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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Plantation-Tenants Not Approached The Land Tribunal are Ineligible for Plantation-Exemption-Orders from the Land Board
Acquisition of (Exempted) Plantation Property: Should the Govt. Pay Full Land Value to Land Owners?
Relevant provisions of Kerala Land Reforms Act in a Nutshell
Land Tenures, and History of Land Derivation, in Kerala
Should the Government Prove Title in Recovery Suits
‘Janmam’ Right is FREEHOLD Interest and ‘Estate’ in Constitution – By Royal Proclamation of 1899, The Travancore Sircar became Janmi of Poonjar Raja’s Land
Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
Title of the Government Property in India: Government is the Ultimate Owner of Every Property; Hence, Government Need Not Prove Title.
Glen Leven Estate v. State of Kerala: Not Correctly Decided?
Law on Acquisition of Private Plantation Land in Kerala
Plantation Exemption in Kerala Land Reforms Act–in a Nutshell
Kerala Land Reforms Act – Provisions on Plantation-Tenancy and Land-Tenancy
Grant in Law
Balanoor Plantations & Industries Ltd. v. State of Kerala – Based on the Principle: LT to fix Tenancy’; TLB to Fix Plantation Exemption.
1910 Settlement Register of Travancore – Basic Record of Land Matters
Do the Plantation-Tenants have the Right to Seek ‘Assignment’ of the Entire Plantation-Tenancy-Land (under Purchase Certificates)?

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Company, University, Society, etc. Act on ‘Resolutions’

‘LIMITATION’ Periods for Suits relating to Immovable Property

Jojy George Koduvath

The limitation periods for suits relating to immovable property under the Limitation Act, 1963 and starting points thereof are outlined below:

RECOVERY/POSSESSION, FORFEITURE, ETC.

1. Recovery of possession based on previous possession — 12 years — From the date of dispossession — Article 64.
2. Recovery of possession based on title — 12 years — When the defendant’s possession becomes adverse to the plaintiff — Article 65.
3. Adverse possession/ extinguishment of owner’s right — 12 years — Article 65 (read with Section 27) — on expiry of the period limited for a suit for possession.
- Read: Contemporary Indian Law: Adverse Possession is Not a Mere Inference of Law, But the Outcome of Proved Positive Hostile Acts
4. Possession after forfeiture or breach of condition — 12 years — When the forfeiture is incurred or the condition is broken — Article 66.
5. Landlord’s suit for possession from tenant after determination of tenancy — 12 years — When the tenancy is determined — Article 67.
6. Recovery of mesne profits — 3 years — When the profits are received — Article 51.
7. Vendor’s suit for unpaid purchase money of immovable property — 3 years — Time fixed for completing sale, or relevant later date — Article 53.
8. Specific enforcement of right of pre-emption — 1 year — When purchaser takes possession, or, if possession is not delivered, when sale is registered — Article 97.
9. Suit by person totally excluded from joint-family property to enforce his share — 12 years — When exclusion becomes known — Article 110.
10. Suit by Mitakshara son to set aside father’s alienation of ancestral property—12 years — When alienee takes possession — Article 109.
11. Possession of hereditary office — 12 years — When defendant’s possession becomes adverse to plaintiff — Article 107.
12. Possession of public street/road by local authority — 30 years — Dispossession or discontinuance of possession — Article 111.
13. Suit by Central/State Government — 30 years — When the period would begin to run against a private plaintiff — Article 112.

Adverse Possession and Partition

Articles 64–67 specifically deal with adverse possession and forfeiture of lease.
Partition — particularly where the plaintiff’s right to seek partition is alleged to have been extinguished by adverse possession, ouster – 12 years

Lease / Rent

1. Recovery of arrears of rent — 3 years — Article 52 — Time runs from when the arrears become due.
2. Recovery of possession after forfeiture/breach of lease condition — 12 years — Article 66 — Time runs from when the forfeiture is incurred or the condition is broken.
3. Recovery of possession by landlord from tenant after determination of tenancy — 12 years — Article 67 — Time runs from when the tenancy is determined.

B. EASEMENTS

1. Acquisition of Easement by Prescription — 20 years — Section 25, Limitation Act.
The easement must have been enjoyed:
- peaceably;
- openly;
- as of right;
- without interruption;
- for 20 years.
2. Where the servient property belongs to Government, the period is 30 years.

Important:

Section 25 itself says that this provision does not apply in territories to which the Indian Easements Act, 1882 extends, by virtue of Section 29(4).

Suit concerning disturbance of an easement

A suit based upon a wrongful obstruction may attract an appropriate Article concerning the particular wrongful act, while a claim to establish a periodically recurring right may fall under Article 104 — 3 years from the first refusal.

C. MORTGAGE

1. Redemption/recovery of possession by mortgagor — 30 years — Article 61(a)
2. Recovery of mortgaged property transferred by mortgagee for valuable consideration — 12 years — Art. 61(b) — from when transfer becomes known
3. Recovery of surplus collections by mortgagor — 3 years — Article 61(c)
4. Enforcement of money secured by mortgage/charge 12 years — Article 62 — when money becomes due
5. Foreclosure by mortgagee — 30 years — Article 63(a)
6. Possession by mortgagee — 12 years — Article 63(b)

D. TRUSTS AND TRUST PROPERTY

1. Section 10 can make certain suits against trustees not barred by any length of time, subject to its terms. Therefore, one must not simply put all trust-property claims under a limitation period.
2. Recovery of immovable trust property transferred by trustee for valuable consideration —12 years — Article 92 — From when the transfer becomes known to the plaintiff.
3. Recovery of movable trust property transferred by trustee for valuable consideration — 3 years — Article 93 — From when the transfer becomes known to the plaintiff.
4. Setting aside transfer of immovable property of Hindu/Muslim/Buddhist religious or charitable endowment — 12 years — Article 94 — From when the transfer becomes known to the plaintiff.
5. Setting aside transfer of movable property of such endowment — 3 years — Article 95 — From when the transfer becomes known to the plaintiff.
6. Manager of Hindu/Muslim/Buddhist religious or charitable endowment seeking recovery of property transferred by previous manager for valuable consideration — 12 years — Article 96 —The starting point is linked to the death, resignation or removal of the transferor, or appointment of the plaintiff as manager, whichever is later.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

COMMISIONS Under CPC

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Specific Relief Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Contemporary Indian Law: Adverse Possession is Not a Mere Inference of Law, But the Outcome of Proved Positive Hostile Acts

Mere ‘Nec Vi, Nec Clam, Nec Precario’ Not Enough.

Saji Koduvath, Advocate, Kottayam

Abstract

Present Indian Law crystallises:
•••• Adverse Possession = Admission + Denial + Dispossession

Admission — Admission that the true title vests in the Actual Owner.
Denial — Denial of the true owner’s title.
Dispossession — The Possession of the Claimant must be coupled with Animus to hold the Property as His Own.

Part I

Introduction

Article 65 of the Indian Limitation Act, 1963 provides 12 years as the limitation period for recovery of immovable property on the basis of TITLE, starting from the period – “when the possession of the defendant becomes adverse to the plaintiff.

When does Indian law Accept ‘Possession’ as “Adverse“?

1. Actual dispossession of the true owner by an overt act on a specified date, coupled with the animus on the part of the claimant to dispossess the true owner, denying his title.
2. The dispossession of the true owner by the claimant/trespasser must be sufficiently ‘adverse’ to put the true owner on notice/knowledge of the nature of such possession—namely, that it is hostile to the true owner’s title.
3. Such hostile possession and denial must be after ‘admitting‘ of the true owner’s Legal Title.

Starting Point of Limitation Period

The Indian Limitation Act, 1963, stipulates that the ‘starting point of limitation’ period of 12 years is “when possession … becomes adverse“.
Therefore, there should be –

‘hostile possession‘ followed by
an actual wrongful dispossession of the true owner
DENYING the title of the true owner
fully knowing him and ADMITTING that true title vests in him,
coupled with the animus to dispossess, and
to possess the land as its owner, so also
open and hostile possession to convey or impute knowledge of thereof to the true owner, and
maintained such “adverse” possession for over 12 years.

Legal Analysis

Adverse Possession is not a mere inference of law (as it was under the 1908 Limitation Act) but the direct result of positive acts by the claimant.

Resultantly, a suit for recovery based on title is never barred by limitation:
•••• (i) in the absence of a plea of adverse possession by the defendant; or
•••• (ii) even if the plaintiff admits that the defendant has remained in hostile claim of ownership for over 12 years.

Accordingly, the traditional adage ‘Nec Vi, Nec Clam, Nec Precario‘ (without force, without secrecy, and without permission) has been rendered virtually obsolete. Because, there is more emphasis to denial and intentional dispossession (than peaceful, open and continuous possession) and there will be no Adverse Possession in the present Indian Law if the defendant does not POSITIVELY –

(first) admits the true owner’s title and
denies the title of the true owner (which is hostile enough to give a reasonable notice to the actual owner) and
wrongfully dispossesses the true owner (i.e. with animus to dispossess) and
holds the Property as His Own.

Suit on Title – No Limitation Unless Defendant has Claim of Adverse Possession

No question of limitation arises unless the defendant substantiates his plea of adverse possession. This is because, after the significant change brought about by the Limitation Act, 1963, mere possession—however long—does not, by itself, become ‘adverse’.

Neelam Gupta v. Rajendra Kumar Gupta, AIR 2024 SC 5374,
Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021; 2024 KLT(Online) 3051,
K.J. Abraham v. Mariamma Itty, ILR 2016-3 Ker 98,
C. Natrajan v. Ashim Bai, AIR 2008 SC 363; 2007-14 SCC 183,
Indira v. Arumugam, AIR 1999 SC 1549,
C. Mohammad Yunus v. Syed Unnissa, AIR 1961 SC 808.

The “knowledge” required is ‘that which is brought to the true owner‘

The words in Article 65 — ‘when the possession of defendant becomes adverse to the plaintiff‘— necessarily imply or contemplate a “knowledge” on the part of the plaintiff. It is the ‘knowledge‘ that is –

acquired by the true owner, brought about by the claimant’s open and hostile acts asserting title.

T. Anjanappa v. Somalingappa, (2006) 7 SCC 570,
Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, 2009-16 SCC 517
Annakili v. A. Vedanayagam, AIR 2008SC 346; 2007 14 SCC 308,
Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316,

Adverse Possession Arises from a wrongful (with Animus) disposition of true owner

In Karnataka Board of Wakf v. Government of India, AIR 2004 SC 2096; 2004-10 SCC 779, it is held as under:

“Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner.”
“It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.”
“Physical fact of exclusive possession and the animus possidendi to hold as owner in excluion to the actual owner are the most important factors that are to be accounted in cases of this nature.”

It is pointed out in this decision that a person who claims adverse possession should show-

“(a) on what date he came into possession,
(b) what was the nature of his possession,
(c) whether the factum of possession was known to the other party,
(d) how long his possession has continued, and
(e) his possession was open and undisturbed.”

Part II

Adverse Possession Requires Admission of the True Owner’s Actual Title, Denial of That Title; and Wrongful Dispossession of the True Owner

If one party to the suit (defendant or plaintiff) effectively pleads adverse possession (admitting the title of the other party), the other party need not prove his title (subject to the doctrine of primary onus), for the title of the alleged true owner can be taken as an ‘admitted fact’.

Claimant to admit the title of the true owner. Following decisions make it clear.

