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Judgment
Thomas P. Joseph, J.—The following substantial questions of law are framed for a decision:
(i) Can a licensee of the property acquire right of easement over another property in view of Section 12 of the Indian Easements Act (for short, &
quot; the Act)?
(ii) Can an easement be acquired regarding the entire plaint schedule property of 14= cents in view of Sec. 17 of the Act?
In view of the subsequent developments stated by the appellants, the following substantial question of law is also framed for a decision:
(iii) Whether in view of the destruction of the dominant heritage, the right of easement by prescription has ceased to exist?
The Second Appeal arises from the judgment and decree of learned First Additional District Judge, Thrissur in A.S. No. 273 of 1999
confirming the judgment and decree of learned Sub Judge, Thrissur in O.S. No. 323 of 1994.
Respondents-plaintiffs, claiming to be tenants under one Varappan claimed right of easement by prescription over the plaint schedule property
for their access to the tenanted sheds. They alleged that the appellant who is the owner of the suit property is causing obstruction to the user of the
suit property as a way to their tenanted sheds from the Palakkad-Thrissur National Highway situated on the south of the suit property.
Notwithstanding the contentions raised by the appellant, the trial court granted a decree in favour of the respondents restraining the appellant
from causing obstruction to the respondents gaining access to the tenanted sheds through the suit property. That decree was confirmed by the first
appellate court in the appeal preferred by the appellant. Hence this Second Appeal.
Though this Court has framed substantial questions of law at the time when the appeal came up for admission, in view of the subsequent
development the appellant has pleaded, it is sufficient that I answer the substantial question of law framed this day as No. (iii).
The appellant has filed I.A. No. 2716 of 2012 for reception of additional evidence under Rule 27 of Order XLI of the Code of Civil Procedure.
In the affidavit in support of that application it is stated that subsequent to the filing of the Second Appeal the sheds which were occupied by the
respondents-plaintiffs collapsed and that respondents have vacated those sheds. In proof of that, the appellant has produced notice dated
27.06.2012 issued from the Corporation of Thrissur stating that the sheds referred to therein have been demolished and the same are exempted
from payment of building tax. It is asserted in the affidavit in support of I.A. No. 2716 of 2012 that the sheds referred to therein are the sheds
occupied by the respondents and for access to which they claimed easement by way of prescription over the suit property.
The learned counsel for respondents reported no instruction from the respondents. The respondents are not present.
It is within the power of the court to take note of subsequent developments. The sheds in question collapsed only after filing of the Second
Appeal. The document sought to be admitted in evidence as per I.A. No. 2716 of 2012 was issued only on 27.06.2012 and hence could not be
produced in the courts below. Hence I am inclined to allow I.A. No. 2716 of 2012. Annexure I document produced along with the application is
marked as Ext. B4.
It is revealed from the affidavit in support of I.A. No. 2716 of 2012 and Ext. B4 that the sheds occupied by the respondents as tenants under
Varappan have collapsed. The respondents have no claim over any portion of the property on which those sheds stood. They only claimed to be
tenants of the sheds under the said Varappan. Those sheds have collapsed. In other words, the dominant heritage for the enjoyment of which the
respondents claimed right of easement by prescription is destroyed. In that situation, Sec. 45 of the Act would come into operation. It follows that
right of easement by prescription claimed by the respondents and granted by the courts below has ceased to exist in view of the subsequent
development above stated.
Substantial question of law No. (iii) is answered as above. However, I make it clear that this judgment and decree will not stand in the way of
any claim being made by the owner of the property where the sheds stood for access to that property through the suit property. It is also made
clear that this judgment and decree concerns only the right claimed by the respondents over the suit property for access to the sheds which I said
have collapsed.
Resultantly, the Second Appeal is allowed as under:
(i) Judgment and decree of learned First Additional District Judge, Thrissur in A.S. No. 273 of 1999 and of learned Sub Judge, Thrissur in O.S.
No. 323 of 1994 are set aside.
(ii) O.S. No. 323 of 1994 is dismissed.
(iii) It is made clear that this decree will stand confined to the right claimed by the respondents over the suit property for access to the sheds in their
capacity as tenants under Varappan.
All pending Interlocutory Applications will stand dismissed.