w w w . L a w y e r S e r v i c e s . i n



M/S. Ramapriya Hotel (P) Ltd. & Another v/s The Trivandrum Specialists Hospitals Private Limited, Pattom Thiruvananthapuram Represented By Its Managing Director Dr. C. Bharathchandran


Company & Directors' Information:- S V S HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TG2007PTC052534

Company & Directors' Information:- D D HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN2009PTC073765

Company & Directors' Information:- A AND E HOSPITALS PRIVATE LIMITED [Active] CIN = U85110KL2003PTC016562

Company & Directors' Information:- R R HOSPITALS PRIVATE LIMITED [Active] CIN = U85100HR2011PTC042705

Company & Directors' Information:- K P S HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TZ1994PTC004918

Company & Directors' Information:- B R S HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN1988PTC016237

Company & Directors' Information:- V H M HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN2009PTC073497

Company & Directors' Information:- TRIVANDRUM HOSPITALS PRIVATE LIMITED [Active] CIN = U85200KL2017PTC049151

Company & Directors' Information:- D B R HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TG2003PTC041648

Company & Directors' Information:- S M R HOSPITALS PVT LTD [Strike Off] CIN = U85110DL2005PTC143152

Company & Directors' Information:- M S R HOSPITALS PRIVATE LIMITED [Active] CIN = U85110AP1994PTC017731

Company & Directors' Information:- M M HOSPITALS PRIVATE LIMITED [Under Process of Striking Off] CIN = U85110UP1993PTC015371

Company & Directors' Information:- K C HOSPITALS PRIVATE LIMITED [Strike Off] CIN = U85110PB2012PTC035880

Company & Directors' Information:- B M HOSPITALS PRIVATE LIMITED [Active] CIN = U85110TN2005PTC058062

Company & Directors' Information:- S A HOSPITALS LIMITED [Strike Off] CIN = U85110MH2002PLC136697

Company & Directors' Information:- M. B. HOSPITALS PRIVATE LIMITED [Active] CIN = U85100HR2010PTC041489

Company & Directors' Information:- M G M I HOSPITALS (INDIA) PRIVATE LIMITED [Active] CIN = U85195KA2010PTC052058

Company & Directors' Information:- M AND D HOSPITALS PRIVATE LIMITED [Active] CIN = U85110DL2002PTC117618

Company & Directors' Information:- M. R. HOSPITALS PRIVATE LIMITED [Strike Off] CIN = U85110UP1995PTC018165

Company & Directors' Information:- S P HOSPITALS PVT LTD [Strike Off] CIN = U85110HP1992PTC012651

Company & Directors' Information:- V K R HOSPITALS PRIVATE LIMITED [Strike Off] CIN = U85110TG2011PTC075009

Company & Directors' Information:- V P HOSPITALS PRIVATE LIMITED [Active] CIN = U85110DL2011PTC220548

Company & Directors' Information:- G S HOSPITALS PRIVATE LIMITED [Active] CIN = U85100AP2014PTC094902

    RSA.NO. 412 OF 2005 (G)

    Decided On, 28 March 2012

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE THOMAS P. JOSEPH

    For the Petitioners: P.R. Venketesh, P.B. Krishnan, P.B. Subramanyan, Advocates. For the Respondent: P.A. Ahammed, George Zachariah Eruthickel, Thoufeek Ahamed, D. Somasundaram, Advocates.



Judgment Text

Thomas P. Joseph, J.

1. Heard. The appeal is admitted on the following substantial question of law:

"Whether in a case where the document granting a right of easement does not specifically mention alignment of the way over which the grant is created, use of another way belonging to the servient owner temporarily with permission of the servient owner would fasten the agreement as per the document on that way".

