other  decisions  referred  to  by  the  High  Court  in  the  

impugned judgment need not be discussed because these  

decisions  were  rendered  on  the  question  of  easement  of  

necessity.  

29.Such being the state of affairs and such being the findings  

accepted  by  the  High  Court  in  second  appeal,  it  is  not  

possible for this Court to interfere with such findings of fact  

arrived at by the High Court which affirmed the findings of  

the Courts below. No other point was raised by the learned  

senior counsel for the appellants.

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30.In view of  our discussions made hereinabove,  we do not  

find  any  merit  in  this  appeal.   The  appeal  is  thus  

dismissed.  There will be no order as to costs.

…….…………………J.      [Tarun Chatterjee]

New Delhi;           ……………………………J. January 05, 2010                         [V.S.Sirpurkar]  

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