1. Dagadabai v. Abbas @ Gulab Rustum Pinjari, 2017-13 SCC 705

“21…. It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner

2. Jagdish Sharma v. Tarun Gupta , SLP, Supreme(Online)(SC) 1473, 23-02-2026

“6. To claim adverse possession, a party raising such a plea has to first admit the opposite party as the true owner of the land and thereafter set up the hostile title by way of adverse possession.”

3. Michael v. The Midland Rubber Produce Co. Ltd., 2024 KER 76750

“12… It is settled law that the plea of adverse possession could be raised only if the defendant is admitting the title of the plaintiff.”

4. Mani v. Bhanumathi, RSA No. 841/2013, 02-11-2015, High Court of Kerala (P. B. Suresh Kumar, J.)

“4. A person who does not admit the title of the real owner cannot claim adverse possession.”

5. Kunhumol Simon v. State Of Kerala, 2026 KER 37238

“6. The moment the plaintiffs assert title over the property by applying the principle of adverse possession, necessarily they will have to admit the title of the Government.”

6. Raghavan v. Devayani, 2024 0 KER 17079; 2024-2 KHC 417.

“19. Indubitably, in order to perfect plea of adverse possession, the person asserting the same should have to admit the title of the other party…”

7. M Siddiq v. Mahant Suresh Das, 2020 (1) SCC 1 (Ram Janmabhumi Temple case)

“747. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed.”

Claimant to DENY the title of the true owner

1. Karnataka Board of Wakf v. Government of India, (2004) 10 SCC 779

“11. … Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner.”

2. T. Anjanappa v. Somalingappa, (2006) 7 SCC 570

“14. … Adverse possession means a [hostile possession] which is expressly or impliedly in denial of title of the true owner. …. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. …”

3. Kurella Naga Druva Vudaya Bhaskara Rao v.Galla Jani Kamma, [(2008) 15 SCC 150

“concurrent finding that … mere possession for some years was not sufficient to claim adverse possession, unless such possession was hostile possession, dening the title of the true owner…. ” is accepted.

4. Brijesh Kumar v. Shardabai, (2019) 9 SCC 369:

“Adverse possession is hostile possession by assertion of a hostile title in denial of the title of the true owner ….”

5. Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729

“The adverse possession requires requirements … adverse to a competitor, in denial of title and his knowledge. …”

6. Shri Uttam Chand v. Nathu Ram, AIR 2020 SC 461; 2020-11 SCC 263 — The judicial precedents set out in cases (2) to (5) above are discussed and relied upon in this decision.

Drastic Changes Reflected by the 1963 Limitation Act – Dispossession

Till 1963, the Indian Limitation Act, 1908 governed the law on Adverse Possession. Under the provisions of the 1908 Act, the plaintiff had to file the suit for recovery of immovable property within 12 years of losing possession by a plaintiff. Drastic changes were made to the law by the Indian Limitation Act, 1963. Article 65 introduced the following words to denote the starting point of limitation:

“when the possession of the defendant becomes adverse to the plaintiff“.

These words emphasise two distinctive, yet interrelated, key elements:

First, ‘hostile possession‘ followed by an actual dispossession (start with wrongful dispossession) of the true owner, coupled with the animus on the part of the claimant/trespasser to dispossess the true owner and to possess the land as its owner; and
Second, knowledge of the true owner—the possession of the claimant must be open and hostile, and of such a character as to convey or impute knowledge of its adverse nature to the true owner.

1. Karnataka Board of Wakf v. Government of India, AIR 2004 SC 2096; 2004-10 SCC 779

“It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.”

2. P.T. Munichikkanna Reddy v. Revamma, 2007-6 SCC 59

“Importantly, intention to possess can not be substituted for intention to dispossess which is essential to prove adverse possession.”
“Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object.”

3. Ram Nagina Rai v. Deo Kumar Rai, 2019-13 SCC 324

“11. … it is important to assess whether such intention to dispossess is apparent to the actual owner or not.”

Conclusion

Contemporary Indian law on Adverse Possession requires far more than mere compliance with the traditional maxim (which applied under the Old Limitation Act of 1908):

‘Nec Vi (without force),
Nec Clam (without secrecy),
Nec Precario (without permission)‘.

To successfully establish adverse possession today, the claimant must:

(i) Admit the legal title of the true owner;
(ii) Deny that title by asserting an open and hostile claim; and
(iii) Dispossess the true owner with the specific animus to dispossess and hold the property as their own.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

COMMISIONS Under CPC

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Specific Relief Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Law on Survey Commission in Civil Suits

Saji Koduvath, Advocate, Kottayam

Power of Courts to Issue Commissions

Courts derive power to issue Commissions from Sec. 75 CPC. It reads as under:

Sec. 75. Power of Court to Issue Commissions

Subject to such conditions and limitations as may be prescribed, the court may issue a commission-
- (a) to examine any person;
- (b) to make a local investigation;
- (c) to examine or adjust accounts; or
- (d) to make a partition;
- (e) to hold a scientific, technical, or expert investigation;
- (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;
- (g) to perform any ministerial act.

Commissions to Make Local Investigations

Order 26 rules 9 and 10 deal with appointment of Commissions to make local investigations. They read as under:

O 26 r 9. Commissions to make local investigations-

In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

O 26 r 10. Procedure of Commissioner-

(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.
(2) Report and deposition to be evidence in suit.
Commissioner may be examined in person-
The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to suit may examine the Commissioner personally in open Court touching any part of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

When serious dispute on Area or Identity, Issue a Survey Commission

The Supreme Court, in Shreepat v. Rajendra Prasad, 2000 (7)) JT 379; 2000-3 MLJ 84 ; 2000 KHC 4443, it is observed as under:

“In our opinion, this contention is correct. Since there was a serious dispute with regard to the area and boundaries of the land in question, especially with regard to its identity, the courts below, before decreeing the suit should have got the identity established by issuing a survey commission to locate the plot in dispute and find out whether it formed part of Khasra No. 257/3 or Khasra No. 257/1. This having not been done has resulted in serious miscarriage of justice.”

Advocate-Commissioner Appointed for demarcation even in injunction Suit

In Haryana Waqf Board v. Shanti Sarup, 2008(8) SCC 671, it is pointed out that, even in a suit for injunction, where there is a necessity for demarcation of land, an Advocate-Commissioner can be appointed. It has been held that if the controversy is regarding the demarcation of the land between the parties, the Court should direct the investigation by appointing a legal commission.

It is held as under:

“4. Admittedly, in this case, an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial court but in view of the fact that it was a case of demarcation of the disputed land, it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 CPC.
5. The appellate court found that the trial court did not take into consideration the pleadings of the parties when there was no specific denial on the part of the respondents regarding the allegations of unauthorised possession in respect of the suit land by them as per Para 3 of the plaint. Bu the only controversy between the parties was regarding demarcation of the suit land because the land of the respondents was adjacent to the suit land and the application for demarcation filed before the trial court was wrongly rejected.”

In Durga Prasad v. Praveen, AIR 1975 MP 196, 1975 MPLJ 801, it is held that in the case of encroachment, the appointment of a commissioner for demarcation is the proper course to determine the issue. It is held that the Court should order for appointment of a commissioner when there is a dispute of encroachment. The Division Bench of the High Court of Madhya Pradesh held that in the absence of an agreed map, the appointment of a Commissioner is necessary. It reads as under:

“25. In cases where there is a dispute as to encroachment, the fact whether there is such an encroachment or not cannot be determined in the absence of an agreed map, except by the appointment of a Commissioner under Order 26,Rule 9 of the CPC. On 15.09.1996 the plaintiff, accordingly, applied for the issue of a commission to the Director of Land Records for a theodolite survey of the plaintiff’s leasehold area. The court by its memo dated 11-10-1966 enquired from Director of Land Records whether he was prepared to undertake the work. The Director of Land Records by his memo dated 01-12-1966 signified his willingness. The Collector’s memo dated 19-04-1969 shows that on the dates fixed for the purpose, neither the plaintiff nor any person authorized by him was present at the site. For reasons best known to the plaintiff, he did not press the application for commission vide order sheet dated 02-01-1979. The court accordingly, by its memo dated 10-01-1970 recalled the writ of commission issued to the Director of Land Records. The plaintiff,therefore rested his case on the plaint map, Ex.P-1,and his oral evidence. It is needless for us to stress that no finding as to the alleged encroachment can be reached on the oral evidence adduced by the plaintiff. The plaintiff has not examined any witness to prove that he had surveyed the area, and found on actual measurements that the pit EFGH market in the plaint map, Ex.P-1, fell within his leasehold area.”

It is Incumbent upon the Court itself to issue a Survey commission

In Jaswant son of Kashi Ram Yadav v. Deen Dayal, 2011 (2) MPLJ, 576 it is observed as under:

“The moot question to be decided in this appeal is whether the property in question is of Plaintiff or Defendant. Both the parties are claiming ownership right on it. According to the Plaintiff he purchased the land vide registered sale deed Ext-P-2 from Deen Dayal and the suit property is a piece of that land but according to the Defendant it is part of the property which he purchased from Sudhir Shrivastava vide registered sale deed Ext-D-3. According to me, when there is dispute about demarcation of the property in question and its identity and both the parties are claiming it to be of their own on the basis of their document of title it was incumbent upon the Court itself to issue a commission by appointing an employee of revenue department not below the rank of Revenue Inspector to get it demarcated so that it can be identified. In the instant case my attention has been drawn by learned Counsel for Defendants to the application filed under Order XXVI, Rule 9, Code of Civil Procedure but the same has been rejected at the time of the consideration of temporary injunction application. To me learned trial Court erred in substantial error of law in rejecting the said application. The learned First Appellate Court has also committed the same error by not allowing the said application. Indeed, it was the duty of the Court itself to issue commission by appointing an employee of Revenue Department not below the rank of Revenue Inspector to get the land in dispute demarcated and for its identification no application is required for that purpose. In this context I may profitably place reliance on two decisions of Supreme Court
- Shreepat v. Rajendra Prasad and Ors. (2000) 6 Supreme 389 and
- Haryana Wakf Board v. Shanti Sharup and Ors. MANU/SC/7838/2008 : (2008) 8 SCC 671 and
- the Division Bench of this Court in Durga Prasad v. Praveen Foujdar and Ors. MANU/MP/0037/1975 : 1975 MPLJ 801; 1975 JLJ 440.”

In G.L. Purusotham v. Y. Nagaraju, 2016 (1) CCC (AP) 3 it is held – when both parties are alleging encroachment on their respective properties, appointment of advocate commissioner with the assistance of Mandal Surveyor is proper.

In Rachakonda Nagaiah v. The Government of Andhra Pradesh, 2013 (3) Civ. C.C. 107 (AP) the Court found it proper to have an application to survey the land for demarcation to adjudicate the dispute regarding boundaries.

In Prembai v. Ghanshaym, 2010 (3) MPLJ 345, relying on Haryana Waqf Board (supra) it has been held as under:-

“12. On going through the pleadings of plaintiff made in para 2 of his plaint, this Court finds that specifically it has been pleaded by him that adjoining to his plot there is an open land and thereafter defendants’ house is in existence. It has been rightly pointed out by learned counsel for the appellants that the plaintiffs sale-deed (Ex. P/1) in which the description of his plot has been mentioned, in it also has been so described that on the northern side there is an open land and thereafter the house of Krishnagopal Mundra is in existence and, therefore, since plaintiff’s own case is that in between his plot and defendants’ house there is an open space, therefore, whether any cantilever is being projected on the plaintiffs plot or not, this was required to be ascertained by appointing a competent Commissioner by directing him to examine the spot and to give report as to whether any projection of cantilever covers any portion of the plaintiff’s property or not and similarly whether the doors, windows and the drains are Signature Not Verified Signed by: SHUBHANKAR trying to be opened by the defendants on the plaintiff’s property or not. Since this has not been done, according to me, the suit of plaintiff for injunction cannot be decreed. In this regard, the Division Bench decision of Durga Prasad (supra) placed reliance by the learned counsel for the appellants is quite relevant. There are two more decisions of Supreme Court on the point and they are Shreepat v. Rajendra Prasad, 2000 (6) Supreme 389 and Haryana Waqf Board v. Shanti Sarup, (2008) 8 SCC 671.”

