1. The defeated plaintiff in a suit for injunction is the appellant in the present appeal has come up aggrieved by the concurrent findings rendered by the Principal Munsiff Court - I, Kozhikode in O.S. No. 312 of 2019 affirmed in A.S. No. 123 of 2023 by the District Court, Kozhikode.

2. Plaint ‘A’ schedule property was purchased by the plaintiff by Ext. A1 document in the year 2018. Plaint ‘B’ schedule consists of two items: item no. 1 in favour of the defendant and item no. 2 in favour of the predecessor of the defendant. ‘C’ schedule is the disputed item in the present appeal which consists of a 6 feet pathway having an extent of 0.80 cents. The property originally belonged to Thirumalakutty as per a Kanam Assignment Deed No. 1895/1931. After her death, the legal heirs partitioned the aforesaid property by a Partition Deed No. 2792/1981 dated 21.10.1981. Plaint ‘A’ schedule was set apart to the share of one Velayudhan. The said Velayudhan by Sale Deed No. 832/1988 sold the property to one Saleena Jose. She in turn, by a Sale Deed of the year 1996, sold an extent of 5.89 cents in favour of one Beena Rani. By a Sale Deed No. 439/2007, Saleena Jose had sold 7.56 cents in favour of one Sangeeth K. Menon and his wife. While so, Beena Rani sold the property in her possession in favour of the defendant as per Sale Deed No. 2977/2002. The extent of property sold to the defendant is 5.89 cents. In the said Deed, Beena Rani had conferred on the defendant the right to use the pathway in question. Thereafter, on 14.09.2018, the plaintiff purchased right, title and interest over A schedule property vested with Sangeeth K. Menon and his wife by Ext. A1 Sale Deed No. 2450/2018. In the meantime, it appears that the defendant had constructed two gates in the ‘C’ schedule property in order to regulate the entry of the persons into item no. 1 of ‘B’ schedule property. Insofar as item no. 2 is concerned, the defendant purchased it from another sharer which is not the subject matter of the dispute in the present case. It is an admitted case that the defendant had only a right to use ‘C’ schedule pathway for ingress and egress into his property. Since the defendant obstructed the plaintiff to access ‘C’ schedule in order to enter into the ‘A’ schedule property, the suit was instituted. In the suit, a specific case of easement by implied grant was set up. The plaintiff thus prayed for a decree of mandatory injunction directing the defendant to open the lock of the gate or removing the gate kept in locked condition and also consequential prohibitory injunction.

                  2.1.    The defendant resisted the suit by contending that the plaintiff has no right to use the ‘C’ schedule pathway. But, however, it was admitted that the defendant’s right over ‘C’ schedule pathway is only for ingress and egress. On behalf of the plaintiff, Exts. A1 to A13(a) documents were produced and PW1 was examined. On behalf of the defendant, Exts. B1 to B9 documents were produced and DW1, the defendant himself was examined. Ext. C1 is the report of the Advocate Commissioner, Ext. C1(a) is the plan and Ext. C1(b) is the photo with C.D.

                  2.2.    The Trial Court, on the basis of the oral and documentary evidence framed the following issues for consideration;

                  “1. Whether the plaintiff has got any right in the plaint C schedule property?

                  2. Whether the plaintiff is entitled to a decree for mandatory injunction as prayed for?

                  3. Whether the plaintiff is entitled to a decree for prohibitory injunction as prayed for?

                  4. Reliefs and costs?”

                  2.3. The Trial Court concluded that since the plaintiff failed to establish any right over the ‘C’ schedule pathway, the relief for injunction and the consequential prohibitory injunction cannot be granted.  In holding so, the Trial Court held that the suit for mandatory injunction is barred by limitation since it was filed beyond the period of 3 years. Aggrieved, the plaintiff preferred an appeal before the District Court, Kozhikode as A.S. No. 123 of 2023 which was dismissed by judgment dated 01.07.2024 and hence, the present second appeal.

3. On 20.06.2025, this Court admitted the appeal on the following substantial questions of law;

                  “1) Whether the trial court and the first appellate court are correct in rejecting the case of the plaintiff admittedly when the right of the 6 foot pathway vested with the assignor in Ext.A4 and A5 and she had given permission/license alone to use the said pathway by the defendant's predecessor-in-interest in Ext.A5

                  2) Can the defendant who is not the owner of the 6 foot pathway in plaint C schedule property and who is using the same only on a license or permission to use the same from it's right full owner grand or withdraw permission to use the said pathway to the predecessor interest of the plaintiff who obtained the adjoining plaint A schedule property of the original owner?

