Whether existence of an alternative track, though inconvenient, shall defeat claim of easement of necessity?

Property - Right of easement of necessity - First Appellate Court held that Appellant-Plaintiff could not restrain Respondent-Defendant from passing over north east open space to have access to northern public lane - Hence, this Appeal - Whether, Defendant could establish that on partition of plot between Smt. Ashakkabai and Smt. Mankuwarbai he had right to have access to northern public lane through open space in front of house of Plaintiff by way of easement of necessity or under any express grant - Held, case set up by Defendant of acquiring right of passage over Suit site by grant was not established - Further, there being public lane along southern boundary of Defendant's house, no case of easement of necessity could be made out - Defendant tried to set up case that since time of partition it was decided between parties to use northern open space or in other words northern side which was apart from fact that none other than Defendant himself admitted in his written statement that there was bamboo mat fencing dividing properties - Hence, Defendant had failed to demonstrate that property in his possession could not at all be used unless he was allowed to have access through Suit site - Thus, easement of necessity much less absolute necessity had not at all been proved by Defendant - Therefore, Defendant had failed to prove that he acquired right over Suit site by way of prescription or there was absolute necessity to pass over same for having access to his property and neither express nor implied grant in his favour had been established - Appeal allowed.

"Existence of an alternative track, though inconvenient, shall defeat claim of easement of necessity, as necessity shall be absolute."

Bombay High Court

Gulabrao vs Pandurang on 27 July, 2012

Bench: M.N. Gilani

Citation;2012(7) ALLMR 191
               

1. This appeal is directed against the judgment and decree dated 17/10/1994 passed by Additional District Judge, Yavatmal in Regular Civil Appeal No.57/1992 thereby partly modifying the decree passed by the Civil Judge Junior Division, Kelapur in Regular Civil Suit No.166/1985.

2. Smt. Ashakkabai and Smt. Mankuwarbai were closed friends.

The open plot (admeasuring east-west north side 92 feet, southern side 90 feet, north south eastern side 60 feet and western side 46 feet) and structure (house - admeasuring 34 feet north - south and 27 feet east - west) standing thereon (for short "suit property") shown by letters "ABCDE" in the plaint map was jointly purchased by them in a court auction. Thereafter, they made east west division of the plot. Northern side came to the share of Ashakkabai and southern share came to the share of Mankuwarbai. On 1/3/1972, Ashakkabai sold the northern share of her ownership to plaintiff. In the year 1958, Smt. Mankuwarbai gifted her share in the plot to Dwarkaprasad Maheshwari. She died in the year 1968. Dwarkaprasad then executed an agreement of sale in favour of Namdeo, the brother of defendant, and placed him in possession of the southern portion of the plot. The defendant claims ownership of the plot through his brother Namdeo. In between two portion of the plot there was bamboo mat fencing.

3. The plaintiff filed the suit alleging that the defendant encroached over his plot and constructed small bathroom and also a cattle shed. He, therefore, issued notice which was replied by the defendant. It was further alleged that the defendant started using northern entrance gate to have access to the public lane although he had an entrance to the southern side public lane.

4. The defendant resisted the suit. Averments that Smt. Ashakkabai and Smt. Mankuwarbai had jointly purchased the plot in a court auction were not denied. The division of the plot between these two original owners is also not denied. According to him, big tin shed called as Bunda was equally divided and open space in the east north corner was kept in joint use of the occupants of southern and northern plots. Smt. Mankuwarbai had a right to access to the north side public lane through the open space left out on north east corner. She was also using the wall which is on the north side. Inter alia, the defendant cast aspersions on the plaintiff and pleaded that the plaintiff practiced fraud while getting the sale deed executed from Smt. Ashakkabai and as such no title is conferred upon him.

5. The Trial Judge framed as many as 6 issues. Parties entered the witness box and examined their witnesses. During trial, the Commissioner was also appointed to visit the spot. The map drawn by the Commissioner is placed on record. After appreciating the evidence, the learned Trial Court held that the defendant had encroached over the suit plot owned by the plaintiff. It was further held that the defendant has no right to pass over the open space on north east corner to have access to the public lane. Thus, the defendant was directed to hand over the encroached portion of the plot after removing the construction made thereon.

Defendant was further restrained from using the northern gate just in front of the house of plaintiff to have access to the public lane.

6. The defendant filed appeal being Regular Civil Appeal No. 57/1992. The learned First Appellate Court confirmed the decree directing the defendant to remove the encroachment. However, on the point of right of defendant to use the open space in front of the house of plaintiff, the First Appellate Court differed with the Trial Court. In turn, it was held that the plaintiff cannot restrain the defendant from passing over the north east open space to have access to the northern public lane. In that view of the matter, the decree was modified. The relief of permanent injunction restraining the defendant from using or passing over the lane in front of the house of plaintiff by entering through the northern gate was set aside.

This part of relief granted by the First Appellate Court is the subject matter of challenge in this second appeal.