In Ram Lal v. Salig Ram, JT 2019 (2) SC 106 , the Supreme Court said with regard to the necessity of the appointment of a Local Commissioner under Order 26 Rule 9 of the CPC as under:

“18. In the totality of circumstances, in our view, for just and effectual determination of all the questions involved in the matter, the proper course is of issuing a fresh Commission and for direction to the Trial Court to decide the entire suit afresh on the issues as originally framed as also on the additional issues after taking the report of the Local Commissioner afresh and affording an opportunity to the parties to submit their objections, if any.”

Surveyor-Plan will not be ‘ipso facto’ Evidence

Surveyor-plan Attached to Commission Report will not be ‘ipso facto’ Evidence. If the commissioner could not vouchsafe its veracity, the surveyor should be examined.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

COMMISIONS Under CPC

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Specific Relief Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

A GRANT Must be Construed Most Strongly Against the Grantor

Jojy George Koduvath

Introduction

The general principles of interpretation of ‘grant’ is seen in the Privy Council decision -Basiram Saha Roy v. Ram Ratan Roy, AIR 1927 PC 117; 1926 54 Law Reports Ind.App. 196. It reads as under:

“A grant in respect of its amplitude is always construed (unless it be a Crown grant) against the grantor.”

Part I

Grant is controlled by the terms and conditions of the Grant

A right of easement by grant is controlled by the terms and conditions of the grant (C. Hirajee v. Suraj Bali – AIR 1929 Oudh 351). An inference is possible that the way was meant for vehicular traffic if the grantee owned a vehicle at that time.

F. Peacock in “Law Relating to Easements”, 3rd Edition at page 494, states that when the easement is by way of grant its extent and mode of enjoyment must, in conformity with the general rule, be ascertained from the terms of the instrument itself which are to be construed with reference to the circumstances existing at the date of the instrument. (See: C.H. Saraswathi Amma v. C.H. Seethamma, 2009 Supreme(Online)(KER) 10248, SA/136/1999, 18-11-2009 (Thomas P.Joseph, J.)

Where grant is silent about the extent of the user, construed against granter

The general accepted principle of law is that where the grant is silent about the extent of the user, the grant must be construed most strongly against the granter and a reasonable user in the circumstance of each case is to be interfered

In Bina Das Gupta v. Sachindra Mohan Das Gupta, AIR 1968 SC 39, followed the statement of law in Savill Bros. Ltd. v. Bethell (1902) 2 Ch. 523 at pp. 537, 538), by Stirling L. J. which held as under:

“It is a settled rule of construction that where there is a grant and an exception out of it, the exception is to be taken as inserted for the benefit of the grantor and to be construed in favour of the grantee. If then the grant be clear, but the exception be so framed as to be bad for uncertainty, it appears to us that on this principle the grant is operative and the exception fails.” (Quoted in: Delhi Development Authority v. Durga Chand Kaushish, AIR 1973 SC 2609; 1973-2 SCC 825.)

In Simon v. N. Jayanth , 1986 KLT 457, the Kerala High Court observed as under:

“……….Where, the grant however is silent about the extent of the user, the grant “must be construed most strongly against the grantor” and a reasonable user in the circumstances of each case is to be inferred. A right of way cannot be enlarged in such cases to extend the area of the right of easement; it cannot also be unduly restricted within that area either. If, therefore, the right of way admits the use of vehicles, that right cannot normally be refused and a right of way in such cases cannot be reduced to a mere footpath.”

The High Court quoted the following passage from Halsbury’s Laws of England, (Fourth Edition), Vol. 14, paras 149 to 151:

“If a right of way is claimed under an express grant which is actually existing, the nature and extent of the right depends upon the proper construction of the language of the instrument creating it. It is for the court to put the true construction upon the words used in the grant, guided, in the absence of any clear indication of the intention of the parties, by the maxim that a grant must be construed most strongly against the grantor.
The construction of the grant depends on the circumstances surrounding the execution of the instrument. Thus, a grant of a right of way per se and nothing else may be a right of footway or a general right of way or a right to any other kind of way, according to the circumstances of the case. Among these circumstances the nature and description of the land or buildings comprising the dominant tenement, and the nature of the place over which the right is granted as it existed at the date of the grant, are always very material considerations.”

After quoting the above passage it is held in Kumaran Nair v. Radha Bai, 2024 KER 43228 (C. Pratheep Kumar, J,) as under:

“Therefore, while considering the width of the grant, paramount consideration should be given to the intention of the grantor.”

In Mary Varghese v. Saju John, R.S.A. Nos. 2 & 3 of 2008, 25.5.2015, 2015 Supreme(Ker) 413, (A.V. Ramakrishna Pillai, J.), after referring Simon v. N.Jayanth , 1986 KLT 457, it is observed as under:

“13. It is true that the recitals in Ext.A3 are not cogent enough to clearly identify the starting point as well as the end point of the pathway. However, as it specifies that the lie of the pathway is along the northern boundary of DW2, the only possible inference that can be drawn is that it runs through the entire northern boundary of the aforesaid 21.250 cents of property covered by Ext.A3, starting from east and ending in the public road on the western side.”

Grant governed by the Terms; It can arise by Implication

The grant of easement may be express or even by necessary implication.

In Sree Swayam Prakash Ashramam and another Vs. G. Anandavally Amma, (2010) 2 SCC 689, the Supreme Court considered:

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?

The two questions were answered 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 is observed in Sree Swayam Prakash Ashramam and another Vs. G. Anandavally Amma, (2010) 2 SCC 689

“22. The High Court quoted with approval Katiyar’s note to Section 8 of the Easement Act, which reads as follows:
- “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 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……It is the intention of the grantor 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 can be implied. A description in a conveyance may connote an intention to create a right of easement. An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances”.
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’ 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. Therefore, the right of the plaintiff to have ‘B’ schedule property as a pathway could not have been taken away by the very same 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.”

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. It is held as under:

“23. We have heard Mr. T.L. Viswanath Iyer, learned senior counsel for the appellants and Mr. Subromanium 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 respondents 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.”

In Velayudhan v. Padmanabhan, 1988 (2) KLT 417; 1988 KHC 461, it was held by the Kerala High Court that easement of grant is a matter of contract between the parties and it may have its own consideration in some form or another.

In Hero Vinoth Vs. Sheshammal, (2006) 5 SCC 545, the Apex Court affirmed the above view and held that in the matter of grant the parties are governed by the terms of the grant and not anything else.

Easement of necessity and quasi easement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made.

Part II

Grant should be construed most favourably to the Sovereign

In Mohsin Ali v. State of M.P., AIR 1975 SC 1518; 1975 2 SCC 122, it is observed that the State-Grants require a different interpretation. It is said as under:

“16. In England contrary to the ordinary rule applicable to grants by a subject, grants by the Crown are usually construed most favorably for the Crown. The rule in case of Royal Grants is that general words will not pass prerogative rights by implication.”

In Raja Rajendra Chand v. Mst. Sukhi, AIR 1957 SC 286, it was pointed out that the English rule that a grant should be construed most favourably to the Sovereign was subject to the exception that, in cases of grants made for valuable consideration, as is the position in the lease before us, the Sovereign s honour must take precedence over the Sovereign’s profit. This Court said (at page 292) there:

“It is, we think, well settled that the ordinary rule applicable to grants made by a subject does not apply to grants made by the Sovereign authority; and grants made by the Sovereign are to be construed most favourably for the Sovereign. This general rule, however, is capable of important relaxations in favour of the subject. It is necessary to refer here to such only of those relaxations as have a bearing on the construction of the document before us : thus, if the intention is obvious, a fair and liberal interpretation must be given to the grant to enable it to take effect; and the operative part, if plainly expressed, may take effect notwithstanding qualifications in the recitals. In case where the grant is for valuable consideration, it is construed in favour of the grantee, for the honour of the Sovereign: and where two constructions are possible, one valid and the other void, that which is valid ought to be preferred, for the honour of the Sovereign ought to be more regarded than the Sovereign s profit (see para 670 at p. 315 of Halsbury s Laws of England, Vol VII, Section 12, Simonds Edition).” (Quoted in: Delhi Development Authority v. Durga Chand Kaushish, AIR 1973 SC 2609; 1973-2 SCC 825.)

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

COMMISIONS Under CPC

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Specific Relief Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Chinmaya Mission Educational & Cultural Trust v. Sree Hari R. Menon, 2026 KER 56668 (CR): A Suit Cannot be Rejected if there is a ‘Cause of Action’, for the Plaint discloses One ESSENTIAL FACT that Gives Rise to a ‘Right to Sue’

Saji Koduvath, Advocate, Kottayam.

Abstract

Ratio Decidendi of Chinmaya Mission Educational & Cultural Trust, 2026 KER 56668: The High Court of Kerala (Syam Kumar V.M., J) considered what constitutes ‘Cause of Action’ under Order VII rule 11 CPC (plaint rejection).

It found –
• under Order VII rule 11 CPC:
•••• No mini-trial is conducted –
to test the veracity or
the likelihood of success.
•••• The court solely assess the plaint
(not written statement),
assuming it to be true, taken as a whole,
to see whether a prima facie cause of action, and
cannot embark on merits and legality of claim require evidence.

Facts in a Nutshell (Chinmaya Mission Educational & Cultural Trust Case)

A student filed the suit against school management.
He challenged fee increases and sought for formation of a PTA.
The school management argued – no cause of action and suit was vexatious.
The trial court dismissed the I.A under O. VII r. 11. Defendants challenged this order.

Arguments of the Defendant

Plaintiff had created an illusion of a cause of action.
Only a bogus cause of action.
Suit is liable to be struck down at the very inception.
Plaint did not disclose any cause of action.
Alleged failings regarding the conduct of the school did not constitute a ‘cause of action’.
The school had been run adherence to the norms of the CBSE, which is the authority vested with the power to supervise and regulate the running of the school.
Though arrayed as 3^rd defendant, no relief had been sought against the CBSE. It reveals the lack of bona fides in filing the suit.
The suit is nothing, but an abuse of process of court.
Though there were 2011 students in the school, the respondent alone had challenged the policy decision of the management.
What had been put forth was not his individual grievance as a student. The suit, thus not having been filed on a representative capacity.
There is lack of good faith in filing the suit.
The petitioner school being a reputed institution.
It was to maintain high stands of education and to ensure that competent teachers are employed. It was inevitable that the fee structure of an institution must be drawn up keeping in mind the infrastructure and facilities as mandated by the CBSE.
It is the recognised principle of law that each institution must have the freedom to fix its own fee structure taking into consideration the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students.