                  (3) Should not the assignment of the entire property by the owner retaining the right over the pathway which was used by her be considered as implied grant to use the pathway by the assignee?

                  (4) When the defendant has got no exclusive right and possession over plaint 'C' schedule pathway except a permissive user, can he obstruct the owner of the property on the side of the pathway from using the said pathway?

                  (5) Can it be construed that the 3 foot pathway provided in Ext. A2 partition deed is exclusively set apart to be used by the sharer of item No. 4 in the partition deed when the said 3 foot pathway is not set apart to her?”

4. In the meantime, although this Court granted an order of injunction restraining the respondent/defendant from obstructing the plaintiff’s/appellant’s right to access ‘C’ schedule pathway, the appellant filed I.A. No. 2 of 2025 seeking for action under Order 39 Rule 2A of the Code of Civil Procedure alleging that after filing of the appeal, the respondent had closed down the entire access to the plaint ‘A’ schedule property by constructing a compound wall throughout the length of ‘C’ schedule property. The said application was vehemently opposed by the learned Counsel for the respondent stating that the construction was completed prior to passing of the Order of injunction. Faced with this situation, the appellant took out an Advocate Commissioner from this Court in order to ascertain the present construction.  The Advocate Commissioner visited the property on 12.12.2025 and filed a detailed report and concluded that the entire entry to ‘A’ scheduled property is completely blocked by walls on all sides. The report and sketch submitted by the Advocate Commissioner is taken on record.

5. When this Court was inclined to initiate further proceedings against the respondent for violation of the Order of injunction, the learned Counsel for the respondent submitted that since there is no deliberate action on the part of the respondent in closing down the wall and that the construction was done prior to the filing of the appeal, let the appeal itself be considered so that the issue could be resolved.

6. Considering the request of the learned Counsel for the respondent, this Court felt that instead of entering into an elaborate question as to, whether the construction was made prior to the filing of the appeal or after the order of injunction was passed?, and in the peculiar situation where the respondent/defendant had deliberately blocked the entry of the appellant into the plaint ‘A’ schedule property this court decided to consider the appeal on merits.

7. Heard Sri. O. V. Maniprasad, the learned Counsel for the appellant and Sri. R. Bindu (Sasthamangalam), the learned Counsel appearing for the respondent.

8. Sri. O. V. Maniprasad, the learned Counsel appearing for the appellant, submitted that, the derivation of title as seen from the records would clearly indicate that the defendant derived only right to use the ‘C’ schedule pathway. No proprietary rights vested with him in order to claim absolute possession of the ‘C’ schedule property. It is further pointed out that the predecessor in interest namely, Saleena Jose sold plaint item no. 2 in ‘B’ schedule in favour of Beena Rani by Ext. A5 wherein it is specifically stated that she will only have right to access the plaint ‘C’ schedule property through the pathway in question. The said right was again transferred by Beena Rani by Ext. A7 in favour of the defendant. That be so, no absolute right to be claimed by the defendant. This fact is further admitted by the defendant while he was cross examined. Extensively, relying on the oral testimony of DW1, the learned Counsel contended that the act of the defendant in closing down the entry into ‘C’ schedule property is nothing but illegal. Still further it is submitted that the courts below failed miserably to make out a case for easement by implied grant especially since the plaintiff’s vendor, Saleena Jose was using the C schedule way when the dominant heritage was used by her.

