Dwijesh Ch. Dutta and Another vs Kalyani Das (Misra) and Others

The Appellants instituted Title Suit No. 25/85 against the Defendants and the members of the Sundari Mohan Seva Sadan Trust Board for declaration that since the time of their predecessors the Plaintiffs had absolute easement right to the path described in Schedule I and to the part thereof described in Schedule II of the plaint for passage of their men and carriages and that the Defendants had no right to hinder the Plaintiffs'' use of, or their passage along, that path; for declaration that the Defendants had no right to transform or block or deface either by dumping earth or in any other way the aforesaid path or part thereof; for confirmation of Plaintiffs'' possession of the suit path; for removal of the obstructions and delivery of khas possession of the path; and for injunction retraining the Defendants from transforming or obstructing the aforesaid path or part thereof.

The Plaintiffs'' case was that they purchased their homesteads in dags No. 400 and 385 of second R.S. Patta No. 59 under Pargana Barakpar, Mouza Tarapur Part II from Tek Bahadur, Ram Singha and others in 1953. The Chencoree Tea Company was the owner of the land and the Plaintiffs, as their predecessors, used to pay rent to the tea estate regularly. The suit path was the only path that connected the Plaintiffs'' homestead and the P.W.D. road. Their vendors used the path publicly, continuously and without any opposition for more than 20 years and the Plaintiffs had also been using the same path for passage of persons and carriages to and from the P.W.D. road to the north of their homestead and thereby they acquired easement right thereto. They further stated that the suit path was the only outlet from their residences to the P.W.D. road on the north and they claimed easement right over the path by virtue of their predecessors easement right and that the Defendants had no right to put any obstacles, block or deface or transform the said path or any part thereof. It was stated that a few years after the Plaintiffs purchased their homesteads, the Defendant No. 1 built her residence to the east of the path and had railed one pucca building named as ''Sundari Seva Bhavan'' with the help of Defendant No. 2, her employee and attempted to include the path into her compound, raised bamboo fence enclosing part of the path described in Schedule II thereby hindering Plaintiffs'' passage along the path.

The Defendants denied the allegations and stated that Defendant No. 1 was the owner and occupier of 10 Bighas of land in Dag No. 400 of the suit patta and constructed a two storied building for the Sundari Mohan Seva Sadan Hospital and also purchased 3 Bighas from Defendant No. 3 and had been in occupation of the said land and there was a path 2 cubits in breadth to the western side of the homestead exclusively used by the Defendants. In 1962 when the Defendant Nos. 1 and 10 were detained under the eleventive Detention Act, the Plaintiffs connected a path from their homestead with the said path by cutting a (Sic)la and also widened the same, but when Defendant 1 and 10 were released from detention they developed the said hospital and re-occupied their path which neither the Plaintiff nor their vendors had any right to use.

The learned trial court took the suit to be one for declaration of customary right of way in the suit path and framed the following issues:

(1) Is there any cause of action for the suit?

(2) Is the suit maintainable in its present form?

(3) Have the Plaintiffs acquired the right of easement as claimed?

(4) Does the suit suffer from defect of parties?

(5) To what relief, if any, are the Plaintiffs entitled to? At the trial the Plaintiffs examined 7, while the Defendants examined 2, witnesses. The trial court decided issue Nos. 1, 2 and 3 in favour of the Plaintiffs and hold that by virtue of their purchase the Plaintiffs acquired the customary right of way over the suit path and they had the cause of action for the suit which was maintainable; that the landlords were not necessary parties to the suit; and the Plaintiffs having acquired their easement right over the suit path, the Defendants were to remove all obstructions from the Schedule II part of the path and as a result the suit was decreed.

The Defendants having appealed therefrom, the learned lower appellate court reversed the findings holding that the Plaintiffs did not acquire any customary right over the suit path by virtue of their purchase of their homestead; and that no such right was enjoyed by the vendors and no such right was sold by them to the Plaintiffs. The Plaintiffs having purchased their homestead in 1953 and the instant suit having been filed in 1965 they had not used the path for the statutory period to acquire any right of easement and Section 8 of the Transfer of Property Act was also not attracted. The appeal was accordingly allowed and the suit dismissed. Hence this second appeal.

Mr. S.K. Sen, the learned Counsel for the Appellants, submits, inter alia, that while the decision of the trial Court was based on evidence on record, the decision of the learned lower appellate court is perverse being not based on any evidence on record and that the period of user of the path by the Plaintiffs'' predecessors vendors must be added to the user of the Plaintiffs and when so added the period exceeds the statutory period of 20 years; and that the Plaintiffs pleaded easement of necessity which the lower appellate Court did not advert to.