7. This Court has admitted the first appeal vide order dated 13/9/1995 by formulated the following substantial question of law :

"Whether the appellate court could have found out the easement by prescription in favour of defendant in the absence of any pleading in the written statement in that behalf, and refused the mandatory injunction ?"

After perusing the record and hearing the parties, it appears that because of partition of the tenements the issue involved in this second appeal is of 'easement of necessity' or in the alternative the issue of 'easement by express grant' particularly, considering the pleading of the defendant. Therefore, I proceed to formulate the following additional substantial question of law :

"1-A Whether the defendant could establish that on partition of the plot between Smt. Ashakkabai and Smt. Mankuwarbai he had a right to have access to the northern public lane through the open space (north - east corner) in front of the house of the plaintiff by way of easement of necessity or under any express grant ?"

8. Mr. Agrawal, learned counsel for the appellant, contended that there are no specific averments in the written statement demonstrating as to how defendant got right to pass over the suit land.

The fact that the access from the land of the plaintiff was used as of right for last 20 years and thus such right has been acquired by prescription does not find place in the written statement, he urged. In support of this contention, he relied upon the decision in case of Justiniano Antao & Ors.

V/s. Smt. Bernadette B. Pereira reported in 2005 (5) ALL MR (S.C.) 135.

The objection raised by the learned counsel for the appellant is not significant for the reason that the defendant did not set up a case of acquiring the right to pass over the land of plaintiff by way of prescription.

The case set up by the defendant is based upon 'easement of necessity' which accrues to the tenement when a partition is made of joint property as provided under section 13 (e) of the Indian Easement Act, 1980.

Clauses (e), (f) and the note below it being relevant are reproduced hereunder :

"(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or

(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.

The easements mentioned in this section, Cls. (a), (c) and

(e), are called easements of necessity."

9. Admittedly, the right of way is neither apparent nor continuous easement as defined under section 5 of the Act. Gist of the pleadings of the defendant is that Smt. Ashakkabai and Mankuwarbai were closed friends. They acquired the entire plot in a court auction in equal rights. The open site shown by letters "MNOP" and the tin shed shown by letters "AOPF" in the map annexed to the written statement fell to the share of Mankuwarbai whereas the remaining northern portion fell to the share of Ashakkabai. In addition to this, Mankuwarbai had a right of access to her property through the northern east corner and also right to the well which is also to the northern part of the site. It is categorically pleaded and for better appreciation it is reproduced as under :

"As per this division referred above Mankuarbai was in possession of the property shown by letters MNOP and AOPF in the map filed by the defendant. Mankuarbai was using the well water and access from northern east corner to her property as per the division between Ashakkabai and Mankuarbai. Mankuarbai died in the year 1968."

10. It is thus obvious that the defendant claims ownership over the property described by letters "MNOP" and "AOPF". No ownership is claimed over the north eastern open space i.e. disputed site. It is relevant to add here that the decree passed by the Trial Court directing the defendant to remove the encroachment over the suit site admeasuring about 20 feet x 15 feet has been confirmed by the Appellate Court. The defendant did not challenge this any further and as such this has reached the finality.

11. Now, I shall refer to the evidence led by the parties. The plaintiff entered the witness box. To prove his title he relied upon the sale deed dated 1/3/1972 executed by Ashakkabai in his favour. The perusal of the sale deed shows that there is no mention about the defendant having any way through the suit site. In cross examination, he admitted that the suit site was used by the defendant for having access to his house since the year 1977. The suit was filed on 29/10/1985. His other witness is Gulabrao (P.W.2). According to him, the plaintiff acquired title to his house from Ashakkabai. Prior to that, Ashakkabai and Mankuwarbai were enjoying their shares separately and their courtyards were divided by bamboo sheet partition. In para 3 of the writtenstatement the defendant has categorically admitted this position. It being relevant is reproduced thus : "It is true that there was fencing between the plot of plaintiff's vendor Ashakkabai and Mankuarbai. It is denied that there was separate entrance gate from the south side to the plot and house property of Mankuarbai." However, he admits that the well which is to the north side was being used by both Mankuwarbai and Ashakkabai for fetching water. The defendant entered the witness box. According to him, he got possession of the plot and the house in the year 1969 on the basis of the agreement of sale. According to him, the sale deed was executed in 1989. It is pertinent to note that no documentary evidence was produced by the defendant either in the nature of agreement of sale or the sale deed. In fact, it was pleaded that Mankuwarbai died in the year 1968.

