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Vellachami Chetty Vs. Muthu Chetty and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1915Mad287; 25Ind.Cas.383
AppellantVellachami Chetty
RespondentMuthu Chetty and ors.
Excerpt:
easements act (v of 1882), section 38 - continuous easement--cestser of enjoyment--proof,--mere failure to repair servient tenement, whether sufficient. - .....such intermittent cultivation for water to flow through the channel at times of flood;(c) that the dominant owners did not do any act which made it impossible for them to enjoy the easement; and(d) that they did not abandon the easement though they might not have used it.2. we have heard nothing in the arguments which should induce us to hold that the lower appellate court committed any error of law (such as the misconstruction of any document or the basing of a finding on a total absence of evidence) in arriving at conclusions (a), (6) and (c). as regards the finding (d) it is argued that non-user by the dominant owners need not be accompanied by any positive act of theirs to indicate their abandonment of the easement, that section 38 of the easements act, explanation i, clause (6),.....
Judgment:

1. Both the lower Courts have found

(a) that the continuous easement in question in this suit did not cease to be enjoyed as such for an unbroken period of twenty years' by the plaintiff;

(b) that 'its enjoyment was' not 'obstructed by the servient owners' though the latter cultivated certain portions of the bed of the channel, it being possible notwithstanding such intermittent cultivation for water to flow through the channel at times of flood;

(c) that the dominant owners did not do any act which made it impossible for them to enjoy the easement; and

(d) that they did not abandon the easement though they might not have used it.

2. We have heard nothing in the arguments which should induce us to hold that the lower Appellate Court committed any error of law (such as the misconstruction of any document or the basing of a finding on a total absence of evidence) in arriving at conclusions (a), (6) and (c). As regards the finding (d) it is argued that non-user by the dominant owners need not be accompanied by any positive act of theirs to indicate their abandonment of the easement, that Section 38 of the Easements Act, Explanation I, Clause (6), shows that it will suffice if a permanent alteration is made in the dominant heritage of such a nature as to show that the dominant owner intended to cease to enjoy the easement in future', and that in this case such a permanent alteration has been made by reason of the neglect of the dominant owners to repair the channel bed and the culvert near the tank, though not by any positive act of theirs.

3. Even assuming that the permanent alteration of the nature referred to in Section 38 may be made by mere negligence and not by a positive act on the part of the dominant owners, it must be such as 'to show that the dominant owners intended to cease to enjoy' the easement in future. It would be very difficult to establish such intention by mere proof of negligence and the lower Appellate Court whose judgment shows that it was fully aware of such negligence on the plaintiff's part, has clearly found that no intention to abandon the easement has been established thereby. Further it found (as we stated already) that the alteration made by the negligence was not of such a character as to form a total obstruction to the enjoyment of the easement and if so, no such intention to abandon the easement could be inferred from such alteration.

4. This second appeal fails and is dismissed with costs. The memorandum of objections complains that some relief which is not even remotely referred to in the plaint and the right to which is not based. on any allegation of injury to be found in the plaint, has not been granted by the lower Courts. The plaintiffs (respondents) are not entitled to obtain any such relief, as no facts disclosing a cause of action for such relief were alleged in the plaint and we therefore, dismiss the memorandum of objections with costs.


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