Decisions Relied on by the Defendants

Patasibai and others v. Ratanlal [(1990) 2 SCC 42];
T.Arivandandam v. T.V. Satyapal and another [(1977) 4 SCC 467 and
Vinod Pathak v. Shankar Chaudhary [2025 (5) KHC SN 22].
M. Aamira Fathima and others v. Annamalai University and others [2018 KHC 6503] and
Nesammal and others v. Edward and others [1999 AIHC 470].
State of Kerala and others v. V.D.Vincent [2018 (3) KLT 677];
Prema Kumari C.V. v. C.V. Pavithran and others [2018 (5) KHC 943];
Anand Anoop v. Union of India and others [2014 (3) KLT 171] and
The Principal, Sri Sri Ravi Shankar Vidhya Mandir v. Sankara Narayanan and others (W.A.No.1662 of 2018 in W.P.(C) No.22249 of 2018 of this Court).

Arguments of the Plaintiff

The impugned order does not call for any interference.
It is on the well-settled principle that
- cause of action needs to be prima facie seen as per the averments in the plaint itself and
- no further enquiry regarding the cause of action is needed at the threshold.
The plaint averments prima facie reveals a cause of action.
It had also been concluded by the learned Munsiff – with regard to the applicability of Education Act, disputes as to the fee structure, prayer to constitute a parent-teacher association etc. are questions which cannot be decided at the threshold and-
- they can be considered only after adducing evidence on both sides;and
- they require tendering and appreciation of evidence.
The Munsiff had concluded that averments in the plaint itself reveal that the plaintiff had a cause of action of his own, which is not a cause of action applicable to each and every student of the school.
A specified amount has been received by the school from the plaintiff as donation on a particular date and he has been directed to pay the said amount.
Similarly a specified amount as fee in the increased rate within a prescribed period had also been claimed from the plaintiff by the school, against which he had sought a relief in the suit.
Such reliefs sought affect the individual only, even though similar reliefs could have been sought by some other students of the school too.
That no other student took up such a cause does not by itself render the suit to be maintained only in a representative capacity or in the nature of a representative suit.
Distinction between ‘ no cause of action’ and ‘the plaint does not disclose cause of action’: Reliance is placed on State of Orissa v. Klockner and Company [1996 KHC 1115 – SC] to highlight the distinction.

The Often Recurring Question on O. VII r. 11(a): What Constitutes a ‘Cause of Action’

The conscientious Judge began the Order with the following observation:

“The often recurring question as to what constitutes a ‘cause of action’ for the purposes of Order VII Rule 11(a) of the Code of Civil Procedure, 1908, (C.P.C.) again comes up for consideration in this Civil Revision Petition.”

Findings in Brief

‘Cause of Action’ – EVERY ESSENTIAL FACT Gives Rise To A Right To Sue.

The Supreme Court and various High Courts have held –

For the purposes of Order VII Rule 11(a) of the Code of Civil Procedure, 1908, a “cause of action” means the bundle of material facts which the plaintiff must plead and, if disputed, prove in order to obtain the relief claimed.
It comprises every essential fact that gives rise to the plaintiff’s right to sue, but does not include the evidence by which those facts are to be established.

The High Court referred the following decisions:

1. Kusum Ingots & Alloys Ltd. v. Union of India [(2004) 6 SCC 254]

It was held by the Supreme Court as under:

“6. Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitute the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action. Its importance is beyond any doubt. For every action, there has to be a cause of action, if not, the paint or the writ petition, as the case may be, shall be rejected summarily.”

2. Mohan Rawale v. Damodar Tatyaba [(1994) 2 SCC 392]

It was held as under:

“A reasonable cause of action is said to mean a cause of action with some chances of success when only the allegations in the pleading are considered. But so long as the claim discloses some cause of action or raises some questions fit to be decided by a Judge, the mere fact that the case is weak and not likely to succeed is no ground for striking it out. The implications of the liability of the pleadings to be struck out on the ground that it discloses no reasonable cause of action are quite often more known than clearly understood. It does introduce another special demurrer in a new shape. The failure of the pleadings to disclose a reasonable cause of action is distinct from the absence of full particulars.

3. Swamy Atmananda v. Sri Ramakrishna Tapovanam [(2005) 10 SCC 51]

It was held as follows:

“24. A cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded.

The Next Question – When it could be said that the plaint ‘discloses a cause of action’

1. T. Arivandandam v. T.V. Satyapal [(1977) 4 SCC 467]

Referring T. Arivandandam v. T.V. Satyapal it is observed by the High Court that the test for exercising the power under Order VII Rule 11, is no longer res integra. The Supreme Court held – what is required to be decided is to ascertain whether the plaint discloses a ‘real’ cause of action, or something purely illusory. It was held therein as follows:

“5. …The learned Munsiff must remember that if on a meaningful – not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing …”

2. Dahiben v. Arvindbhai Kalyanji Bhanusali [2020 SCC OnLine SC 562]

In Dahiben v. Arvindbhai Kalyanji Bhanusali, the Supreme Court has held that under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law. It was further held as under:

“12.7 The test for exercising the power under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V.Sea Success I & Anr., which reads as :
“139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.”
In Hardesh Ores (P.) Ltd. v. Hede & Co. the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact.”

3. Manjula v. D.A. Srinivas [2026 SCC OnLine SC 831]

In Manjula v. D.A. Srinivas [2026 SCC OnLine SC 831], after a reference to Correspondence, RBANMS Educational Institution v. B. Gunashekar [2025 SCC OnLine SC 793], held that the rejection of a plaint under the grounds mentioned under Order VII Rule 11 is essentially determinable on the basis of the averments contained in the plaint.

The High Court Explained the Decisions Relied on by the Defendants

In Chinmaya Mission Educational & Cultural Trust v. Sree Hari R. Menon, 2026 KER 56668, the Kerala High Court Explained the following decisions relied on thy the defendants:

T. Arivandandam (supra)
Nesammal (supra)
M.A.Amira Fathima (supra)
The Principal, Sri Sri Ravi Shankar Vidhyala Mandir (supra)

Prema Kumari v. Pavithran [2018 (5) KHC 943]: A Note of caution on T. Arivandandam

It is held in Chinmaya Mission Educational & Cultural Trust v. Sree Hari R. Menon as under:

“In Prema Kumari C.V. v. C.V. Pavithran [2018 (5) KHC 943] the Kerala High Court had cautioned the subordinate courts not to understand the principles laid down in T. Arivandandam (supra) to mean that under any and all circumstances, a plaint can be rejected for reasons not mentioned in Order VII Rule 11 of the Code. It was held that it is the inviolable general rule that a plaint can be rejected only under the grounds of Order VII Rule 11 of the Code, but at the same time, it should be borne in mind that the grounds of rejection stated in Rule 11 of Order VII are not exhaustive. It was thus clarified in Premakumari (supra) that a plaint can be rejected even for reasons not covered by Order VII Rule 11 of the Court if there are grave situations which may result in an abuse of the process of court or which may tend to promote frivolous, vexatious, and meritless litigations. This Court therein had further observed that it is only in extraordinary situations, that extraordinary remedies could be resorted to.”

Azhar Hussain v. Rajiv Gandhi [1986 (supp) SCC 315] – No Mechanical Application of Nesammal (supra)

It is held in Chinmaya Mission Educational & Cultural Trust v. Sree Hari R. Menon as under:

“It is trite that a plaint can indeed be rejected and ought to be rejected if found to be vexatious or, upon reading of the allegations therein, it is revealed that the same is an abuse of process of law. The said dictum settled in Nesammal (supra) and relied on by the learned counsel for the petitioner is no longer open to dispute. However, it is also settled that there cannot be a mechanical application of the said dictum. It would be apposite to reproduce the observations in Azhar Hussain V. Rajiv Gandhi [1986 (supp) SCC 315] reproduced in Nesammal (supra) explaining the power of rejection of a plaint vested in a civil court, which reads as follows:
“The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless and bound to prove abortive, should not be permitted to occupy the time of the court and exercise the mind of the respondent. The sword of democles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation, the court readily exercises the power to reject a plaint if it does not disclose any cause of action. Or the power to direct the concerned party to strike out unnecessary, scandalous, frivolous or vexatious parts of the pleadings, or such other pleadings which are likely to cause embarrassment or delay the fair trial of the action or which is otherwise an abuse of the process of law.”

M.A. Amira Fathima (supra) and Principal, Sri Sri Ravi Shankar Vidhyala (supra)

M.A. Amira Fathima (supra) and The Principal, Sri Sri Ravi Shankar Vidhyala Mandir (supra) are distinguished in Chinmaya Mission Educational & Cultural Trust v. Sree Hari R. Menon, pointing out to the following effect:

The question as to whether the educational institutions are entitled to fix their own fee structure, and each institute must have the freedom to fix its own fee structure, taking into consideration the needs to generate funds to run the institution and to provide facilities necessary for the benefit of the students and for the betterment and growth of that educational institution are –
aspects concern the merit of the matter, sustainability of which could only be decided after a trial.
They cannot be a reason to reject a plaint on the ground of lack of cause of action by invoking Order VII Rule 11 of the C.P.C.

Conclusion in Chinmaya Mission v. Sree Hari R. Menon

Chinmaya Mission Educational & Cultural Trust v. Sree Hari R. Menon concluded as under:

The learned Munsiff rightly proceeded on the settled principle that, while considering an application questioning the maintainability of a suit at the threshold, particularly one seeking rejection of the plaint, the Court is required to confine its examination solely to the averments contained in the plaint and the documents, if any, produced.
At that stage, the Court is neither expected nor permitted to embark upon an enquiry into the truthfulness, correctness, or evidentiary sufficiency of the allegations pleaded therein.
The existence of a cause of action is to be determined on a meaningful reading of the plaint as a whole, assuming the averments therein to be true for the limited purpose of deciding whether the suit is maintainable.
The Munsiff had unequivocally concluded that the plaint, on its face, disclosed a prima facie cause of action warranting adjudication through a regular trial.
The applicability of the provisions of the Education Act, the legality of the fee structure adopted by the institution, and the maintainability of the relief sought for issuance of a direction to constitute a Parent-Teacher Association, are all questions that involve disputed questions of fact as well as mixed questions of law and fact.
Such questions could not have been conclusively determined merely on the basis of pleadings at the threshold without affording the parties an opportunity to substantiate their respective contentions through oral and documentary evidence. All these matters could be adjudicated after a full-fledged trial and upon appreciation of the evidence placed on record.
Premature adjudication of these issues at the stage of considering the maintainability of the suit would have amounted to conducting a mini trial, which is not permissible in law.
The learned Munsiff had rightfully forebeared from doing so.
The plaint having disclosed a prima facie cause of action, the suit was liable to proceed to trial, where the rival claims can be adjudicated on their respective merits in accordance with law.

End Notes:

In Vinod Infra Developers Ltd. v. Mahaveer Lunia, AIR 2025 SC 2933 (J.B. Pardiwala, R. Mahadevan, JJ.), held to the following effect:

Under Order VII Rule 11 – Rejection of plaint –

••  Court examines averments in plaint alone
                          • on its face,
                          • without considering defence.
••  There will be No partial rejection.
                 •  If even one cause of action survives
                • If any triable issue exists.
•Selective severance of reliefs is impermissible
                           • where different causes of action are independently pleaded
                   • and supported by distinct facts.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Specific Relief Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Disciplinary Proceedings Against Employees of Societies and other Autonomous Establishments

Saji Koduvath, Advocate, Kottayam.

