JUDGMENT RSA No.1334/2011 1. The question involved in this Regular Second Appeal is whether the Servient owner has right to seek for shifting of easement to another part of the Servient Heritage for the convenient use of the Servient Heritage, in view of Section 22 of the Indian Easement Act, 1882 . 2. The appellant is the 1 st plaintiff in the suit. The second plaintiff is her son. They are the owners of the Servient Heritage. The defendants are the owners of Dominant Heritage, having right of way through Servient Heritage from the main road situated on the eastern boundary of Servient Heritage. The Dominant heritage is having an extent of 10 cents which is situated in the middle of Servient Heritage having an extent of 1.15 acres. Dominant Heritage is surrounded by Servient Heritage on its eastern, western and southern sides. Servient Heritage is assigned to the predecessor of the defendants - Kurumba from the plaintiffs by way of Kudikdappu. Excluding Dominant Heritage, the Servient Heritage has 1.05 acres of land, which is the plaint A schedule property. The way to the Dominant Heritage is through the middle of the eastern part of the Servient Heritage. According to the plaintiffs, the width of the way is three feet, and according to the defendants, it is four feet. The plaintiffs filed the suit to shift the way to the northern extremity of the Servient Heritage. A Way having a width of 3 feet in the northern extremity of the Servient Heritage is included in the Plaint B Schedule. 3. The suit was one for declaration and permanent prohibitory injunction and compensation. The prayers are to declare that plaint B schedule property is to be used by the defendants for their ingress and egress into their property, to restrain the defendants from trespassing into plaint A schedule property and committing any act of waste therein and to direct the defendants to pay Rs.500/- by way of damages. 4. The Defendants contended that the plaintiffs have no right to shift the pathway into the plaint B schedule pathway. 5. The Trial Court dismissed the suit finding that the plaintiffs have no right to shift the existing pathway into any other pathway because the defendants have got easement right of way through the existing pathway as per S.13 of the Easement Act. 5. The Trial Court dismissed the suit finding that the plaintiffs have no right to shift the existing pathway into any other pathway because the defendants have got easement right of way through the existing pathway as per S.13 of the Easement Act. The prohibitory injunction and the damages sought for were denied, finding that there is no proof in support of the same from the part of the plaintiffs. 6. The plaintiffs filed an Appeal before the First Appellate Court challenging the judgment and decree of the Trial Court. The First Appellate Court dismissed the appeal confirming the judgment and decree of the Trial Court finding that plaintiff do not have any right to shift the existing pathway to plaint B schedule pathway which is prohibited by S.23 of the Easement Act. 7. This Court had issued notice before admission on 24.02.2012 to the respondents. In spite of serving notice, the respondents did not appear. Thereafter, this court considered the matter for admission on 10.10.2024 and this Court admitted the Regular Second Appeal formulating the Substantial Question of Law. Since the appeal is of the year 2011, notice by Special Messenger was ordered to respondents 1 to 7 dispensing notice to the 8 th respondent who is the 2 nd plaintiff and son of the appellant/1 st plaintiff. Even after serving notice to the respondents again after admission of the Regular Second Appeal the respondents do not choose to appear. 8. Accordingly, I heard the learned Counsel for the appellant Sri. Sreekumar G (Chelur). Since there was no appearance for the respondents, learned counsel for the appellant took me to the question from every angle in order to assist the Court in laying down the law correctly. 9. Since the question involves the interpretation of Section 22 of the Easement Act, Section 22 with its Illustrations is extracted hereunder. 22.Exercise of easement. Confinement of exercise of easement.- The dominant owner must exercise his right in the mode which is least onerous to the servient owner; and, when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined. Illustrations (a) A has a right of way over B's field, A must enter the way at either end and not at any intermediate point. Illustrations (a) A has a right of way over B's field, A must enter the way at either end and not at any intermediate point. (b) A has a right annexed to his house to cut thatching grass in B's swamp. A when exercising his easement must cut the grass so that the plants may not be destroyed. 10. Section 22 contains two parts. The first part mandates that the Dominant Owner must exercise his right in the manner least onerous to the Servient Owner. Illustration (a) would illustrate that if a person is having right of way through another’s property, such person must enter the way at either end and not at any intermediate point. This illustration is made to illustrate as to how the burden on the Servient Heritage is be reduced for the use of Dominant Heritage. 11. Earlier, people used to walk through the vacant lands of others to reach their properties as a means of easy access, convenience, or necessity. Later, based on statutory provisions, such usage is ripened to easement, creating a burden on the properties. Nobody was much bothered about the easement rights burdened on their lands as large extents of vacant lands were available and were lying without any boundaries or enclosures. When the demand and value of the land were increased, people started thinking how to avoid or reduce the burden on their land and there arose large numbers of disputes on easement claims. Every landowner is interested to avoid or to reduce the burden on their land and to protect their properties from the trespass of others by enclosing it. It would be an injustice to ask the Servient Owner to keep his property open always in order to ensure the easement right of way of the Dominant Owner. Of course, if an easement right is there through the middle of a property, it would definitely divide the property into two parts and reduce its utility. If the Servient Owner is permitted to shift the easement to the side of his land maintaining the same convenience to the Dominant Owner, it would be definitely least onerous to the Servient Owner. It is a settled principle that law does not favour restrictions on the rights of property. The question is whether the law permits shifting of an easement. 12. It is a settled principle that law does not favour restrictions on the rights of property. The question is whether the law permits shifting of an easement. 