9. Per contra, Sri. R. Bindu (Sasthamangalam), the learned Counsel  appearing  for  the  respondent/defendant  countered  the submissions of Sri. O. V. Maniprasad, the learned Counsel for the appellant/plaintiff and contended that even going by the transfer in favour of Sangeeth K. Menon, by Saleena Jose which is evident from Ext. A4, the predecessor of the plaintiff, was not granted any right to use the ‘C’ schedule pathway. It was only a permissive grant by the defendant in favour of the predecessor of the plaintiff. That be so, when the predecessor transferred the right, title and interest over the plaint ‘A’ schedule in favour of the plaintiff, no implied grant could be made out from the said document. Moreover, the nature of right claimed by the appellant/plaintiff is not clear from the reading of the averments in the plaint. Further, the relief of mandatory injunction is barred by limitation inasmuch as it is admitted that, while the husband of the plaintiff was examined as PW1 that the gate in question was installed in the year 2011. If that be so, the suit is barred by limitation. The concurrent findings recorded by the Courts below does not call for any interference in exercise of the powers under Section 100 of the Code of Civil Procedure. Thus, the learned Counsel for the respondent/defendant prayed for the dismissal of the appeal.

                  9.1. The learned Counsel for the respondent further objected to the report filed by the Advocate Commissioner on 15.12.2025 by stating that the report is not clear to evidence the fact that construction was made after 20.06.2025 when this Court interdicted the respondent from obstructing the right of the way into the plaint ‘A’ schedule property through plaint ‘C’ schedule property. Therefore, according to the learned Counsel for the respondent, the proceedings sought to be initiated against his client are only vexatious.

10. I have considered the rival submissions raised across the Bar, perused the judgments rendered by the Courts below and also the records of the case.

11. The indisputable fact which emerges from the two reports of the Advocate Commissioner, one taken out before the Trial Court and one taken out before this Court is that except ‘C’ schedule property, there is no other entry into plaint ‘A’ schedule. Though the learned Counsel for the respondent has a case that the entry into the plaint ‘A’ schedule property is from the southern side directly through the Corporation Road, the evidence adduced by the parties does not showcase such an entry. A perusal of Ext. C1 report and also C1(a) plan specifically shows that the original entry into the plaint ‘A’ schedule property is through the ‘C’ schedule pathway. Though the defendant had brought a case that the said entry for the predecessor of the plaintiff is only permissive, nothing is brought on record to evidence the said fact.

12. The larger question before this Court is, in the absence of any proprietary right granted in favour of the defendant by virtue of Ext. A7 Deed, whether it is open for him to have closed down the ‘C’ schedule property by blocking the entire entry into the plaint ‘A’ schedule? In this case, the construction of Exts. A5 and A7 documents will show that the defendant is not granted any absolute right over plaint ‘C’ schedule pathway whereas he has been granted only a right of access into his property through plaint ‘C’ schedule. That be so, the attempt made by the defendant to close down the ‘C’ schedule property by installing two gates and also constructing the compound wall to the entire length of ‘C’ schedule property is only an attempt to annex the ‘C’ schedule property towards item nos. 1 and 2 of ‘B’ schedule is highly impertinent.

13. Next it is contended that, no case for easement is made out in the present case. The learned Counsel for the respondent/defendant asserted before this court that since the previous vendor of the plaintiff namely Sangeeth K. Menon and his wife did not have any right over ‘C’ schedule pathway, no right flowed into the hands of the plaintiff. Thus, it is the specific case of the respondent that once Saleena Jose, the prior vendor sold her entire right over the property and in the absence of any specific recital in Ext. A4 or thereafter in Ext. A1 document regarding the right to use the way, the plaintiff cannot succeed.

14. On an anxious consideration of the above submission, this court is of the view that the said argument must fail for multiple reasons. It is beyond cavil that under Ext A5, Saleena Jose had sold only 5.89 cents in favour of one Beena Rani from whom the respondent purchased the property. It is also indisputable that what is conferred on Beena Rani is only right to use the ‘C’ schedule. Therefore, what Beena Rani derived alone can be conferred by her to the defendant. This is what has been done in the present case.

15. Pertinently, when Saleena Jose retained the balance extent of property after the sale of 5.89 cents in favour of Beena Rani she had the absolute right to use the pathway for the enjoyment of the dominant heritage. Therefore, once the dominant heritage is sold, all proprietary rights over the property including the right to use the pathway passes to the transferee.

16. Section 19 of the Indian Easements Act, 1882 provides the answer to the question that is posed above. Section 19 of the Indian Easements Act, 1882 reads as under;

                  “19. Transfer of dominant heritage

passes easement.—Where the dominant heritage is transferred or devolves, by act of parties or by operation of law, the transfer or devolution shall, unless a contrary intention appears, be deemed to pass the easement to the person in whose favour the transfer or devolution takes place.