2. There was an agreement between the first appellant- original defendant and respondent-plaintiff, a Company to lease out the land belonging to the first appellant to facilitate respondent running a specialised hospital. Accordingly Ext.A3, agreement dated 05.04.1986 was executed between the first appellant and the respondent whereby the first appellant agreed to lease out 4 acres belonging to it to the respondent in two phases. That was followed by Ext.A1, lease deed dated 15.01.1987 executed by the first appellant in favour of the respondent regarding plaint A schedule - 2 acres for a period of 150 years. Exhibit A1, lease deed provided, though in the schedule describing the property leased that respondent will have a right for vehicular traffic from the main road on the north to the two acres leased as per Ext.A1 (admittedly, plaint A schedule). Following Ext.A1, the existing structure in plaint A schedule was modified and additions were made where respondent started the Shree Uthradam Tirunal Hospital (for short, "the SUT Hospital"). While so, respondent sent Ext.A4, letter dated 05.06.1987 to the local authority seeking a no objection certificate to put up structures in the property of first appellant to be leased (in the second phase). That was replied by the local authority as per Ext.A6, dated 18.06.1987 refusing to grant no objection certificate. For whatever reason it be, the second phase of lease was not gone through and respondent had to be satisfied with plaint A schedule covered by Ext.A1, lease deed dated 15.01.1987. In the year, 1989 respondent filed O.S. 2810 of 1989 in the first Additional Munsiff's Court, Thiruvananthapuram for declaration of its right to have vehicular traffic and other modes of transportation through plaint B schedule road for access to the SUT Hospital in plaint A schedule and for a decree for prohibitory injunction to restrain the first appellant from interfering with the possession, enjoyment and use of plaint B schedule.

3. First appellant-original defendant resisted the suit on various grounds including that there is no proper description of the way in the plaint and that neither Ext.A3, nor Ext,A1, contain a description or location of the way over which right was granted as per Ext.A1 and that the description about the way being vague, no right as claimed by the respondent is available over plaint B schedule.

4. Trial court accepted the case of respondent and granted a decree in its favour. That was confirmed by the first appellate court. Hence this Second Appeal.

5. During the pendency of this appeal, the servient tenement was purchased by the second appellant which got itself impleaded as additional second appellant as per order on I.A. No.1514 of 2011 producing a copy of the assignment deed in its favour.

6. Learned counsel for appellants contended that in so far as there is no proper description or alignment of the way either in Exts.A3, and A1 or in the plaint or in Ext.C1, report submitted by the Advocate Commissioner, a blanket decree as granted by the trial court and confirmed by the first appellate court should not have been granted. Learned counsel pointed out that there is no mention of the length or width of the way either in Exts.A3 and A1, plaint schedule or even in Ext.C1, report and the sketch accompanying it. Hence a decree with respect to a vague way cannot be granted. It is contended that in so far as Exts.A3 or A1 does not provide alignment of the way referred therein, it is open to the appellants to request that a mode which is least onerous to them in the matter of exercise the right of easement has to be adopted. According to the learned counsel, causing least inconvenience to the appellants it is possible to provide an alternative way to the respondent. Learned counsel has drawn my attention to Section 22 of the Indian Easements Act, 1882 (for shot, "the Act") and the commentaries to the said provision in B.B.Katiyar's Law of Easements and Licences. It is argued that the mere fact that respondent was permitted to use temporarily, the way reported by the Commissioner in Ext.C1 as a matter of convenience cannot mean that the right granted by Ext.A3 and A1 has to be fastened to the said way.

7. Learned counsel for respondent would contend that though there is no specification or alignment of the way in Ext.A3 or Ext.A1, it is clear from the facts and circumstances and even the averments in the written statement of first appellant that right was granted as per Ext.A3 and following that, by Ext.A1 over the way which then existed and provided access from the public road on the north to the plaint A schedule. It is contended by the learned counsel that at the time Exts.A3 and A1, respectively were executed, there was only one way passing through the property of first appellant, plaint B schedule and hence it is clear that what the parties intended by Ext.A3 followed by Ext.A1, is that right is granted over the said way. It is argued that the width of the way is given by the Advocate Commissioner in the report submitted in this Court as per order of this Court. So far as length of the pathway is concerned, it is argued that non-mention of that in Ext.A1, plaint or Ext.C1 is of no consequence since both the termini of the way are available; starting from the public road on the north and ending in plaint A schedule.

8. Section 22 of the Act relied on by the learned counsel for appellant states that the dominant owner must exercise his right in a mode which is least onerous to the servient owner; and when the exercise of an easement can, without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined. It is not disputed before me that the said provision would apply in the matter of easement by grant also provided the way had not been determined.

