SREE SWAYAM PRAKASH ASHRAMAM AND ANR.versusG. ANANDAVALLY AMMA AND ORS.

                      [2010) 1 S.C.R. 271

    SREE SWAYAM PRAKASH ASHRAMAM AND ANR.                           A
                               v.
            G. ANANDAVALLY AMMA AND ORS.
                (Civil Appeal No. 7 of 2010)
                      JANUARY 05, 2010
                                                                    8
   [TARUN CHATIERJEE AND V.S. SIRPURKAR, JJ.]

     Indian Easements Act, 1882- s.13(b)- Easement rights
- Easement by grant - Suit for declaration of easement rights
over 'B' schedule property of the plaint as a pathway to 'A'        C
schedule property of the plaint - 'A' Schedule property had
been allotted to plaintiff in terms of a settlement deed - 'B'
Schedule pathway was situated within property under control
and use of defendants - Held: Grant can be by implication
as well- There was implied grant of 'B' schedule property as        D
pathway, which can be inferred for the reason that no other
pathway was provided to plaintiff for access to 'A' schedule
property and there was also no objection from defendants to
use of 'B' schedule property by plaintiff as pathway for number
of years, at least up to the time, when alone cause of action       E
for the suit arose - Plaintiff acquired right of easement in
respect of 'B' schedule pathway by way of implied grant.

      Constitution of India, 1950 - Art. 136 - Interference with
findings of facts arrived at by Courts below - Scope - Suit for
grant of easement rights - No specific isc;ue on question of        F
implied grant - But parties adduced evidence for purpose of
proving and contesting implied grant - Courts below found
that plaintiff had acquired right of easement by way of implied
grant - Held: In such circumstances, Supreme Court cannot
upset the findings of fact arrived at by Courts below in exercise   G
of its powers under Art. 136.

    Respondent-plaintiff file" suit for declaration of
easement rights by way of necessity or of grant over 'B'
                         271                                        H
    272      SUPREME COURT REPORTS               [2010] 1 S.C.R.


A schedule property of the plaint as a pathway to 'A'
  schedule property of the plaint.

       Both 'A' schedule and 'B' schedule properties of the
  plaint originally belonged to one 'Y', who was in
8 enjoyment and management of a vast extent of properties
  including plaint 'A' and 'B' schedule properties for benefit
  of the first defendant-Ashramam. After the death of 'Y',
  her disciples executed a settlement deed as per her
  directions whereby 'A' Schedule property of the plaint
  was allotted to the plaintiff. The 'B' Schedule pathway of
C the plaint was situated within the property under the
  control and the use of defendants.

       The trial court accepted the version of the plaintiff that
  apart from 'B' Schedule pathway, there was no alternate
D pathway leading to the 'A' schedule property and, that the
  plaintiff was entitled to easement right in respect of the
  'B' schedule pathway by implied grant as also by
  necessity, and decreed the suit. The First Appellate Court
  held that even assuming that the plaintiff had an
E alternative pathway as contended by the defendants, it
  did not extinguish the right of easement of grant in favour
  of the plaintiff, though the declaration granted on the
  ground of easement of necessity was not justified. Both
  courts concurrently found on appreciation of evidence
F that 'B' Schedule property was being used by the plaintiff-
  respondents for access to 'A' Schedule property even
  after construction of a building on 'A' Schedule property.
  Second appeal filed by defendants was dismissed by the
  High Court. Hence the present appeal.
G         Dismissing the appeal, the Court

       HELD: 1. The case of the defendants-appellants that
  since there was no mention in the deed of settlement
  enabling the use of 'B' schedule pathway for access to
H 'A' schedule property and the building therein, cannot be
    SREE SWAYAM PRAKASH ASHRAMAM v. G.               273
            ANANDAVALLY AMMA
 the reason to hold that there was no grant as the grant A
 could be by implication as well. The facts and
 circumstances of the case amply show that there was an
 implied grant in favour of the original plaintiff (since
deceased) relating to 'B' schedule property of the plaint
for its use as pathway to 'A' schedule property of the      a
 plaint in residential occupation of the original plaintiff
_(since deceased). In 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 C
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 yeai:_ 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 D
the plaint. The High Court was perfectly justified in
holding that when it was the desire of 'Y' to grant
easement right to the original plaintiff (since deceased)
by way of an implied grant, the right of the original
plaintiff (since deceased) to have 'B' schedule property E
of the plaint as a pathway could not have been taken
away. The High Court was 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 F
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 plaintiff (since
deceased) at least up to 1982, when alone the cause of
action for the suit arose. [Paras 25 and 26] [285-G-H; 286- G
A-E; 287-B-C]                                      .

    Annapurna Dutta v. Santosh Kumar Sett & Ors. AIR 1937
Cal.661, referred to.
                                                            H
    274    SUPREME COURT REPORTS               [2010] 1 S.C.R.