                  Illustration

                  A has certain land to which a right of way is annexed. A lets the land to B for twenty years. The right of way vests in B and his legal representative so long as the lease continues.”

17. The illustration shown under Section 19 of the Indian Easements Act, 1882 simplifies the issue in this case. It is difficult to envisage a situation where the property covered by Ext. A1 Deed in favour of the plaintiff was intended to remain as landlocked. It must be remembered that the defendant had no case that when the predecessor of the plaintiff purchased the property from Saleena Jose by Ext. A4 document, they were having any other entry to the property other than ‘C’ schedule pathway. In fact the report of the advocate commissioner before the trial court as well as appointed by this court unequivocally proves the fact that entry into the plaint A schedule property is through plaint ‘C’ schedule pathway and at present it is blocked.

18. It is surprising to note that despite a limited interest being granted to the defendant under Ext. A7 document to use plaint C schedule pathway, an attempt is made to annex the property as his own. Such an impertinent stand must be clearly deprecated.

19. In Sree Swayam Prakash Ashramam and another Vs. G. Anandavally Amma and others [(2010) 2 SCC 689], the Supreme Court had occasion to consider a similar issue. The question that arose before the Supreme Court is i) whether a case for easement of grant by implication can be raised? ii) even if there are no pleadings in the plaint regarding easement by grant by implication, can such a question be decided? Answering the two questions in affirmative, it was held that merely because the settlement deed( in that case) did not mention the right to use the way, that by itself will not mean that a grant by implication is not made out. It was further held that even in the absence of any issue regarding the same, if the defendant is not able to show that plaintiff was using any other way it is difficult to negate such contention. Paragraph Nos. 23 to 29 of the aforesaid judgment reads as under;

                  “23. We have heard Mr. T.L. Viswanath 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.

                  24. 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).

                  25. 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).

                  26. 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.

                  27. 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.

28. In Annapurna Dutta vs. Santosh Kumar Sett & Ors. [AIR 1937 Cal.661], B.K.Mukherjee, as His Lordship then was observed (AIR p.663):

                  "…………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 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 continuity may be inferred, but barring these exceptions, an ordinary right of way would not pass on severance unless language is used by the grantor to create a fresh easement."

                  29. 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 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 for the suit arose.”

20. It is worthwhile to note that the Ext. A4 Sale Deed executed by Saleena Jose in favour of Sangeeth K. Menon is generic in nature. But at the same time, it is indisputable that Saleena Jose had full rights over the 6 feet pathway. It is also clear that only a limited interest is created over the plaint ‘C’ schedule property in favour of the defendant. Unless a contrary intention is expressed in the deed executed in favour of the predecessor of the plaintiff (Ext. A4) and in favour of the plaintiff in Ext. A1, it is difficult to hold that the plaintiff did not get any right to use the pathway in question. Thus, it is a clear case of implied grant. Coupled with the statutory right vested on the plaintiff under Section 19 of the Indian Easements Act, 1882, this Court is inclined to hold that the contention of the contrary is only to be discarded.

21. The next question to be considered is, whether the suit is barred by limitation? The learned Counsel for the respondent vehemently pointed out that the suit is barred by limitation because in order to institute the suit for mandatory injunction, the suit ought to have been filed within three years from the date of the cause of action and that in the present case, the gate was installed in the year 2011. The aforesaid argument is clearly fallacious inasmuch as it fails to address the issue of continuing cause of action. It is true that a suit for mandatory injunction must be lodged within 3 years from the date of accrual of the cause of action. But Section 22 of the Limitation Act 1963 speaks of a fresh period of limitation as long the breach continues. Still further, the plaintiff purchased the property in the year 2018 only. The suit is instituted in the year 2019. Therefore this Court fails to comprehend as to how the Courts below could have dismissed the suit as barred by limitation.