Mr. B.M. Mahanta, the learned Counsel for the Respondents, submits, inter alia, that the Plaintiffs'' vendors never claimed or established any right of user and they did not transfer any such right to the Plaintiffs; that the Plaintiffs had alternative path through an embankment and there is no question of any easement of necessity; and that the finding that there was no easementary right acquired by the Plaintiffs, is a finding of fact and is not amenable to interference in this second appeal.

The only questions to be decided, therefore, are (i) whether the Plaintiffs acquired easement right over the suit path or any part thereof; and (ii) whether the finding of the learned lower appellate court is a finding of fact and not amenable to be inter-ferred with in this second appeal.

While the learned trial court took the suit to be one for declaration of customary right of way, the lower appellate court considered it to be one of easement; and Mr. Sen has urged that the question was one of easement of necessity. It is therefore, necessary to analyse the three concepts. An easement arising by custom is different from an easement by prescription. While the acquisition of an easement by prescription may be by any individual, a customary easement ordinarily appertains to many as a class. The Indian Easements Act, 1882, shortly ''the Act'', has not been shown to be applicable to Assam in 1882, When the Act was passed it was not enforced in Burma, Bengal or the Punjab. Since Assam, Bihar and Orissa were parts of Bengal in 1882, when the Act was passed, the Act did not apply to Assam, Bihar and that Part of Orissa which formed part of Bengal in 1882. It has not been shown to have been subsequently brought into force in Assam. However, there is ample authority for the view that even in those parts of the country where the Act is not in operation, there is no reason why the principles underlying the provisions of the Act should not be followed. As was held in Shivdhar Shukla v. Corporation of Calcutta 64 C.W.N. 60, In places to which the Act does not apply, it may serve as a useful guide for ascertaining the rule of law on the subject. It is accepted that the English Common Law on easement as also the Roman Law of Servitude are highly technical and their application to Indian conditions presents difficulties. In such cases the provisions of the Act may be resorted to, not because they have the binding force of law but because they would throw a flood of light on some difficult question, as was observed in Jang Bahadur Singh v. Thithar Singh AIR 1935 P. 188. While Section 18 of the Act acquisition of easement by prescription, Section 18 deals with customary easement, u/s 15 where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such easement shall be absolute and the period of twenty years shall be taken to be period ending within two years next before the institution of the suit wherein the claim to which and period relates is contested. u/s 18 of the Act an easement may be acquired in view of a local custom. Such easements are called customary easement. A custom is a rule, which, in a particular family or a particular district, has from long usage obtained the force of law. It is an usage by virtue of which certain persons belonging to a certain class in a certain locality are entitled to exercise certain rights against certain other persons of the same locality. According to Austin it is a rule of conduct which governs to be observed spontaneously, and not in pursuance of a law set by a political superior. A customary right of easement is not an easement properly so called. An easement properly belongs to a determinate person or persons in respect of his or their land. A group of persons like the inhabitants of a locality, unless incorporated as a determinate juridical person, cannot claim an easement. A customary right belongs to no individual In particular. Easements are, so to speak, private rights belonging to particular persons, while customary rights are public rights annexed to the place in general. Persons claiming a customary easement have not only to prove the elements required by Section 25 of the Limitation Act or Section 15 of the Act but also something more, namely, that the custom set up was ancient, continuous, reasonable, certain and compulsory. Thus where a pathway is claimed as a village pathway, it is necessary to show that the user was of the pathway as a village pathway. According to Gale customary rights are claimed for a fluctuating class, in respect of a locality, and it is unnecessary to look out for their origin as arising from grant or otherwise. Private easements, on the other hand, are claimed by defined persons, and arise from a grant which is either express or is implied from prescriptive user, Customary right is recognised by courts only if the custom is reasonable, besides being ancient and certain, Private right involves only the interest of the owner of the dominant tenement on the one hand and the servient on the other. It is settled law that a private easement must be an incident of a known and usual kind and it cannot confer the exclusive use of a servient tenement and beyond this the question of reasonableness would not arise. Applying the foregoing principles to the facts of the instant case it cannot be said that the Plaintiffs claimed any customary right of way over the suit path. The learned trial court, therefore, erred in characterising the suit as a suit for customary right of easement. The learned lower appellate court correctly held it to be a suit for easementary right.