Contents
•• 1. SUSPENSION
•• 2. DISCIPLINARY SUB-COMMITTEE
•• 3. FACT-FINDING ENQUIRY
•• 4. “SHOW-CAUSE NOTICE”
•• 5. CHARGES
•• 6. ENQUIRY
•• 7. PUNISHMENT
•• 8. APPEAL

Introduction

Indian courts consistently apply fundamental common law principles and natural justice to disciplinary proceedings against employees of societies and autonomous institutions. In Kerala, these general standards are statutorily embodied in Rule 198 of the Kerala Co-operative Societies Rules, 1969. The key procedural requirements governing such actions, structured with reference to Rule 198, are outlined below.

SUSPENSION

Who has to suspend an employee ?

An authority competent to appoint the employee has to suspend him.
Usually, the Managing Committee is the appointing authority. When the Managing Committee has taken a decision, it can be issued by the President or the Secretary of the committee.
President’s Role: In urgent situations requiring immediate preventive action, the President may issue a suspension order in anticipation of subsequent ratification by the Managing Committee. The President has general control over the affairs of the Society, as the chief executive of the Committee.
- See: Prasanth Maroli v. Kannur Primary Co-operative Agricultural & Rural Development Bank Ltd. 2008 (4) KLT 451; 2008 (4) KHC 240); Chandrikamma v. Assistant Registrar (General), Co-operative Societies, 2000 (3) KLT 940.
The bye-laws of the society may expressly confer disciplinary/ suspension power on the President or exclusively on the Committee. It has to be honoured.

Rule 198(6) of the Kerala Co-operative Societies Rules, 1969 provides as under:
“An authority competent to appoint an employee may suspend him pending enquiry into serious charges against such employee.”

What should be the period of suspension?

The period of suspension should be kept as brief as possible to ensure fairness and prevent unnecessary hardship.

Rule 198(6) of the Kerala Co-operative Societies Rules is the relevant provision. It reads:
“No employee shall however be kept under suspension for a period exceeding six months at a time. In no case an employee shall be kept under suspension for a continuous period exceeding one year without the prior approval of the Registrar.”

Is the suspended employee entitled to a subsistence allowance?

Yes. Because suspension is not a punishment.

Rule 198(6) of the Kerala Rules further reads:
“An employee under suspension shall be entitled to subsistence allowance payable under the Kerala Payment of Subsistence Allowance Act, 1972 (27 of 1973).”

Is suspension a part of enquiry?

No. Suspension and enquiry are independent legal matters. It is not a step within the enquiry itself.

Is suspension a punishment?

No. Suspension is purely a temporary administrative measure to ensure a fair enquiry.

Can a suspended employee be reinstated pending an enquiry?

Yes. A suspended employee can be taken back into service pending an enquiry by revoking the suspension order if the competent authority later finds that continued suspension is unnecessary.

What are the grounds for revoking suspension?

‘In the absence of any likelihood of the respondent to interfere with the enquiry or tampering with the evidence keeping the employee under suspension is unwarranted and cannot be justified.’ This principle is stated in K.K. Chandramathi v. Vadakkumpad Service Co-operative Bank Ltd., 1998 (2) KLT SN 37.

Who can revoke the suspension?

The same authority competent to suspend—normally the Managing Committee—may revoke the suspension and permit the employee to rejoin duty.

Can such employee be posted elsewhere?

Yes.

The Society may:
- revoke the suspension;
- assign the employee to another seat/branch/section;
- restrict access to records connected with the enquiry; or
- require the employee not to interfere with witnesses or documents.
Such arrangements are often adopted where the employee’s presence is not likely to prejudice the enquiry.

DISCIPLINARY SUB-COMMITTEE

Why is a Disciplinary Sub-Committee formed?

Ensuring a Genuine Right of Appeal: If the full Managing Committee were to conduct the initial inquiry or directly impose punishment, an employee would have no independent, unbiased body left to hear an appeal. Separating the initial disciplinary authority from the appellate body ensures that the Managing Committee can function as an impartial tribunal during the appeal stage.
Separation of Roles: Having a smaller, dedicated standing body to handle charge memos and inquiries prevents the members who judge the final appeal from having prejudged the facts or actively participated in the original penalty decision (nemo judex in causa sua).

The disciplinary sub-committee, envisaged under Rule 198(2A), is ordinarily to be constituted as a standing body, and it is not constituted on a case-to-case basis (Mattanur Co-Operative Rural Bank Ltd. v. The Co-Operative Arbitration Court (FB), 2023-5 KLT 312; 2023 KHC (Online) 541).

How many members can be included in a Disciplinary Sub-Committee?

The total number of sub-committee members must be kept low enough so that when they abstain or recuse themselves from hearing an appeal, the remaining members of the Managing Committee (Managing Committee members minus (-) Sub-Committee members) still form a clear majority to hear the appeal without institutional bias.

Rule 198 (2A) reads:
“The committee of a society shall constitute a disciplinary sub-committee consisting of not more than three of its members, of whom one shall be designated as Chairman ….”

Can the Disciplinary Sub-Committee suspend an employee?

No. Only the authority competent to appoint the employee (Management) holds the power to issue a suspension order.
Role of the Sub-Committee: The scope and authority of a Disciplinary Sub-Committee are strictly limited to issuing charge memos and inquiring into charges.

Rule 198(6) says –
“… an authority competent to appoint an employee may suspend him pending enquiry into serious charges.”

Can the President of the Society be the President of the Disciplinary Committee?

Better not to be. This is for the reason that the Appeal is to the Managing Committee, chaired by the President.

Rule 198 (2A) further reads:
“….. but the President of the committee of the society shall not be a member in the disciplinary sub-committee”.

Duties of Disciplinary Sub-Committee

The Full Bench in Mattanur Co-Operative Rural Bank Ltd. v. The Co-Operative Arbitration Court, 2023-5 KLT 312; 2023 KHC (Online) 541, has now made it clear that the Disciplinary Sub-Committee has a substantial statutory role. It can:
- 1. inquire into the charges;
- 2. issue the memo of charges;
- 3. engage an external agency;
- 4. conduct or arrange the disciplinary enquiry.

Can those (already constituted) Sub-Committee members participate in the Managing Committee’s decision to suspend?

No harm. Ordinarily, they should not participate (or vote) in the Managing Committee’s decision on suspension if they are acting as members of the Disciplinary Sub-Committee.

Can a member of the Disciplinary Sub-Committee participate in the Managing Committee in the disciplinary-action-decision-making process?

Being a member of the Managing Committee he does not, by itself, disqualify from attending a Managing Committee meeting.
But participating in the enquiry as a member of the Disciplinary Sub-Committee and then participating in the decision-making process concerning the same disciplinary matter raises a serious issue of institutional bias / nemo judex in causa sua.
This is particularly strong where the Sub-Committee has already formed an opinion regarding the charges or recommended disciplinary action.

PRELIMINARY FACT-FINDING ENQUIRY

Can there be a preliminary fact-finding enquiry before issuing a formal charge sheet?

Yes, it can be. It is not legally required. Such a procedure is not in Rule 198. Still, it may be useful, particularly where the facts are uncertain.
It is only a fact-finding exercise to decide whether further action is warranted. It does not legally bind the employee or formally start disciplinary proceedings. It is for the limited purpose of ascertaining the veracity of the allegation against the employee. (Girijan Co-operative Corporation Limited, Andhra Pradesh v. K. Satyanarayana Rao, S.B. Sinha, Deepak Verma, JJ., 2010-15 SCC 322; 2010 KHC 5107)
In this action, the employee is not entitled to a formal hearing.

Can the preliminary fact-finding enquiry be done by the Disciplinary Sub-Committee

It is not a full-fledged ‘fact-finding’ procedure. It should not be done in a way so that it may cast prejudice to the minds of persons who may be associated with the ‘enquiry’ done after issuing a Charge Memo.
Therefore, it is proper to conduct the preliminary fact-finding enquiry through persons other than the members of the Disciplinary Sub-Committee.

Should opportunity be given to the employee to make his representation on the preliminary fact-finding enquiry report?

Not at all necessary. It is not even an ‘enquiry’ in its full sense.

SEPARATE “SHOW-CAUSE NOTICE” BEFORE ISSUING THE CHARGE-SHEET

Should there be a separate “show-cause notice” before issuing the charge-sheet?

Not necessary. A separate “show-cause notice” before issuing the charge-sheet is not required in every case. Such a procedure is not in Rule 198.
But it is useful and may be a fair procedure to ask the employee to explain why disciplinary action should not be initiated, particularly where the facts are uncertain.

CHARGES

Is it necessary to issue Memo of Charges in disciplinary actions?

Yes.

Rule 198(2) reads:
“(2) No kind of punishment shall be awarded to an employee unless he has been informed in writing of the grounds on which it is proposed to take action against and he has been afforded an opportunity including a personal hearing to defend himself. ….”

What should be the contents of a Charge Sheet?

The grounds on which it is proposed to take action against the employee.

Rule 198(2) itself requires –
It should be capable of affording an opportunity to understand the matters upon which actions are taken against him and defend himself.

Who has to issue Memo of charges in disciplinary actions?

Memos of charges in disciplinary actions can be issued by the
- disciplinary sub-committee or
- the managing committee.
- (Mattanur Co-Operative Rural Bank Ltd. v. The Co-Operative Arbitration Court (FB), 2023-5 KLT 312; 2023 KHC (Online) 541, analysing the Kerala Cooperative Societies Rule 198).
It is desirable to be done by a sub-committee – so that it may not cast prejudice to the minds of persons (other managing committee members) who may be associated with the ‘appeal decision’ that may be arisen in future.

Time of issue of Memo of charges?

Before starting enquiry.

Should an explanation be sought for from the employee when a Memo of charges is issued?

Yes, though not mandatory. It is not so specifically stated in the Kerala Co-operative Societies Rules. If the employee admits the guilt, it may not be necessary, in the circumstances of the matter, to conduct an enquiry even.

Purpose of issuing a charge-sheet

It is a mandatory requirement apart from complying natural-justince.

Rule 198(2) provides — No kind punishment unless the employee has been informed in writing of the grounds on which it is proposed to take action against.

Therefore, it is clear that the purpose of a charge sheet is precisely to tell the employee what he is required to meet. See: Saralakumari P.V. v. President, Kottayam Co-operative Urban Bank Ltd.

Should the charges be specific?

A vague allegation such as “you committed serious irregularities” is different from a charge identifying the particular act, date, transaction, document and rule allegedly violated. Vague charge is defective.

Whether the omission to make a charge-sheet (or improper charge sheet), vitiates the entire disciplinary proceeding?

Yes. The absence of a charge-sheet/memo of charges before that enquiry is a serious procedural defect and can vitiate the enquiry. Framing of the charge-sheet is the first step taken for holding enquiry into the allegations on the decision taken to initiate disciplinary proceedings. See:
- Union of India v. K.V. Jankiraman, AIR 1991 SC 2010,
- Union of India v. Anil Kumar Sarkar, 2013 (4) SCC 161, and
- State of Andhra Pradesh v. C.H. Gandhi, 2013 (5) SCC 111.

ENQUIRY

Who has to enquire into the charges?

A sub-committee of the Managing Committee, or an outside agency like an Enquiry Officer. Usually an Advocate is appointed.

Rule 198(2B) reads as under:
“The disciplinary sub-committee so constituted shall inquire into the charges against the employee either by themselves or by engaging an external agency.”

Can an advocate can be engaged as an external agency/enquiry officer for the disciplinary enquiry?

Yes, an advocate can be engaged as an external agency/enquiry officer for the disciplinary enquiry.

Who has to appoint the advocate/enquiry officer?

The Managing Committee, if no specific By-law provision.

Rule 198(2B) provides:
“The disciplinary sub-committee so constituted shall inquire into the charges against the employee either by themselves or by engaging an external agency.”