9. The Commentaries to the said provision in B.B. Katiyar on Law of Easements and Licences states that the provision contains a very important rule of guidance and its corollary, namely, that the dominant owner must exercise his right of easement in a mode least onerous to the servient owner and for that purpose if the exercise of the right is capable of being confined to a determinate part of the servient heritage without detriment to the dominant owner and if the servient owner requests for such confinement, it should be so confined. That however, does not entitle the servient owner to use the servient heritage in such a manner as to render the exercise of the easement impossible or more difficult for the dominant owner. While the servient owner is entitled to make any use he chooses of the premises provided he does not in any way interfere with the enjoyment by the dominant owner of his right of way within reasonable limits, the dominant owner entitled to the right of way cannot make an excessive user of the right, much less can he act arbitrarily and in a highhanded manner so as to render the beneficial enjoyment by a servient owner of his own premises impossible or fraught with many difficulties. It is further stated by Katiyar that Sec.22 though couched in general terms is chiefly applicable to easements of way. Where a plaintiff claims a right of way even though by prescription he is under no obligation to claim a demarcated path. All that he needs to do is to establish the two termini, i.e., to say the points of ingress and egress. Once he has done that, the servient owner would be at liberty to demarcate a path and ask the dominant owner to restrict himself to its user. But if the servient owner does not make the necessary demarcation between the two termini, the dominant owner will have to choose the nearest route between the two termini. The rule proceeds upon the ground that an easement, in restricting the ordinary rights of property, imposes a burden upon the servient tenement and such burden shall be made as light as possible consistently with the proper and necessary enjoyment of the easement. What mode of exercise of the right is the least onerous in a particular case, is a question of fact to be determined from the nature and circumstances of each case.

10. Whitely Stokes, in "Anglo Indian Codes, Vol.I" at page 884 states that the law does not favour restrictions on rights of property and that easement being a restriction on rights of property, has to be exercised in a manner least onerous to the servient owner. The law permits the servient owner to confine the exercise of such right to a determinate part of the servient tenement when it is possible to do so without detriment to the dominant owner. That is the spirit underlying Sec.22 of the Act. It rests on the principle of unreasonableness in the claim of easement.

11. Section 22 of the Act however, carries with it its own limitations and restrictions on the above stated right of the servient owner. One is that it has no application to cases where the right of way over the premises of servient owner has been ascertained by an express grant where a right of way is claimed on the basis of an express grant, question of unreasonableness of the right claimed does not arise.

12. Norman C.J., observed in Hamid Hossein v. Gervain ([1871] 15 W.R. 496):

"...We think it is clear that, if any person has a right of way from one place to another over a particular line, if he and his ancestors have been accustomed to use that way from a long time past, he has a right to go over it, and cannot be compelled to use a different and substituted way.."

Macleod C.J., pointed out in Dhundiraj Balkrishna Phalinkar v. Ramachandra Gangadhar Kale and Others (AIR 1922 Bombay 407):

"...I do not think that Sec.22 of the Indian Easements Act can assist the defendant. Its provisions can apply when the exact way to be taken over the premises of the servient owner has not been ascertained. Whether the servient owner, when once the right of way has been defined, can substitute a new way is a question which does not seem to have been provided for by the Indian Easements Act ..... No doubt the general rule is that a right of way once defined cannot be altered ....... and the dominant owner is entitled to exercise his strict right unless he can be induced to consent to a deviation.."

Coyajee, J., while concurring with the above stand of Macleod C.J., referred to the observations made by Norman C.J., (quoted above).

13. The High Court of Madras in Venkatarama v. Rangaswamy (AIR [30] 1943 Madras 741) has taken the view that Sec.22 of the Act has no application to cases where the way over the premises of the servient owner has been ascertained by an express grant and that in such a case the owner of servient tenement cannot substitute a new pathway for the old one and ask the dominant owner to take the substituted pathway. Devraj Hira and Others v. Karson Norman (AIR 1953 Kutch 33) says that where a right of way is claimed on the basis of an express grant the question of unreasonableness of the right claimed does not arise and that in such cases, that the dominant owner can make use of another way which is equally convenient is no answer to a claim based on express grant. In Deacon v. The South Eastern Railway Company ([1889] 61 L.T. 377) it is held that in such circumstances the dominant owner is entitled to exercise his strict right unless he can be induced to consent to a deviation. The upshot of the above discussion is that Sec.22 of the Act can apply only when there is no determined pathway over the servient tenement.