Section 13 of the Act deals with easements of necessity and quasi-easements. An easement of necessity is one without which the property, for the benefit whereof, it is claimed cannot be enjoyed at all. An easement of necessity presupposes the vesting of ownership of two tenements originally in one and the same person and the severance of such ownership. Where there was no allegation of a prior joint ownership, but on the other hand evidence showed that the two tenements had been owned by different persons and that they wore built upon on different occasions, there can be no question of any acquisition of an easement of necessity. u/s 13 of the Act where one person transfers or bequeaths immovable property to another, if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. Thus under this section previous joint ownership of the two tenements and the necessity of an easement for enjoyment of the dominant tenement would be necessary for proving an easement of necessity, An easement of necessity is created by implication of law, that is, by implied grant or devise. The doctrine of the creation of easements by implication of law is founded upon an implied grant, which arises in connection with some express grant or disposition of the servient or dominant tenement. Such grant can only be implied where both the dominant and the servient tenements had been in common ownership. The creation of an easement of necessity is an outcome of the prior relationship between the tenements. The disposition which terminates the common ownership and gives rise to an easement by implication of law may be of either tenement, or a simultaneous disposition of both tenements. Where a man transfers or bequeaths part of his land which affords accommodation to the part retained, that accommodation upon severance ripens into an easement, if it is absolutely necessary for the enjoyment of the part retained, and the accommodation is such that it is capable of constituting the subject matter of an easement.

In the instant case prior common ownership of the Plaintiff''s and the Defendants lands has not been pleaded. The Plaintiffs have not impleaded their vendors nor have they impleaded the tea estate to which their lands belonged. It has also not been pleaded that without the easement claimed their land is not enjoyable at all and this was known to them during prior joint ownership. It cannot, therefore, be held that the Plaintiffs'' claimed any easement of necessity. The submission to the effect has, therefore, to be rejected.

u/s 25 of the Limitation Act, 1963, which deals with acquisition of ownership by prescription, where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for twenty years, the right to such access and use of light or air, way, watercourse, use of water, or other easement shell be absolute and indefeasible; and where the property over which a right is claimed belongs to the Government the period shall be thirty years, We have also adverted to the provisions or Section 15 of the Act which deals with acquisition of easement by prescription.

An easement is a right of use over the property of another. Traditionally the permitted kinds of uses are limited, the most important being rights or way and rights concerning flowing waters. The easement was normally for the benefit of adjoining lands, no matter who the owner was (an easement appurtenant), rather than for the benefit of a specific individual. The land having the right of use as an appurtenance is known as the dominant tenement and the land which is subject to the easement is known as servient tenement. It is a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with a general property in the owner. It is an interest which one person has in the land of another. A primary characteristic of an easement is that its burden falls upon the possessor of the land from which it issued and that characteristic is expressed in the statement that the land constitutes a servient tenement and the easement/dominant. Easement by prescription is a mode of acquiring title to property by immemorial or long- continued enjoyment, and refers to personal usage restricted to claimant and his ancestors or grantors. An easement of access is a right or ingress and egress to and from the premises of a lot owner to a street appurtenant to the land of the lot owner. A private easement is one in which the enjoyment is restricted to one or a few individuals, while a public easement is one the right to the enjoyment of which is vested in the public generally or in an entire community; such as an easement of passage on the public streets and highways or of navigation on a stream.

The Roman lawyers classified the right as jura in re i.e. rights in rem less than ownership of these by far the most important class was servitudes. A servitude was essentially a right or a group of rights vested in some person other than the dominus on the land subject to it. It was thought of as a burden on the res, a jus in rem, in another person to which the owner must submit. Thus praedial servitudes were rights over a piece of land vested in one, not owner of that land, but of adjacent land to which, rather than to him it was attached, so that if he alienated the land the servitude went than on the ownership for a servitude might exist over land which had no owner. Under Roman law there could be no servitude on ''res sacrae or religiosae''- that was inconsistent with religion. Roman law classified servitudes into praedial and personal. Praedial servitude applied only to land, were almost innumerable and gave only limited definite right. Personal servitude applied also to movables, were limited in tradition, were few and gave indefinite rights including physical possession of the property concerned, Long enjoyment was a root of title to a setvitude. It was a case of ''praeasriptio''

The Privy Council in Secretary of State for India v. Maharajah of Bobbili AIR 1919 P.C. 52 observed that it was of coarse in accord with legal theory that a right of easement was created by grant, but it was also sound law that a grant of such a right was presumed from long possession, although the actual transaction of making such a grant could not be discovered or proved. In that case it was established for about 50 years, namely, from 1814 till 1865, when the Act was passed, the owners of palkonda Zamindari and the Zamindar of Bobbili stood in the position of having the one a servient, and the other a dominant tenement, with the unchallenged enjoyment of the easement of water-supply. It was accordingly observed that the acts of parties over a long course of years may point to the enjoyment of an easement founded upon a grant by the owner of the servient to the owner of the dominant tenement.