A        Katiyar's Law of Easement and Licences (12th edition),
    referred to.
        2. 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
8
  plaintiff was given right of easement bv 'Y' as an
  easement of grant. 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
C 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, this Court cannot upset the findings of fact
D arrived at by the Courts below, in exercise of its powers
  under Article 136 of the Constitution. It is true that the
  defendant-appellants alleged that no implied grant was
  pleaded in the plaint. However, the Trial Court was
  justified in holding that such pleadings were not
E 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 appellants. Since the findings of the High
  Court as well as of the trial court on the question of
F implied grant have been accepted, it would not be
  necessary to deal with the decisions on the easement of
  necessity which necessarily involves an absolute
  necessity. Such being the state of affairs and such being
  the findings accepted by the High Court in second
G 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. [Paras 27, 28
  and 29) [287-F-H; 288-A; 288-B-D; 288-F-G]
      Justiniano Antao & Ors. vs. Smt. Bernadette B.Pereira
H 2005 (1) SCC 471, held inapplicable.
     SREE SWAYAM PRAKASH ASHRAMAM v. G.                     275
             ANANDAVALLY AMMA
                      Case Law Reference:                           A

     AIR 1937 Cal. 661         referred to            Para 25

     2005 (1) sec 471          held inapplicable     Para 28

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7              B
of 2010.

    From the Judgment & Order dated 9.5.2006 of the High
Court of Kerala at Ernakulam in S.A. No. 198 of 2000 (F).

    T.L. Viswanatha Iyer, Subramonium Prasad for the                C
Appellants.

     P. Krishnamoorthy, M.T. George for the Respondents.

     The Judgment of the Court was delivered by
                                                                    D
     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           E
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.                 F

     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        G
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.
                                                                    H
    276      SUPREME COURT REPORTS                 (2010] 1 S.C.R.


A       5. The case that was made out by the plaintiff (since
  deceased), in his plaint was as follows: Plaint A and 8 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
8 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 directions of the deceased Yogini Amma. As
   per the settlement, the Schedule 'A' property of the plaint was
c 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,
0 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 pro~ided on the South Western portion of the
  'A' schedule property for ingress and egress to the same and
  '8' schedule property of the plaint which is a pathway extends
  up to the road on the West from the said gate. The said gate
E and 'B' schedule pathway are as old as the building in 'A'
  schedule property of the plaint. Other than '8' 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
  '8' schedule pathway of the plaint was granted to the original
F plaintiff (since deceased) as easement right by the said 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
G 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
H forcibly close down the pathway. Hence, he filed a suit for          1




                                                                       I
     SREE SWAYAM PRAKASH ASHRAMAM v. G.                        277
   ANANDAVALLY AMMA [TARUN CHATTERjEE, J.]
  declaration of easement of necessity or of grant and permanent        A
  injunction restraining the defendants from obstructing the 'B'
1
  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
                                                                        8
 defendant No.4 was only an inmate of the Ashramam.
 Defendant Nos. 1 to 4 entered appearance and filed a joint
 written statement praying for dismissal of the suit by making
 the following defence:

       The suit was not maintainable. The description of 'A'            C
  schedule and '8' 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          D
  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        E
 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 '8' schedule is meant as a pathway for ingress
 and egress to 'A' schedule property and that other than '8'            F
 schedule property there is no other means of direct or indirect
 access to 'A' 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,        G
 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              H
    278         SUPREME COURT REPORTS                 [2010] 1 S.C.R.


A   injunction prayed for. Therefore, the suit in the circumstances
    must be dismissed with costs to the defendants .

       . 7. The llnd Additional Munsif, Trivandrum, accordingly,
    framed the following issues which are as follows :
8          "(1) Is not the suit maintainable?

          (2)     Whether the plaint schedule description is correct?

          (3)     Is there any pathway as Plaint 8 schedule?
c         (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?
D
          (6)     Whether the injunction prayed for is allowed?

          (7)     Relief and costs."

       8. After the parties adduced evidence in support of their
E respective cases and after hearing the parties, the llnd
  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 :-

F      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
G 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 defendants could
H not lead any evidence to substantiate their claim that these
   SREE SWAYAM PRAKASH ASHRAMAM v. G.                       279
  ANANDAVALLY AMMA [TARUN CHATTERJEE, J.]

pathways provide access to 'A' schedule property. In a case A
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 B
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 c
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 plaintiffs
                                                                    0
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 also an easement of necessity. It is not
on record that either Yogini Amma, or the .defendants
themselves until 1982 had obstructed this use'~f pathway. There
is no reason to disbelieve tpe plaintiffs version that Yogini E
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 F
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    G
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      H
    280       SUPREME COURT REPORTS                  (2010] 1 S.C.R.