14. In Ext.A3, agreement for lease in the description of property it is stated that the property to be leased is with access to the main road. In Ext.A1, lease deed in the description of property it is stated that what is leased out is 2 acres equivalent to 80 Ares of land comprised in Sy. No.1759 including all buildings, houses , etc., situated therein and which is "more clearly delineated as A plot in the the plan attached herewith with right for vehicular traffic from the main road on the northern side".

15. Neither in Ext.A3 nor in A1, specifications of the way is given. Nor does Ext.A3 or Ext.A1 give the width of the way. Though a plan is attached to Ext.A1, it is admitted by both sides that in the said plan also the way over which respondent is given right of access including vehicular traffic is not specifically demarcated. At the same time, notwithstanding the above it is not in dispute that a right of access was given to the respondent as per Exts.A3 and A1.

16. Was there a way in existence at the time Exts.A3 and A1 respectively were executed and through which right of access was granted to the respondent? Or, was it that respondent was permitted to use a way temporarily? If it is the former, then, notwithstanding specific alignment or location of that way in Exts.A3 and A1, I must hold that the right granted by Exts.A3 and A1 is concerning the said way, in which case Sec.22 of the Act has no application. If it is the latter, a mere, permissive, temporary user of a way cannot relate to the grant referred in Exts.A3 and A1, and in that case Sec.22 can come into operation.

17. It is pointed out by the learned counsel for respondent that in the plaint A schedule, originally a hotel by name 'Thara Hotel' was functioning, pursuant to Ext.A1, lease deed the said Hotel was closed and in the building used by the Hotel with necessary additions and alterations the SUT Hospital was started. The contention is prohibited by the description of property in Ext.A1, lease deed as "including all buildings, houses, etc". It is not very much in dispute that the SUT Hospital started functioning in the year 1987. The suit was filed in the year, 1989. Indisputably therefore, the SUT Hospital was functioning from 1987 until 1989 when dispute regarding the way started.

18. In paragraph 3 of the plaint, respondent has stated that while Ext.A1, lease deed was executed, right for vehicular traffic was also granted to the respondent from the main road on the north upto the plaint A schedule (situated on the south) and accordingly the then existing dilapidated road was repaired and tarred by the respondent. Respondent is maintaining the said road for access to the SUIT Hospital complex situated in plaint A schedule. That road is described in the plaint B schedule.

19. It is relevant to note the averments in paragraph 5 of the written statement of the first appellant which is as under: There, there is a denial of the averments in paragraphs 3 and 4 of the plaint. It is stated that the description of plaint B schedule is vague, incapable of ascertainment and no injunction could be granted concerning that property. It is contended that there were two private roads within the whole property of 4.53 acres (referred in Ext.A3, agreement for lease), one which was meant for the Pattom Palace, lying along north-western boundary of the 4.53 acres described in Ext.A3, agreement dated 05.04.1986 giving access to the Palace from the main road on northern side. The second road runs southwards approximately through the centre of the plot marked 'B' in the plan appended to Ext.A1, lease deed. The said road was the original staff/servants entrance and the same provided access to the office, nalukettu, kitchens, out houses, etc. The original nalukettu is the Guest House of Ramapriya Hotels where the Chairman of the Company was residing with family. The said second road is not however marked out in the plan annexed to Ext.A1.

20. Thus as per averments in paragraph 5 of the written statement, at the time Ext.A1, lease deed dated 15.01.1987 was executed concerning plaint A schedule, there were two roads in existence; one (which I am told, is a public road) meant for Pattom Palace and the other referred to as running through the middle of plot 'B' marked in the plan annexed to Ext.A1, lease deed dated 15.01.1987. That means, excluding the public road leading to the Pattom Palace there was only one road in existence leading to the plaint A schedule and running through the property of first appellant that being used by Thara Hotels which was functioning in the building which existed in the plaint A schedule and where, the SUT Hospital started functioning.

21. When interpreting Ext.A1, I must bear in mind the above factual situation. Immediately after Ext.A1 dated 15.01.1987 and before Ext.A4, dated 05.06.1987, the SUT Hospital had started functioning in the building in plaint A schedule. There was access from the public road on north to the Thara Hotels situated in plaint A schedule which later gave way to the SUT Hospital. Reason persuades me to think that obviously before Ext.A1 and certainly after Ext.A3, the only road which was in existence for access to the plaint A schedule was through the property of first appellant and referred to as plaint B schedule and through which a right of access with vehicular traffic (which are essential for a hospital) was expressly granted as per Exts.A3 and A1, respectively. Hence reference to the right granted by the first appellant as per Exts.A3 and A1, respectively was in relation to plaint B schedule. The plea of permission to use that road temporarily, raised by the appellants cannot be accepted. It is also unlikely that while starting a hospital to remain there at least for 150 years (the period referred to in Ext.A1) parties thought of and at any rate, respondent agreed for a temporary way for access and vehicular traffic to and from the hospital.