Prior to that, she had gifted her property to one Dwarkaprasad Maheshwari r/o Jalgaon. Since 1968 said Dwarkaprasad was in possession of the property. Then Dwarkaprasad entered into an agreement of sale with his brother by name Namdeo. Thus, Namdeo acquired possession of the property under agreement of sale. Thereafter Namdeo placed the defendant in possession of the said property. It is further mentioned that till date i.e. till filing of the written statement on 17/4/1986 no sale deed was executed by Dwarkaprasad either in his favour or in favour of Namdeo. The relevant admission in his cross examination is : "gs Eg.k.ks cjkscj vkgs dh 1972 P;k lkyk iwohZ oknhus tkxk fodr ?ksryh R;k tkxsoj R;kaP;k iwohZ vk'kDdkckbZpk rkck o okij gksrk-" The defendant's witness Narayan (D.W.2) deposed that Mankuwarbai and Ashakkabai had divided the property. The northern portion fell to the share of Ashakkabai and southern share fell to the share of Mankuwarbai. Then he added that Ashakkabai and Mankuwarbai both were using common way i.e. from the northern side. This witness has referred to the suit site as common way. In cross examination, he admits that there was fencing in the courtyard.

Other witness is Ramdas (D.W.3). He also stated that both the earlier owners had a common way through the northern side. Then the relevant admission is that there was a fencing of bamboo mat between these two properties.

12. From the map drawn by the Commissioner which is at Exh.55 and the plaint map it is evident that to the northern side there is a public lane and similarly to the south there is a public lane. There is evidence to the effect that the defendant had installed a floor mill in his property and thereafter he constructed the rooms which was let out to the tenants.

This oral evidence adduced by the parties, map drawn by the Commissioner (Exh.55), and the plaint map show that to the southern side of defendant's property there is a public lane and similarly to the northern side of plaintiff's house there is a public lane.

13. An easement of necessity is an easement, which under particular circumstances, the law creates by virtue of doctrine of implied grant to meet the necessity of particular case. It is an easement which is not merely necessary for the reasonable enjoyment of the tenement but one without which that tenement cannot be used at all. To claim right of way as an 'easement of necessity' it has to be established that there are no alternative means of access how so ever inconvenient those may be. The expression "necessity" clearly implies that it is not a rule of convenience.

The relevant pleadings in the written statement, which has already been reproduced, would reveal that there has been no pleadings to this effect.

Further, there being a public lane along the southern boundary of the defendant's house, no case of easement of necessity can be made out. In stead of pleading and proving the same, the defendant tried to set up a case that since the time of partition it was decided between the parties to use northern open space or in other words northern side i.e. suit site was kept in common. This is apart from the fact that none other than the defendant himself admitted in his written statement that there was a bamboo mat fencing dividing the properties. It is thus obvious that the defendant has failed to demonstrate that the property in his possession cannot at all be used unless he is allowed to have access through the suit site. Thus, the 'easement of necessity' much less 'absolute necessity' has not at all been proved.

In case of Kirpa and others V/s. Deviditta and others reported in AIR 1953 H.P. 23 it is held that :

"An easement of necessity is not to be granted merely on the ground of convenience and advantage, but solely on the ground of absolute necessity. When thee are other ways of ingress and exit, an easement of necessity cannot be claimed merely on the ground that such ways are inconvenient."

In case of Thottathil Thamasikkum Cherootty alias Balan V/s.

Puliyaratharayil Velayudhan Nair reported in AIR 1998 Kerala 164 it has been held that :

"It is the settled law that existence of an alternative track, though inconvenient, will defeat the claim of easement of necessity, as the necessity must be absolute."

14. It is pertinent to note that in the judgment of First Appellate Court there is no whisper about the defendant fulfilling requirements to establish easement of necessity. It seems that on the basis of the evidence that the defendant in past had been using the open space to have access to his house weighed with the learned First Appellate Court while reversing the finding recorded by the Trial Court.

15. Alternative case set up by the defendant of acquiring the right of passage over the suit site by grant is not established. Issue of grant is a matter of contract between the parties and accordingly they are covered by the terms of the grant and not anything else. It may be express or even by necessary implication. The limit of the easement acquired by grant is controlled only by the terms of the contract. Anyhow the scope of the grant could be determined by the terms of the grant between the parties alone. Now, question that falls for consideration is what evidence the defendant has adduced to prove that there was either implied or express grant in his favour. In the sale deed executed by Ashakkabai (Exh.38) there is no mention of Mankuwarbai or her successor in title having right over the suit site either for having access to the northern public lane or for any other purpose. The defendant though claims that Mankuwarbai had gifted the property to Dwarkaprasad Maheshwari and from the said Dwarkaprasad his brother Namdeo purchased the property, no document has been produced on record in this regard. Moreover, Dwarkaprasad and Namdeo are not his witnesses. Added to this, is an admission by the defendant that there is a bamboo mat fencing dividing the courtyards of both the properties. All these relevant aspects were not considered by the First Appellate Court while interfering with the judgment and decree passed by the learned Trial Court. Thus, this is a case where the defendant has failed to prove that he acquired the right over the suit site by way of prescription or there is absolute necessity to pass over the same for having access to his property. Similarly, neither the express nor implied grant in his favour has been established.

16. For the aforestated reasons, the appeal is allowed.

17. The judgment and decree passed by the First Appellate Court is set aside and the judgment and decree passed by the Trial Court is restored.

Parties are left to bear their own costs.

JUDGE Tambaskar.

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