Mr. Sen relies on Baisnath Barik and Another Vs. Sheikh Nasiruddin and Others, which was a case on customary right and not of prescriptive easement. It was held in that case that an easement must be connected with a dominant tenement. A right of way claimed by the public or a certain section of the public over certain land described as a village pathway, is not a right of easement and is not governed by Section 26 of the Limitation Act. It is a customary right and may also be traceable to dedication which may be inferred by user for a very long period. No fixed period of enjoyment is necessary in order to establish such a right. This case is, therefore, not on the point. In Ganpatrao Madhorao v. Sheikh Bader AIR 1939 Nag 193 it was observed that to hold that a good custom has been established it is not necessary to establish immemorial user because the English Common law rule of immemorial user is not required to establish a custom in India. The custom must be (1) reasonable, (2) certain and it must be proved that (3) the user was not permissive, (4) the user was not exercised by stealth, (5) the user was not exercised by force, and (6) that the right had been enjoyed for such a length of time as to suggest that by agreement or otherwise the user has become the customary law of the locality. On the facts of the case it was held that where the suit land had been used by Mahommedans as a burial ground for 45 years, the Count was bound to infer that at some time in the past there was grant to this Mahommedan community in the suit land. This case is also, therefore, not on the point. In Rajpur Colliery Co. and Others Vs. Pursottam Gohil and Another, it has been held that where a person claims a right of way by certain road as an easement of necessity, that is, on the ground that he has no other means of going out, or coming to his plot except that particular road, but the evidence shows that there is an alternative route to and from his plot, his claim on ground of necessity cannot be entertained. It has further been held that it is settled law in England that whenever a well-formed road or path-way exists over a portion of a land belonging to one person for the beneficial enjoyment of another portion of that land and such formed road or path-way is required for reasonable and convenient use of the other tenement for which purpose it had been made, on serverance of the two portions of that land, a right to use such road or path-way shall pass by implied grant; and that those principles had also been followed in India. In the instant case no prior joint ownership and severance have been pleaded and the Plaintiff did not specifically make out a case of easement of necessity. In Rajroop Koer v. Abdool Hossain ILR Cal 394 (PC) it was held that Section 26 of the Indian Limitation Act was not the only way of acquiring an easement, but that it could as well be acquired in others recognised ways, such as express grant, implied grant or lost grant, i.e. long user raising the presumption of the legal origin of the right. In Patneedi Rudrayya Vs. Velugubantla Venkayya and Others, it was hold, that a phenomenon is said to be happening from time immemorial when the date of its commencing is not within the memory of man or the date of its commencement is shrouded in the mists of antiquity. In Anadi Hati Vs. Dharamu Behera and Others, interpreting Section 15 of the Act it has been held that use of the way by municipal scavengers for over 20 years for cleansing the Plaintiff''s latrine results in acquisition by Plaintiff of the right of way for the purpose of municipal sweepers coming by the passage to clean the Plaintiff''s latrine. The disputed passage was used for cleaning the Plaintiff''s privy openly and peaceably as of right for more than the prescriptive period.

In the instant suit the Plaintiffs prayed for a declaration that since the time of their predecessors the Plaintiffs had absolute easement right to the path described in Schedule I and part thereof described in Schedule II for passage of their man and carriages and that the Defendants had no right to hinder the Plaintiffs'' use of, or their passage along, that path. Their predecessors-in-interest, namely, Tek Bahadur and Kamsing Lama and their predecessor-in interest, the Chencoree Tea Co. Ltd. were not made parties to the suit. Defendant No. 3 was the Chowkidar of Defendants 1 and 2. The learned lower appellate Court found as fact that none of the documents, Exts. 1 to 4, contained any statement that there was a path which had been used by the dominent heritage. By the deed of conveyance no prescriptive right of use was sold to the Plaintiffs and that the Plaintiffs did not prove that the vendors acquired the right of easement by prescription over the suit path before they sold the homestead to the Plaintiffs and that the vendors were not in possession of the land for the statutory period of 20 years to acquire any right of easement and that no such right was conveyed to the Plaintiffs, It further held that the Plaintiffs held the land for less than the statutory period for acquiring the right of easement by prescription. The Plaintiffs came to possess the land in 1953 and the suit was filed in 1965. There was no evidence to show that there was immemorial or long user. The above being pre-eminently findings of facts those cannot be interfered with in this second appeal.

On the basis of the given facts whether a person has or has not acquired a right of easement may be mixed question of law and fact and as such may be gone into in second appeal. However, the facts themselves cannot be questioned in second appeal. In the instant case the conclusion that the Plaintiffs did not acquire any prescriptive. right is based on the facts referred to above and as such there was no error of law in holding that on the basis of those facts no right of easement was acquired by the Plaintiffs.

In the result this second appeal if found to be devoid of any merit and hence it is dismissed. Then will, however, be no order as to costs in this Court.