22. It is relevant to note from Ext.C1, report of the Commissioner who inspected the property on 23.11.1989 that there was a well formed road (though its length and width are not stated) with neon lamp posts erected on either side with its switch boards installed in the Canteen of the SUT Hospital. Advocate Commissioner noticed a gate at the entrance point on its right side and carrying the name board of the SUT Hospital. To the Commissioner, the name board appeared to be very old. Appellants have no case, either that first appellant did the above works or that respondent did so, with its permission. The above works apparently done by the respondent indicate assertion of right granted to it as per Exts.A3 and A1, respectively. These circumstances also improbabilise version of appellants about plaint B schedule being a temporary way being used by the respondent with the permission of first appellant, the so-called permission being a Democles Sword hanging over the head of respondent which is to run the SUT Hospital for at least 150 years if it so wished.

23. Facts, evidence and circumstances eloquently probabilises version of respondent that the right granted as per Exts.A3 and A1 is concerning plaint B schedule which then was in existence. Though not specifically mentioned in Exts.A3 and A1, respectively, plaint B schedule as a well formed road was in existence at the time those agreements were executed and the parties to it had that road in mind while conferring right of access and vehicular traffic as per the said agreement. Hence the contention that there is no ascertained way and hence Sec.22 of the Act could be applied, cannot be sustained.

24. Now that Sec.22 of the Act has no application and appellants cannot ask the respondent, as of right to use the alternative way they suggest, appellants can, at the best induce the respondent to consent to the alternative way appellants have suggested and as Deacon v. The South Eastern Railway Company and Dhundiraj Balkrishna Phalinkar v. Ramachanda Gangadhar Kale and Others (supra) have pointed out.

25. To ascertain whether respondent could be so induced, the case was sent to the Mediation Centre. But for one reason or the other, parties were not able to come to terms. The inducement has thus failed.

26. Exhibits A3 and A1, respectively, plaint B schedule and even Ext.C1, report do not give any data of plaint B schedule way. Lack of description by length is not of any consequenc

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e since both the termini of the way are available – it starts from the public road on the north and ends in plaint A schedule. But the width of the way is also not given which cannot be brushed aside as inconsequential. There could be no blanket decree without ascertaining the width of the way. 27. That difficulty can be got over by making use of the report and sketch submitted by the Advocate Commissioner in this appeal. Though parties have not applied to receive the said report and sketch in evidence, the court is not powerless to admit the same in evidence invoking Rule 27(1)(b) of Order XLI of the Code of Civil Procedure since the Court finds that the said report and sketch are necessary and relevant for decision of the dispute involved. Hence the report and sketch submitted by Advocate Commissioner, Shri George Zachariah, Eruthical in this appeal are marked as Exts.C2 and C2(a). 28. In Ext.C2, the Advocate Commissioner has referred to the plaint B schedule and its width at different points. Exhibits C2(a) is the sketch of plaint B schedule with its width at various points. The Advocate Commissioner has stated that at the point where plaint B schedule originates from the public road on the north, there is the gate of the SUT Hospital (referred in Ext.C1, report also). Advocate Commissioner has also reported that at that point, width of the way is 3.75 metres. In the light of that report and sketch, relief prayed for by the respondent and granted by the courts has to be confined to the way marked by the Advocate Commissioner in Exts.C2 and C2(a) with the specifications mentioned therein. 29. Substantial question of law framed is answered as above. The Second Appeal is allowed in part to the extent that judgment and decree passed by the learned First Additional District Judge, Thiruvananthapuram in A.S. No.254 of 1994 and by the learned first additional Munsiff in O.S. No.2810 of 1989 granting declaration and injunction will stand confined to the way as marked by the Advocate Commissioner in Ext.C2(a). Exhibit C2(a) will form part of the decree of this Court. Parties are directed to bear their respective costs in this appeal. All pending Interlocutory Applications will stand dismissed.
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