Can the Managing Committee appoint the Advocate?

If the By-law does not provide anything as to this matter, the Managing Committee has to appoint the Advocate.

In view of Rule 198(2B), the Managing Committee should not simply bypass the Sub-Committee and appoint an Advocate to conduct the Rule 198 enquiry unless there is some separate statutory authority for doing so (such as a by-law provision).

Should there be a presenting Officer for Management?

Yes. Normally it will be the Secretary of the Society.

What are the duties of a presenting Officer for Management?

Inspect documents or places;
collect evidence;
investigate particular factual matters for the Management;
submit sworn statement before the enquiry officer by himself or arrange a competent person or persons for the same.

Should the Sub-Committee analyse and adopt the findings (if they agree) of the advocate’s report?

Yes. If the advocate is engaged as the external agency, it should not be mechanically adopted the Committee or Sub-committee. It must consider the report, the materials/evidence relied upon, and the employee’s explanation/ objections, if any, and then arrive at its own independent finding on each charge.

Is the Advocate’s report the ultimate finding of disciplinary action?

No. The advocate’s report is not itself the disciplinary decision. The external agency (advocate) only conducts the enquiry. The advocate’s report is therefore a report/ recommendation arising from the enquiry; it does not automatically become the final finding of the statutory disciplinary authority.

Rule 198(2B) says that the Disciplinary Sub-Committee shall inquire into the charges “either by themselves or by engaging an external agency.”

The Disciplinary Sub-Committee is required to independently consider the enquiry report, the evidence on record and the defence of the delinquent employee, apply its own mind to each charge, and record its independent finding as to whether the charge has been proved.
A mechanical acceptance of the external agency’s report, without independent consideration and a reasoned finding by the competent disciplinary authority, would be vulnerable to under Rule 198.

Should opportunity be given to the employee to make his representation on the enquiry report and on the proposed finding of guilt/punishment?

Desirable; not mandatory under the Rules.

Must the employee receive the Advocate’s enquiry report?

If the disciplinary authority relies upon the report, the employee should ordinarily be furnished the report and given an opportunity to make a representation before the final decision.

Can the disciplinary authority disagree with the Enquiry Officer?

Yes—but the procedure becomes important. If the disciplinary authority proposes to disagree with a finding favourable to the employee, the employee should ordinarily be informed of the proposed disagreement and allowed to respond before the finding is finally recorded.

Should the findings be confined to the charges?

The authority should not punish the employee for an allegation which was never made a charge and on which no opportunity of defence was given.

Can a charge be held proved merely because the employee did not disprove it?

The disciplinary authority must assess the material establishing the misconduct; it should not simply reverse the burden onto the employee.

What is the standard of proof?

A departmental/co-operative disciplinary proceeding is generally governed by the preponderance of probabilities, rather than proof beyond a reasonable doubt. But the finding still has to be based on evidence/material on record.

PUNISHMENT

Who should impose the punishment?

The sub-committee, if so appointed. A sub-committee is desirable – for providing an appeal to the Managing Committee.

Under the Kerala Co-operative Societies Rules, 1969, it is a matter that depends upon the employee’s category as shown in the table in Rule 198(3). It reads as under:

Rank of the employee	Authority competent to impose
	Penalties under (a) to (c)	Penalties under (d) to (h)
Secretary /Manager or other Chief Executive Officer and all employees holding posts higher than that of Sr. Clerk/Sr. Assistant/I Grade Assistant/Equivalent other employees with same or identical scale of pay	President /Chairman	Sub-Committee/ Executive Committee
All other employees	Secretary /Manager or other Chief Executive Officer.	President

Where the relevant penalty is one that the Disciplinary Sub-Committee is competent to impose under Rule 198(3), the Sub-Committee may impose it in the categories specified in Rule 198(3).
Where the Managing Committee is the competent penalty authority, however, the Sub-Committee’s role is different: it conducts the enquiry and records its findings, and the competent authority thereafter deals with the penalty in accordance with Rule 198.

Should opportunity be given to the delinquent to say his part as regards the proposed punishment?

Yes.

Rule 198(2) requires the employee to be informed in writing of the grounds on which action is proposed and given an opportunity, including personal hearing, to defend himself.

Should there be ‘Show-Cause Notice’ for Punishment

Yes. It is to comply doctrine of natutal-justice. “Communication of Enquiry Report and Opportunity to Submit Representation Against the Findings and Proposed Penalty” is desirable rather than: “Show-Cause Notice for Punishment”.

Is the Managing Committee the disciplinary/penalty authority?

If a Sub committee, No. The Managing Committee has to act as the appellate authority.

Under Rule 198(4), the Managing Committee is the appellate authority.

The President is the competent penalty authority for certain lower-level employees under the table in Rule 198(3), and the Executive Committee/Board was the appellate authority.
The Managing Committee cannot and should not subsequently “approve” or “confirm” the punishment if the Sub-Committee is the designated penalty authority.

What must the final punishment order contain?

It should ideally contain:

charges,
employee’s defence,
enquiry findings,
consideration of objections to the report,
independent findings of the competent authority,
reasons for accepting/rejecting material contentions,
finding on each charge,
reasons relevant to the penalty,
penalty imposed,
right of appeal and appellate authority.

Should the punishment be proportionate?

Even if misconduct is proved, the proportionality of the penalty can be challenged in appropriate circumstances.

APPEAL

Who is the appeal authority?

Usually, the Managing Committee is the appellate authority. It is so under Rule 198(4). It provides as under:

Rank of the employee	Authority competent to impose
	Penalties under (a) to (c)	Penalties under (d) to (h)

Secretary /Manager or other Chief Executive Officer and all employees holding posts higher than that of Sr. Clerk/Sr. Assistant/I Grade Assistant/Equivalent other employees with same or identical scale of pay	Executive Committee or Board of Management	Board of Management
All other employees	President	Executive Committee/ Board of Management

Can members of the Disciplinary Sub-Committee subsequently participate in the Managing Committee’s decision on appeal?

Not Desirable. This raises the bias/nemo judex issue, especially if those members have already considered the evidence and formed an opinion about guilt.

End Notes:

Rule 198 of the Kerala Co-operative Societies Rules

Rule 198. Disciplinary action.— (1) Any member of the establishment of a cooperative Society may, for good and sufficient reasons, be punished by imposing any of the following penalties, namely:

(a) Censure;
(b) Fine (in the case of employees in the last grade);
(c) Withholding of increments with or without cumulative effect.
(d) Withholding of promotion;
(e) Recovery from pay of the whole or part of any pecuniary loss caused to the society, by negligences or breach of orders or otherwise;
(f) Reduction to a lower rank;
(g) Compulsory retirement;
(h) Dismissal from service.

(2) No kind of punishment shall be awarded to an employee unless he has been informed in writing of the grounds on which it is proposed to take action against and he has been afforded an opportunity including a personal hearing to defend himself. Every order awarding punishment shall be communicated to the employee concerned in writing stating the grounds on which the punishment has been awarded.

(2A) The committee of a society shall constitute a disciplinary sub-committee consisting of not more than three of its members, of whom one shall be designated as Chairman, but the President of the committee of the society shall not be a member in the disciplinary sub-committee.

(2B) The disciplinary sub-committee so constituted shall inquire into the charges against the employee either by themselves or by engaging an external agency.

(3) The authority competent to impose the various penalties on different categories of employees shall be as shown in the table below:

Rank of the employee	Authority competent to impose
	Penalties under (a) to (c)	Penalties under (d) to (h)
Secretary /Manager or other Chief Executive Officer and all employees holding posts higher than that of Sr. Clerk/Sr. Assistant/I Grade Assistant/Equivalent other employees with same or identical scale of pay	President /Chairman	Sub-Committee/Executive Committee
All other employees	Secretary /Manager or other Chief Executive Officer.	President

(4) An appeal shall lie against every order imposing a penalty to the competent appellate authority, shown in the table below:-

Secretary /Manager or other Chief Executive Officer and all employees holding posts higher than that of Sr. Clerk/Sr. Assistant/I Grade Assistant/Equivalent other employees with same or identical scale of pay	Executive Committee or Board of Management	Board of Management Executive
All other employees	President	Committee/Board of Management

(5) No appeal shall be entertained if it is not preferred within a period of three months from the date of the order imposing the penalty. Provided that where the penalties are imposed on employee by an administrator or an administrative committee, such employees can file appeal before the forthcoming elected committee and in such cases the restriction of three months shall not be applicable.

(6) An authority competent to appoint an employee may suspend him pending enquiry into serious charges against such employee. No employee shall however be kept under suspension for a period exceeding six months at a time. In no case an employee shall be kept under suspension for a continuous period exceeding one year without the prior approval of the Registrar. An employee under suspension shall be entitled to subsistence allowance payable under the Kerala Payment of Subsistence Allowance Act, 1972 (27 of 1973).

Provided that an employee not coming under the purview of the Kerala Payment of Subsistence Allowance Act, 1972 (27 of 1973) shall be entitled to subsistence allowance at the rate admissible to State Government Employees as prescribed under the Kerala Service Rules.

(7) In the event of any pendancy of disciplinary proceedings against any employee of a co-operative society or any co-operative institution pursuant to any charge of grave misconduct, irregularity, corruption or other charge involving moral turpitude, no retirement benefits shall be sanctioned to such employee or retired employee and in case of sanctioning of any retirement benefits to any such employee or retired employee, the name and designation of the sanctioning authority together with the reason for such sanctioning shall be recorded by the sanctioning authority by himself and such authority shall be held responsible for any loss to the society owing to such sanctioning of retirement benefits if found that such sanctioning was unwarranted.

(8) In respect of all employees save the Chief Executive Officer of a society, no retirement benefits shall be sanctioned and disbursed until after the due issuance of a nonliability certificate by the Chief Executive Officer and approval of the same by the committee of the society within thirty days from the date of retirement of such employee. In the event of the retirement of the Chief Executive Officer, the non-liability certificate shall be issued by the committee of the Society. For any loss to the society due to the non-adherence of the forgoing procedure, the Chief Executive Officer along with the committee of the society shall be held responsible collectively and severally in respect of the issuance of Non-liability Certificate to any employee other than the Chief Executive Officer and the members of the committee shall be held collectively and severally responsible for the issuance of Non-liability Certificate to the Chief Executive Officer.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Specific Relief Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Disciplinary Proceedings Against Employees Co-Operative Societies

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Civil Court to Adjudicate Title; Land Tribunal to Fix Tenancy; Taluk Land Board to Determine Plantation Exemption

Abstract

Civil court alone to find disputes on title.
A tenant cannot declare himself to be tenant.
Land Tribunal is the sole authority to determine Tenancy.
The TLB alone deals with exemption and land to be surrendered.

Civil court alone to find disputes on title

It is observed in M/S Radha Krishan Industries v. The State of Himachal Pradesh, 2021 SCC OnLine SC 334, that where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition (Art. 226); and it is pointed out that this principle have been consistently upheld by the Apex Court in

Seth Chand Ratan v Pandit Durga Prasad, (2003) 5 SCC 399,
Babubhai Muljibhai Patel v Nandlal Khodidas Barot, (1974) 2 SCC 706 , and
Rajasthan SEB v. Union of India, (2008) 5 SCC 632, etc.

The Division Bench of the Kerala High Court in Harrisions Malayalam Ltd. v. State of Kerala, 2018(2) KLT 369, held that even the High Court cannot adjudicate on title. It is held as under:

“141. …Title, we reiterate, in this context, we have not found on the petitioners, which we are incompetent to do in the present (Writ) proceedings……”.

