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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 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 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 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' 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.

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 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 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.

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 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 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 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 :