A interest in the Ashramam property in any manner. 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 llnd Additional
  Munsif, the defendants preferred an appeal before the lllrd
8
  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:

C         (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?
D       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' schedule
  property of the plaint and the property adjacent to it which is
E 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
F Court held that the claim of the plaintiff regarding the right of
  easement of necessity over the plaint '8' schedule pathway was
  not sustainable.
       13. On the question of easement by grant, the Appellate
G Court was of the opinion that the plaintiffs claim in that respect
  stood proved. The plaintiff had acquaintance and association
  with the Ashramam and_YQgini Amma from his childhood days
  as revealed from the oral and documentary evidence.
  Considering the location and nature of 'B' schedule pathway,
H the location of two pillars at its inception and the gate from
   SREE SWAYAM PRAKASH ASHRAMAM v. G.                        281
  ANANDAVALLY AMMA [TARUN CHATIERJEE, J.]

which it started, it could be seen that it had been in use by the A
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 Appe'llate Authority arrived at the
conclusion that the plaintiff had obtained right of easement of
grant from Yogini Amma over the 'B' schedule pathway. An B
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       c
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
                                                                      0
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.
                                                                      E
       14. It was further held that the apprehension of the plaintiff
on attempted obstruction of the 'B' schedule pathway was well-
founded and, therefore, the Trial Court was justified in granting
the relief of permanent injunction against the defendants.
                                                                     F
     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.
                                                                     G
    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        H
    282       SUPREME COURT REPORTS                   [201 OJ 1 S.C.R.

A         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
B         of easementary right and without restricting it to the right
          of footway, when the terms of the grant are not known?

          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?
c
         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
o   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
E and, therefore, the finding that there existed no easement of
  necessity in favour of the original plaintiff (since deceased)
  over·tfie '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
F act of the original plaintiff (since deceased) who sold that
  portion of the property to a third 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
G 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
H
    SREE SWAYAM PRAKASH ASHRAMAM v. G.                        283
  ANANDAVALLY AMMA [TARUN CHATTERJEE, J.]

said pathway for access to 'A' schedule property was an               A
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       B
(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).

     20. The High Court observed that the Courts below had            C
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.       D
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 o'f the 'B' schedule pathway for access to 'A' Schedule           E
prope1iy 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     F
to 'B' schedule property for its use as 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           G
with respect to "implication of grant of an easement." lt· 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              H
    284       SUPREME COURT REPORTS                  [2010) 1 S.C.R.


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: ;
B         "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
c         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. ..
D
          ... It is the intention of the granter 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
E
          can be implied. A description in a conveyance may
          connote an intention to create a right of easement. An
          easement may aris~ by implication, if the intention to grant
          can properly be inferregAlither from the terms of the grant
          or the circumstances".
F
       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'
G 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.
H Therefore, the right of the plaintiff to have 'B' schedule property
     SREE SWAYAM PRAKASH ASHRAMAM v. G.                          285
   ANANDAVALLY AMMA [TARUN CHATIERJEE, J.)

 as a pathway could not have been taken away by the very same            A
 deed. In fact, there was implied grant of 'B' schedule 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.                                  B

      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.
                                                                         c
        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.           D
  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         E
  construction of the building in 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 everi after its construction in the year
  1940. It is also not in dispute that the appellants were not able      F
  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          G
  of settlement enabling the use of 'B' schedule pathway for
  access to 'A' schepule 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
                                                                         H
  of Exhibit A 1, the settlement deed in the year 1982 by the
    286       SUPREME COURT REPORTS                 [2010) 1 S.C.R.


A 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 plaint for its
   use as pathway to 'A' schedule property of the plaint in
   residential occupation of the original plaintiff (since deceased).
B 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
c  (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'
0 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
E to the original plaintiff (since deceased) by 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
F 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
G         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
H         continuity may be inferred, but barring these exceptions,
     SREE SWAYAM PRAKASH ASHRAMAM v. G.                      287
   ANANDAVALLY AMMA [TARUN CHATIERJEE, J.]

     an ordinary right of way would not pass on severance            A
     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                  8
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 plaintiff (since
deceased) at least up to 1982, when alone the cause of action        C
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
                                                                     0
'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      E
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 plaintiffs use of 'B'
schedule pathway to access 'A' schedule property. The Trial
Court on consideration of the plaintiff's evidence and when the      F
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. 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      G
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    H
    288      SUPREME COURT REPORTS                 [2010] 1 S.C.R.


A 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.
B It is true that the defendanUappellant 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
c substance in the argument raised by the 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
D 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) sec 471] is clearly not applicable in view of our discussions
E 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.

F       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
G counsel for the appellants.

          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.

H   8.8.8.                                      Appeal dismissed.