Title to the Property is not Ajudicated by the TLB.

In K. Jagadeesachandran v. E.K. Mamomohanan Pandarathil, 2013 (4) KLT 584, it was held with respect to title of a plantation property as under:

“As rightly argued by the learned Senior counsel appearing for the company such issue (with respect to title) is wholly outside the realm of the TLB proceedings … . Nor did the TLB have the jurisdiction to enter a finding on any such contention.”

In Harikumar v. State of Kerala, 2013 (2) KLT 44; 2013 (1) KHC 847 (Para 9), it was held as under:.

“Title to property is not what is decided in the Land Board proceedings in a ceiling case as between the declarant and the State, though such issues may be germane while exemptions or identification of excess, are to be decided by the Land Board, as between the declarant and other parties appearing before the Land Board. If the Government have the case that the paramount title to the land rests with them, they would be at liberty to initiate action in accordance with law.”
Both Harikumar v. State of Kerala, 2013 (2) KLT 44 (Para 9), Jagadeesachandran Nair v. Mamomohanan Pandarathil, 2013 (4) KLT 584 (para 11) were referred to in Harrisons Malayalam Limited v. State of Kerala, Represented By The Chief Secretary, 2018-2 KHC 719; 2018-2 KLT 369 (para 54).

A Tenant Cannot Declare Himself to be a Tenant and Avail Benefits under KLR Act

The competent statutory authority to determine tenancy under the KLR Act is the Land Tribunal.
Land Board or Taluk Land Board deals with exemption on the ground of plantation, excess land issues etc. It cannot adjudicate on tenancy right or title.

Land Tribunal to go into the question of tenancy

In Ganapathy Acharya v. Bhaskaran (TLV Iyer, J.), ILR 1993-3 (Ker) 736

“If there is dispute on any of these points necessarily the Land Tribunal has to go into the question of possession and the alleged tenancy”.

Balanoor Plantations Case – Based on the Principle LT to fix Tenancy’; TLB to Fix Plantation Exemption.

In Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, it is pronounced that the tenants who have not approached the Land Tribunal and established rights as “cultivating tenant” are not entitled to avail benefits on “Fixity of Tenure”, under Kerala Land Reforms Act, 1963.

It is pointed out – when a title claim is raised by the Government or the Devaswom, the person who claims to be a cultivating tenant –

“will have to first prove their claim of being a cultivating tenant, entitled to fixity of tenure, under the provisions of the KLR Act through a proper process of law.“

It is held as under:

“This is pertinent because, under Section 72B(3) of the KLR Act, it is legally obligated on every cultivating tenant, entitled to assignment of right, title and interest in respect of any property, to apply to the Land Tribunal, within whose jurisdiction that the property is situated, within two years from the date of vesting of such title and interest.”

It is based upon the following principles of law:

It is for adjudicating the ‘tenancy right’, by the Land Tribunal – for, the Land Tribunal is the only authority that can decide on the “tenancy right.” (It is the principle applied in the Balanoor case.)
Note: A tenant cannot declare himself to be a cultivating-tenant and avail benefits – the competent statutory authority (for the same) under the KLR Act is the Land Tribunal.
Land Board or Taluk Land Board (deals with exemption on the ground of plantation, excess land issues etc.) cannot adjudicate on tenancy right.

Cultivating Tenants (‘Entitled to Assignment’) are Obligated to Apply LT

Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, it was laid down that only cultivating tenants, entitled to fixity of tenure under Section 13 of the Kerala Land Reforms Act, 1963, would be “entitled to hold possession over the property and to resist action under the KLC Act”.

Sec. 72B provides for cultivating tenant’s rights to get an assignment by purchase certificate (through LT) – within the ceiling area. A Tenant was “obligated to apply” for the purchase certificate within 2 years from 1-1-1970.

Sec. 73B(3) reads as under:

“(3) Any cultivating tenant entitled to assignment of the right, title and interest in respect of a holding or part of a holding under Subsection (1) may apply to the Land Tribunal within whose jurisdiction such holding or part is situate within two years from the date of vesting of such right, title and interest in the Government under Section 72, or such further time as may be allowed by the Government in this behalf, for such assignment to him.”

Referrence to the Land Tribunal, under Section 125(3)

On the basis of the Full Bench decision in Lissy v. Kuttan, 1976 KLT 571, it was argued in Balanoor Plantations & Industries Ltd. v. State of Kerala that a person who claims to be a cultivating tenant, entitled to fixity of tenure under Section 13 of the KLR Act, the Civil Courts are prohibited from considering such issues and the matter has to be referred to the Land Tribunal, under Section 125(3) of the KLR Act. It is pointed out in this decision that the judgment in Lissy v. Kuttan had been overruled by a Larger Bench in Kesava Bhat v. Subraya Bhat, 1979 KLT 766. It was held in Balanoor Plantations as under:

“11…. Unless the question actually “arises” for consideration, there is no obligation under S. 125 (3) to make a reference to the Land Tribunal. The mere incorporation of an unnecessary or irrelevant plea of tenancy into the written statement which has no relation whatever to the material averments and the reliefs sought in plaint, cannot attract the bar of S. 125 (1), or the provisions of S. 125 (3 ). ….. It is only if the question arises for consideration that the obligation to refer under S. 125 (3) also arises. …..”

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General

Registration of a Document Relates Back to the Date when it was Executed

Saji Koduvath, Advocate, Kottayam

Section 47 of The Registration Act, 1908 reads thus:
“47. Time from which registered document operates – A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.”

Legal effect of Section 47 Registration Act

The Constitution Bench in Ram Saran Lall v. Domini Kuer, AIR 1961 SC 1747 considered Section 47 of The Registration Act and observed to the following effect:

A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been made. That is, it has nothing to do with the completion of the registration.
It applies to a document only after it has been registered.
In the same way it has nothing to do with the completion of the registration, it has nothing to do with the completion of a sale when the instrument is one of sale.
A sale which is admittedly not completed until the registration of the instrument of sale is completed, cannot be said to have been completed earlier.

The Supreme Court held as under:

“8. We do not think that the learned Attorney-General’s contention is well founded. We will assume that the learned Attorney-General’s construction of the instrument of sale that the property was intended to pass under it on the date of the instrument is correct. Section 47 of the Registration Act does not, however, say when a sale would be deemed to be complete. It only permits a document when registered, to operate from a certain date which may be earlier than the date when it was registered. The object of this section is to decide which of two or more registered instruments in respect of the same property is to have effect. The section applies to a document only after it has been registered. It has nothing to do with the completion of the registration and therefore nothing to do with the completion of a sale when the instrument is one of sale. A sale which is admittedly not completed until the registration of the instrument of sale is completed, cannot be said to have been completed earlier because by virtue of Section 47 the instrument by which it is effected, after it has been registered, commences to operate from an earlier date. Therefore we do not think that the sale in this case can be said, in view of Section 47, to have been completed on January 31, 1946. The view that we have taken of Section 47 of the Registration Act seems to have been taken in Tilakdhari Singh vs. Gour Narain, AIR 1921 Pat. 150. We believe that the same view was expressed in Nareshchandra Datta vs. Gireeshchandra Das, (1935) ILR 62 Cal. 979 and Gobardhan Bar vs. Guna Dhar Bar, ILR (1940) II Cal. 270.”

In Kanwar Raj Singh v. Gejo, AIR 2024 SC 238; 2024-2 SCC 416, it is observed as under:

“6. On plain reading of Section 47, it provides that a registered document shall operate from the time from which it would have commenced to operate if no registration thereof was required. Thus, when a compulsorily registerable document is registered according to the Registration Act, it can operate from a date before the date of its registration. The date of the operation will depend on the nature of the transaction. If, in a given case, a sale deed is executed and the entire agreed consideration is paid on or before execution of the sale deed, after it is registered, it will operate from the date of its execution. The reason is that if its registration was not required, it would have operated from the date of its execution.”

In Vasudha Gupta v. Delhi Development Authority, 215 (2014) DLT 711, it is pointed out as under:

“Section 23 of the Registration Act, 1908, clearly lays down that a document which is required to be registered must be done so within a period of four months.
Section 47 of the Registration Act, 1908, lays down that once the registration of a document takes place, it relates back to the date when the document was executed meaning thereby that in the instant case, although the document was registered on 13.10.2011, but it could not be said that the document became operative only on 03.10.2011. On the contrary, a combined reading of the aforesaid two sections will clearly show that not only the executants of a document is given four months time to get the document registered with the Sub Registrar but also that once the said document is registered, it relates back to the date when the same was executed.”

Plea of Easement by Express Grant and Easement of Necessity: Mutually Exclusive and Destructive

If claimed in the alternative, confine to one at least at trial.

Saji Koduvath, Advocate, Kottayam

Abstract

•• Distinct Legal Origins: The legal foundations for an easement by express grant and an easement of necessity are distinct. An easement of necessity under Section 13 of the Indian Easements Act, 1882 arises solely from absolute necessity (i.e., having no other access). An easement by grant is governed exclusively by the contractual terms.

•• Precarious Nature & Precise Pleadings: An easement is a precarious, special right claimed over another’s property; therefore the pleadings thereof must be precise. While a plaintiff pleads both express grant and necessity as alternative claims, they being mutually destructive, the plaintiff must elect and confine the claim to one before trial commences.

•• Extinguishment Mechanisms: An easement of necessity automatically terminates under Section 41 of the Indian Easements Act, 1882 once the absolute necessity ends. Conversely, an easement by express grant is not governed by Section 41 and terminates strictly in accordance with its contractual terms.

•• As illustrated under Section 41, purchase of land “over which he can pass” extincts easement of necessity (even if the way is not actually made).

Easement By Express Grant and Necessity: Distinguished

In Hero Vinoth v. Seshammal (2006) 5 SCC 545, the Supreme Court distinguished an easement by grant from an easement of necessity, laying down the following principles:

Nature of Acquisition: The character of an easement is determined strictly by how it was acquired.
Necessity Does Not Alter Grant: An easement acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement, but that does not convert it into an easement of necessity under Section 13.
Governance by Contract: A grant is governed exclusively by its own terms and conditions.
Scope of Extinguishment: Section 41 of the Indian Easements Act—which extinguishes an easement when necessity ceases—applies solely to an easement of necessity under Section 13, not to an easement by grant.

Easement By Express Grant and Necessity: Both Cannot Co-exist

The source of the legal right of easement by necessity is absolute necessity arising out of ‘no-other-way’. Easement acquired by grant is controlled only by the terms of the contract.

Both these rights cannot co-exist. They are mutually exclusive. Both have distinct legal bases. If a granted contractual way is pleaded, an easement of necessity does not arise. That is, the legal requirement of necessity ceases (even if assumed to have been there, otherwise) when a way is acquired by express grant.

In Hero Vinoth v. Seshammal, (2006) 5 SCC 545, the Supreme Court held to the following effect:

“But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not anything else. Easement of necessity and quasi easement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant in this case that it was to continue only until such time as the necessity was absolute. In fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognized and the servient tenement will be recognized and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Section 13 nor is it extinguished by the statutory provision under Section 41 of the Act which is applicable only to easement of necessity arising under Section 13 .
An easement by grant does not get extinguished under Section 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case.”

In K. Krishnamoorthy v Nagammal, 2015-1 CTC 417 ; 2015-1 LW 570, it is held as under:

19. … Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right.
20. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant…..”