22. Still further, it has come out in evidence that though the defendant had installed the gate, it was not closed down on all occasions. Therefore, this Court is inclined to conclude that so long as the cause of action for the defendant is continuing, the findings of the Trial Court as regards the suit being barred by limitation cannot be accepted. Moreover, the unilateral act of the defendant in closing down the entire ‘C’ schedule property where he has no proprietary right, leads to an irresistible conclusion that the act of the defendant is unlawful. That apart, the report of the Advocate Commissioner appointed by this Court makes it abundantly clear that the entire entry into the plaint ‘A’ schedule property is closed by virtue of the construction now being made. The argument of the learned Counsel for the respondent that the entry of the plaintiff is directly from the southern side of the property towards the Corporation Road also does not impress this Court because a reading of Ext. A1 document would clearly show the existence of ‘C’ schedule pathway towards the eastern boundary. Moreover, it has come out in evidence that the extent of the pathway which is in question which comes to 6 feet when translated into cents will come to 0.80 cents. The defendant had clearly admitted that he does not have any right, title and interest over the pathway. That be so, the appellant/plaintiff is entitled to succeed.

23. Lastly it is contended that by the learned Counsel for the respondent that the nature of right of the appellant over ‘C’ schedule property is not clearly spelled out in the plaint and that the right is not supported by evidence. However, the said contention appears to be farfetched. A reading of the plaint clearly discloses the right which the plaintiff had claimed. In fact, the plaintiff has claimed a right of easement by implied grant. The entire sequence of events starting from the devolution of title in favour of Saleena Jose as evident from Ext. A3 and her transfer to Beena Rani by Ext. A5 and the further transfer by Beena Rani in favour of the defendant through Ext. A7 and also the sale of the remaining extent held by Saleena Jose by Ext. A4 in favour of Sangeeth K. Menon and his wife and thereafter, transferred to the plaintiff by Ext. A1 clearly establishes a case of implied grant in favour of the plaintiff. On the contrary, so long as Saleena Jose did not intend to transfer any subsisting right over ‘C’ schedule property, the same could have specifically found a mention in the document of title or the contrary could have been mentioned in Exts. A3, A5 and thereafter in Ext. A7. Only when the predecessor in interest of the plaintiff, namely Sangeeth K. Menon and his wife transferred the property in favour of the plaintiff, and the issues with the defendant started.

24. As an upshot of these discussions, this Court is inclined to answer the substantial questions of law in favour of the appellant as follows;

                  1)       In view of the fact that assignor in Exts. A4 and A5 had granted only a right to use the pathway to the defendant's predecessor, no absolute right and title flowed into the hands of the defendant.

                  2)       The defendant is not the owner of the 6 foot pathway in plaint ‘C’ schedule, since he has no right to obstruct the appellant/plaintiff from accessing the said pathway to enter into plaint ‘A’ schedule property.

                  3)       In the light of the fact that the assignment of the entire property by the owner retaining the right of pathway used by her would lead to a conclusion that there is an implied grant of use of the pathway by the assignee which is protected under Section 19 of the Indian Easements Act, 1882.

                  4)       When the defendant has no exclusive right and possession over plaint ‘C’ schedule except as a permissive owner, he cannot obstruct the right of the appellant from using the said pathway.

                  In view of the above discussions, this court finds that remaining substantial questions of law do not arise for consideration in the facts of the case. Accordingly, this appeal is allowed by reversing the judgment and decree in A.S. No. 123 of 2023 on the files of the District Court, Kozhikode and O.S. No. 312 of 2019 of the Principal Munsiff Court – I, Kozhikode. The dismissal of the suit by the Principal Munsiff Court – I, Kozhikode, will stand set aside and the suit, O.S. No. 312 of 2019 is decreed as follows:

                  A) The plaintiff is granted a decree of mandatory injunction directing the defendant to open the lock of the gate kept erected in the ‘C’ schedule property and not to keep the gate in the locked condition preventing the plaintiff from accessing ‘C’ Schedule property.

                  B) The plaintiff is also granted a perpetual prohibitory injunction restraining the defendant from obstructing or preventing the plaintiff’s entry into the ‘C’ schedule property for ingress and egress into the ‘A’ schedule property.

                  C) The appellant/plaintiff is granted a Mandatory injunction directing the defendant to demolish the compound wall constructed across the Plaint ‘C’ Schedule property to the extent of obstructing the entry to the plaintiff’s property as found by the Advocate Commissioner appointed by this court in her report (Ext. X1) dated 13.12.2025 , within two weeks from the date of receipt of the copy this judgment failing which the plaintiff is entitled to get the same done through the process of the Court and claim the expenses from the defendant.

                  D) Plaintiff is entitled to cost throughout the proceedings.