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irinjakuda Bank Ltd. Vs. Irinjalakuda St. Mary's Church and Ors. (18.05.1962 - KERHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 143 of 1958
Judge
Reported inAIR1962Ker312
ActsEasements Act, 1882 - Sections 4 and 52; Evidence Act, 1872 - Sections 115
Appellantirinjakuda Bank Ltd.
Respondentirinjalakuda St. Mary's Church and Ors.
Appellant Advocate K.P. Abraham and; E.M. Jacob, Advs.
Respondent Advocate K.K. Mathew,; George Vadakkel and; N. Parameswara Menon
DispositionAppeal dismissed
Cases Referred and Hoare v. Meropolitan Board of Works
Excerpt:
- - the appellant failed in the two courts below and in support of this second appeal three contentions were pressed, first, that the respondent had made a grant to the appellant of a right of easement to maintain the inscription in fact, second, that the appellant had obtained a licence to do so which is not revocable and third, that the respondent is estopped by acquiescence from setting up a right to efface the inscription. on this ground alone the contention has to fail. on the contrary, there is good reason to think, that the inscription was intended to evidence the donation by the appellant and not to make a display for the purpose of advertisement......three contentions were pressed, first, that the respondent had made a grant to the appellant of a right of easement to maintain the inscription in fact, second, that the appellant had obtained a licence to do so which is not revocable and third, that the respondent is estopped by acquiescence from setting up a right to efface the inscription.2. the facts necessary to understand these conten- tions alone need be stated. the appellant constructed the edifice with an inscription containing its name and the date of erection being, 'erected by irinialakuda bank ltd. on november 29, 1936' in english and malayalam, which was accepted by the respondent. after some years,not long before the date of the institution of the suit,the respondent effaced the inscription and this furnished the cause of.....
Judgment:

S. Velu Pillai, J.

1. The suit which has led to this second appeal was by the appellant, a bank, for a mandatory injunction to the respondent, a church, to restore an inscription on a 'cupola' or edifice erected by the former on the courtyard of the latter and presented to it. The appellant failed in the two courts below and in support of this second appeal three contentions were pressed, first, that the respondent had made a grant to the appellant of a right of easement to maintain the inscription in fact, second, that the appellant had obtained a licence to do so which is not revocable and third, that the respondent is estopped by acquiescence from setting up a right to efface the inscription.

2. The facts necessary to understand these conten- tions alone need be stated. The appellant constructed the edifice with an inscription containing its name and the date of erection being, 'erected by Irinialakuda Bank Ltd. on November 29, 1936' in English and Malayalam, which was accepted by the respondent. After some years,not long before the date of the institution of the suit,the respondent effaced the inscription and this furnished the cause of action for the suit. The two courts have concurrently found against the plea of the appellant, that there was an undertaking by the respondent to retain the inscription for all time. This finding was challenged and I was taken through the evidence afforded, by Ext. C the resolution passed by the appellant sanctioning the construction of the edifice, by Ext. 1(a) the resolution of the respondent accepting the presentation, and by the deposition of P. W. 3, the vicar of the respondent at the material time. The resolutions do no more than refer to the inscription by way of description and no undertaking by the respondent to maintain it for all time could be spelled from them. Moreover, P. W. 3 has explained, that tha parties did not advert to their legal rights to maintain or to efface the inscription. In these circumstances HD exception can be taken in second appeal to the concurrent findings on the point.

3. It was then contended, that the right to maintain the inscription is in the nature of an easement, such as a 'right to place an advertisement on land or to place a signpost on a common' which is mentioned as an Instance of positive or affirmative or assertive easement by Katiar on Law of Easements and Licences, 1959 Edition, at page 52. It is also observed in Halsbury's Laws of England, Third Edition, Volume 12, page 613, paragraph 1332, that

'there may be an easement entitling the owner to erect and maintain on the soil of a common a signpost relating to his tavern, to affix and maintain a similar signboard on the wall.....to place advertisementboardings on another's land .....'

But the law is clear and positive, that in order to consti-ute an easement it is essential that there must be a jominant and a servient tenement. Quoting Lord Cairns, in Rangeley v. Midland Ry. (1868) 3 Ch. A 306 at pp. 310-311 and Lord Coleridge, C. J., in Hawkins v. Rutter, (1892) 1 QB 658 at p. 671, Gale on Easements, 13th Edition, page 7, sets out the following passages:

'There can be no easement properly so called unless there is both a servient and a dominant tenement. There can be no such thing, according to our law, or according to the civil law, as an easement in gross. An easement must be connected with a dominant tenement.'

Katiar observes thus at page 76:

'One of the essential features of an easement is that it should be associated with two tenements or heritages, namely, the dominant tenement to which the right of easement is appurtenant and the servient tenement, in or upon or over which the right is exercised and a corresponding burden or obligation is imposed. There can be no right of easement without a dominant tenement and a servient tenement ..... A right of easement is nota right in gross, but a right appurtenant to a dominant tenement. It is inseparably attached to it and cannot be dissociated from it.'

In Iswar Gopal Jew v. Globe Theatres Ltd., AIR 1947 Cal 200, the Calcutta High Court remarked:

'But a right for one person to advertise on land belonging to another person has been held to be the subject of an easement (vide Moody v. Steggles), (1379) 12 Ch. D. 261 and Hoare v. Meropolitan Board of Works; (1874) 9 QB 296 when the essentials of servient and dominant tenements are present and when the right isnecessary for the proper enjoyment and use of the latter in which event the right exists of an easement in favour of the dominant tenement to advertise on the servient tenement.'

In the present case the appellant was not able to point to any dominant tenement to which the right claimed by it as an easement can be deemed to be appurtenant. On this ground alone the contention has to fail. It may be observed, that the evidence does not disclose any grant to the appellant of the right to display its name on the edifice. It is unreasonable to hold, that a church would ever undertake such display within its precincts. On the contrary, there is good reason to think, that the inscription was Intended to evidence the donation by the appellant and not to make a display for the purpose of advertisement. This was also the allegation in the plaint. In any event, no grant to the appellant of a right to advertise by means of the inscription, could be presumed or inferred.

4. The second contention was founded upon Section 60(b) of the Indian Easements Act which says:

'A licence may be revoked by the grantor, unless-

* * * * * (b) the licensee, acting upon the licence, has executed a work of a permanent character and incurred expenses in the execution.'

The argument was, that in or by constructing the edifice with the inscription, the appellant had a licence to display its name which under the above Section is Irrevocable A licence is defined thus in Section 52 of the same Act:

'Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence.'

As remarked, it is difficult to hold, that a right to display or exhibit its name as such has been granted to the appellant. All that can be found is that upon the acceptance of the presentation of the edifice, it became the property of the respondent absolutely. The elements necessary to constitute a licence are wanting. The licence, if at all, was initially for the construction of the edifice, but that is different from a licence to display the name. For these reasons, I repel the second contention.

5. The third contention is palpably unsound. The retention of the inscription by the respondent so long, does not sound in any acquiescence of a right of the appellant as would debar the respondent from disputing it. There is no admission by the respondent either, of a right in the appellant to retain the inscription for all time to come. The contention based on estoppel by acquiescence has no foundation whatever in fact or in law.

The second appeal is groundless and is dismissedwith costs.


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