In Joy Joseph v. Jose Jacob, 2010(4) KHC 167, it was held as under:

“As already mentioned, the defendants who are the appellants herein claim a right to use the pathway by way of easement by necessity and prescriptive right of easement. First of all both these cannot go together. While easement of necessity has its origin in a statute, the right of way by easement by prescription is the result of continuous and hostile use to the knowledge of the other person.” (Quoted in: Kallen Devi v. Raghavan, 2012 4 CurCC 520)

Purchase of Land “over which he can pass“ Extincts Easement of Necessity

Section 41 of the Easements Act reads as under:

“41. Extinction on termination of necessity. An easement of necessity is extinguished when the necessity comes to an end.
Illustration: A grants B a field inaccessible except by passing over A’s adjoining land. B afterwards purchases a part of that land over which he can pass to his field. The right of way over A’s land, which B had acquired, is extinguished.”

From the above, the following propositions emerge:

Duration of Right: An easement of necessity, arising by implication of law, lasts only as long as the absolute necessity exists.
Extinguishment by Alternate Access: The easement automatically stands extinguished—and the burden on the servient tenement ceases—the moment an alternate access becomes available.
Application of the Statutory Illustration: As illustrated under Section 41, if the dominant owner acquires adjoining land over which access to their property can be obtained, the existing easement of necessity is extinguished.
Availability v. Actual Construction: It is not necessary that a functional pathway has already been laid through the newly acquired land; if such a way can be made, the absolute necessity ends, thereby terminating the easement.

Easement is a Precarious Right. Its Pleadings should be Precise

The right of easement is claimed over a land of another. Therefore the pleadings of easement should be precise.

In Ibrahimkutty v. Abdul Rahmankunju, 1992(2) KLT 775, the Kerala High Court pointed out –

“The ‘Easement’ is a precarious and special right. The right of easement is one which a person claims over a land which is not his own. Since the right of easement is a precarious and special right claimed over the land of another, it is highly essential that the pleadings should be precise.”

Easement By Express Grant and Necessity: Can be Claimed Alternatively

A litigant in a suit is entitled to plead alternative claims of easement by express grant and easement of necessity. Thomas P. Joseph, J., held in Krishnankutty Nair v. Murukesh Kumar (RSA No. 1394 of 2011 of the Kerala High Court, 30-01-2012, as under:

“There could be no much dispute that a claim of easement by way of grant and by way of necessity cannot run together. But, it is open to the respondent/plaintiff to raise inconsistent pleas, the only thing being that when it comes to evidence, he must confine his claim to either of the two. In this case, evidence shows that respondent elected to claim easement by way of necessity and proceeded in that way.”

Even if a plaintiff may plead and claim both rights in the alternative, he must confine his claim to one before trial begins. Since one right arises from contract and the other is a statutorily recognised right, they are mutually destructive and cannot coexist during trial.

If Both Rights Pleaded, Confine to One at the Trial

The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. If both express grant and easement of necessity are claimed in the same suit, the court may adopt one of the following three positions:

(i) Reject both claims (if the party fails to elect): Discarding them on the ground that mutually destructive rights cannot co-exist in trial.
(ii) Proceed on the implied choice: Treating the claim that has been actively asserted or supported as the one opted by the party.
(iii) Proceed on the express election: Adjudicating the claim explicitly chosen and opted by the party prior to trial.

Both rights will not coexist because the easement of necessity will be extinguished when the necessity comes to an end as per Section 41 of the Indian Easement Act (See: R. Paramasivan v. T. Anasuya, AIR 2005 Kar 240).

Co-Ownership, and ‘Animus’ to Easement of Necessity

To establish the prescriptive right, one must prove that he was exercising that right on a property treating it as property of someone else. (Chapsibhai Dhanjibhai Dand v. Purushottam, AIR 1971 SC 1878).

In Palaniswami Naicker v. Chinnaswami Naciker, (1968)1 MLJ. 582, it was held as under:

“Therefore, the question of animus plays an important part in the acquisition of easement. If, even at the time of the trial, the plaintiff was proceeding on the basis that he is the owner of the land CDEF, he cannot be said to have had the requisite animus of enjoying the easement in the defendants land as he had always been conscious of his ownership of the land.”

Claim of Common Passage;Alternatively, Easement by Necessity: Not Contradictory

In Dhanu Pandaram v. Kali Pandaram, 1999 2 LW 317; 1999 2 MLJ 242, the plaintiff was the co-owner claiming right of common passage and in alternative, he claimed easementary right by necessity. It is held that the plea was neither contradictory to each other nor inconsistent mutually, and found that the plaintiff is entitled to right of easement by necessity.

Neighbours: Impossible to Know he was Not the Owner, Inconsistent Claims Sustainable

Sanjiva Rows ‘Commentaries on Basements and Licneces’ gives the answer. It reads as under:

“No plaintiff can be allowed to take the impossible position of being the owner of and of having an simultaneous right of easement over the same land. Inconsistent claims may, therefore, under the peculiar circumstances, be explained and accounted for. The parties were close neighbours. It was impossible for the plaintiff not to have known that he was not the owner of the property in dispute. The reliefs based upon ownership and upon the right of easement were not claimed simultaneous but in the alternative. This view is supported in principle by a Full Bench decision of the Madras High Court in Subba Rao v. Lakshmana Rao I.L.R. 49 Mad. 820 in which the facts were somewhat different.” (quoted in: Dhanu Pandaram v. Kali Pandaram, 1999-2 LW 317; 1999 2 MLJ 242)

Mutually Inconsistent Pleas (easement and title) will Not Sustain

In Arunachalam Pillai v. Sorimuthu Pillai, AIR 2004 Mad 185, it is held as under:

“The plaintiff cannot be permitted to raise inconsistent pleas. To claim easement, the plaintiff must admit the title of the defendant over the property. If the plaintiff claims easementary right that must be proved by sufficient evidence by the plaintiff.
When the plaintiff admits that he claimed ownership and not easement and if he fails to prove ownership, he cannot be allowed to prove easementary right.
Ownership and easement are mutually exclusive.
Both cannot be pleaded.
Therefore, when the plaintiff claimed ownership, he gives up the plea of easementary right.
Ultimately, when the plaintiff failed to prove ownership, he cannot revive the plea of easement. In such circumstances, the plaintiff is not entitled for any relief.”

The following decisions support this view:

S. Tirupathi Rao v. M. Lingamaiah, AIR 2024 SC 3738; 2024-20 SCC 188: Absolute title by escheat and that on the basis of revenue entries.
Sammanasu v. M. Cashmir, 2024 Mad HC 2973: title and claim of easement are mutually destructive in nature.
Bachhaj Nahar v. Nilima Mandal, (2008)17 SCC 491: The High Court could not have converted a suit for title into a suit for enforcement of an easementary right.
Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693: Alternative pleas cannot be mutually destructive of each other.
L.N. Aswathama v. P. Prakash, (2009) 13 SCC 229: Pleas based on title and adverse possession are mutually (destructive) and the latter does not begin to operate until the former is renounced.
Arunachalam Pillai v. Sorimuthu Pillai, AIR 2004 Mad 185: Ownership and easement are mutually ex exclusive.
Chapsibhai Dhanjibhai Danad v. Purushottam reported in 1971-2 SCC 205: held that a party to a Suit can plead inconsistent plea in the alternative such as the right of ownership and a right of easement.
Rayachand Vanmalidas v. Maneklal Mansukhbai, AIR 1946 Bom. 266: It is open to a party in a litigation to raise inconsistent pleas of ownership and easement in the alternative.
- See also: Purani Dhirajlal Amritlal v. Mehta Sankleshwar, Aditram, AIR 1976 Guj. 180.
- Elumalai Chetty v. Naina Mudali, AIR 1987 Mad 102
- Sadhurajan v. Sriramulu Naidu, AIR 1999 Mad 377
- P. Chandrasekharan v. S.Kanakarajan, AIR 2007 SC 2306.

End Notes:

What is GRANT in Law of Easement

1. “Basis of Every Right of Easement is Grant”

The Indian Easements Act, 1882 refers to the different methods by which easements are acquired. They are pointed out (Ramkanya Bai v. Jagdish, AIR 2011 SC 3258) to be the following:

easements by grant: express grant by the owner of the servient heritage
easements of necessity: based on implied grants or reservations made by the owner of a servient heritage at the time of transfers or partitions
easements by prescription: it is presumed that it is acquired by peaceable and open enjoyment, without interruption for twenty years and
customary easements: it is inferred that it is acquired by virtue of a local custom.

The origin of all easements is, theoretically, grant by the servient owner. It may be express or implied. It may also be presumed from long user.

For easement by prescription, it is not necessary that the user should be exclusive (of others), but the claimant should exercise it under some claim existing in his own favour independently of all others.

In Lachhi v. Ghansara Singh, AIR 1972 HP 89, it is held as under:

“The basis of every right of easement by whatsoever method it may have been acquired, is theoretically a grant from the servient-owner.
- It may be expressed, as is mentioned in Sections 8 to 12 of the Act, orit may be implied from the circumstances as in Section 13 of the Act. orit may be presumed from long and continued user for a certain period as in Section 15 of the Act, or
- it may be inferred from a long and continued practice of user by a certain class of the public in certain locality.”

2. Grant may be Express or “Implied“

The origin of all easements is, theoretically, grant by the servient owner. It may be express or implied. It may also be presumed from long user.

Note: Traditionally, the term ‘implied easement’ was used by the conventional authorities only to denote ‘easement of necessity‘. However, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, the Supreme Court used the same to refer to an easement of grant ‘arising by implication‘.

It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, as under:

“13. On the question of easement by grant, the Appellate Court was of the opinion that the plaintiff’s claim in that respect stood proved. The plaintiff had acquaintance and association with the Ashramam and Yogini Amma from his childhood days as revealed from the oral and documentary evidence. Considering the location and nature of `B’ schedule pathway, the location of two pillars at its inception and the gate from which it started, it could be seen that it had been in use by the 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 Appellate Authority arrived at the conclusion that the plaintiff had obtained right of easement of grant from Yogini Amma over the `B’ schedule pathway.
An 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 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 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.”

The aforesaid Supreme Court decision (Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622) arose from the Kerala High Court decision, Sree Swyam Prakash Ashramam v. N. Gopala Pillai on 9 May, 2006. It was affirmed by the Supreme Court. The Kerala High Court held as under:

“Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user. In the case of an express grant of easement the limit thereof depends on the words used.”

Upholding the view of the Kerala High Court the Apex Court held as under:

“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.”

Also read: Implied Grant: A Valid Mode of Creation of Easement under Indian Law

3. No Explicit ‘Consideration’ Required for Easement by Grant

Neither the provisions of the enacted law (Easements Act, 1882) nor judicial decisions specifically address the requirement of ‘consideration’ in the creation of easements by grant. This omission is understandable, as Indian law clearly permits the acquisition of easements by grant – both express and implied. Since an easement may arise by implication, and the intention to grant can be inferred from the terms of the grant or the surrounding circumstances, the fundamental principle of easement law – that every easement is, in theory, rooted in a grant – supports the conclusion that no express consideration is required for the creation of an easement by grant.

4. Sec. 8 of the Indian Easements Act reads:

“An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or, on his behalf, by any person in possession of the same.”

Sec. 13 further elaborates on easements of necessity and quasi-easements, indicating that such easements can arise from the transfer or bequest of immovable property, again without a requirement for consideration.

In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, the Supreme Court held:

“Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user.”

Consideration is not an essential element for easement of grant. In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, the Supreme Court held 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).

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Specific Relief Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General