12. The first part of Section 22 is enacted with the object that the easement right of the Dominant Owner shall be least onerous to the Servient Owner. The second part of Section 22 is enacted for achieving such an object by permitting the Servient Owner to confine the easement to a determinate part of Servient Heritage without detriment to the Dominant Owner. Section 22 refers to the easement, and hence, it could not be said that it is limited to easement right of way, though Illustration (a) refers to way. It can be an easement for flowing or draining water also and other types of easements. 13. I am quite aware that Section 23 which permits the Dominant Owner to alter the mode and place of enjoying easement would not enable the Dominant Owner of a right of way to vary the passage at his pleasure, even though he does not thereby impose any additional burden on the Servient Heritage, on account of the Exception Clause therein. It is clear from Section 23 that Section 23 is subject to the provisions of Section 22 and not vice versa. Section 23 does not in any way restrict or regulate the rights of Servient Owner in Section 22. 14. Section 22 clearly permits the Servient Owner to shift the easement to a convenient part of the Servient Heritage without reducing the utility and convenience of the easement of the Dominant Owner in any manner. Section 22 specifically provides for the confinement of the way to a determinate part of the Servient Heritage without detriment to the Dominant Owner. When a claim for shifting of an easement under Section 22 is brought before the Court, it is the duty of the Court to ensure that such shifting would not cause any prejudice, detriment, or inconvenience to the Dominant Owner when compared to the existing easement, while permitting shifting of an easement. The question of whether the shifting of the easement would cause any kind of prejudice, detriment, or inconvenience to the Dominant Owner is a question to be considered in light of the facts and circumstances of each case. The question of whether the shifting of the easement would cause any kind of prejudice, detriment, or inconvenience to the Dominant Owner is a question to be considered in light of the facts and circumstances of each case. Whether the lie of the properties would admit shifting of easement is also a material factor to be considered by the Court. Section 22 mandates that such shifting shall be for the purpose of reducing the burden of the Servient Heritage. Section 22 contemplates the identification of a determinate part for shifting the easement. In such case, it is always desirable to get a Survey Plan with the assistance of a qualified Surveyor for identifying the determinate part for shifting the easement in order to settle the dispute forever. 15. When the facts of the present case are considered, even shifting of Kudikidappu is permissible under S.75(2) and 77 of the Kerala Land Reforms Act, 1963 for the convenient use of the landowner. In such a case, there is no meaning in refusing the shifting of easement for the convenient use of the servient heritage without causing any detriment to the Dominant Owner. 16. S.33 and S.35 of the Easement Act, provides for the remedy on disturbance of easement. S.33 provides for compensation for disturbance of easement. S.35 provides for the injunction to restrain disturbance of easement subject to the provisions of the Specific Relief Act. There is no provision in the Easement Act, providing a remedy for seeking shifting of easement as provided under Section 22. In such case, the Servient Owners can seek the general remedies under the Specific Relief Act for necessary declaration and injunction and it is within the discretion of the Court to grant reliefs as provided under the Specific Relief Act. 17. Learned counsel for the appellant invited my attention to the decision of this Court in M/s.Ramapriya Hotel P.Ltd. and another v. Trivandrum Specialist Hospital P. Ltd., [AIR 2012 Kerala 136] in which learned Single Judge of this Court held that Section 22 of the Easement Act has no application to cases where the right of way over the premises of servient owner has been ascertained by express grant. In the light of the said decision, shifting of easement is not possible when the right of way is ascertained by express grant. In the light of the said decision, shifting of easement is not possible when the right of way is ascertained by express grant. Such a view is fully justified as ascertainment of the right of way provided by the express grant is done after considering the convenience of the parties, and it could not be shifted or changed without the consent of both parties. But in the case of easement by necessity or prescription, the same is evolved without considering the convenience of the parties, and in such case, it is well within the right of the Servient Owner to seek shifting of easement as and when required. Going by the wording of Section 22, only single confinement is permissible. Hence, the Servient owner cannot exercise his right for shifting the easement more than once. 18. In view of the aforesaid discussion, the finding of the Trial Court, as well as the First Appellate Court, that the plaintiffs have no right to shift easement, is illegal and unsustainable. I hold that the plaintiffs have every right to seek shifting of the easement to a convenient portion of the A schedule property subject to the satisfaction of the aforesaid conditions laid down in this judgment. The question of whether the aforesaid conditions are satisfied to enable the plaintiffs to claim shifting of easement is a matter for the Trial Court to consider in the light of the pleadings and evidence before it. Necessary pleadings and evidence in this regard are absent in this case. The matter requires remand to the Trial Court for ascertaining whether the plaintiffs are entitled for the reliefs sought for, in the light of the law laid down by this Court in this judgment. The parties are permitted to supplement their pleadings and evidence before the Trial Court. 19. The substantial question of law is answered in the affirmative and in favour of the appellant. 20. The Regular Second Appeal is allowed in part, without costs setting aside the judgments and decrees passed by the Trial Court as well as the First Appellate Court and remanding the matter back to the Trial Court for fresh consideration. 19. The substantial question of law is answered in the affirmative and in favour of the appellant. 20. The Regular Second Appeal is allowed in part, without costs setting aside the judgments and decrees passed by the Trial Court as well as the First Appellate Court and remanding the matter back to the Trial Court for fresh consideration. The Trial Court shall post the suit for the appearance of the plaintiffs on 28.03.2025 Since the respondents/defendants have not appeared in this Appeal, the Trial Court is directed to issue notice to the defendants afresh and proceed with the suit in accordance with law.