Gopendra Krishna Chandra vs Mrinalini Basu

A.K. De, J.—This appeal is by the Defendant No. 1 in T.S. No. 132 of 1966 in the Second Court of Munsif at Alipore. The Respondents Nos. 1 and 2, mother and son and another started the suit on April 14, 1962. Later, they on their-petition obtained leave under Order 1, Rule 8 of the CPC to continue the suit in representative capacity for and on behalf of the residents of the locality of Chetla in the city of Calcutta. The case in the plaint, not fully or properly stated in the learned Munsif''s judgment, is that there is a 6 ft. wide passage running north to south, between the Defendants'' houses on 29A, 29B and 31 Gobinda Addy Road, on the east and the Plaintiff''s houses on the west. The passage connects Gobinda Addy Road on the south and leads ''towards Sabji Bagan Lane'' on the north. The original Plaintiff No. 1 who died during the pendency of the suit owned and resided in 27B Gobinda Addy Road and the Plaintiffs Nos. 2 and 3 own and reside in 25 and 27C Gobinda Addy Road. The 6 ft. wide passage is in existence for over 50 years. The Plaintiffs as also the public have been using it uninterruptedly, continuously and as of right from the time of their predecessors for that long period and have acquired right of easement over it as a pathway either by prescription or by implied grant. The passage is also an easement of necessity in respect of premises 27C, as there is no other passage to go to it. The said passage is mentioned in numerous documents from 1893, in Smarts Plan, as passing through and extending on plot No. 2230 of mouza Chetla and in constructional plans. The Defendants put up obstruction on April 18, 1962, on the pathway for which the Plaintiffs filed the suit. They and particularly the residents of No. 27C would suffer special damages as the blocking of the suit passage would diminish the value of their properties and deprive them of the existing approach to them. The Plaintiffs further stated that the residents of 27C Gobinda Addy Road have alternatively an easement of necessity over the suit pathway as they have no entrance to or exit from their said premises except through the suit pathway.

Obtaining leave of the Court under Order 1, Rule 8 of the CPC a case of the public residents of the locality of Chetla acquiring right of way over the suit pathway by prescription was introduced by amendment of the plaint.

Of the Defendants, who are heirs of Satyendra, Nos. 1 to 3 and 5 jointly contested the suit. The defence is that the strip of the land between their houses on 29A and B and 31 Gobinda Addy Road and those on premises Nos. 25, 27A, 27B arid Gobinda Addy Road, is their private passage, constructed by their predecessor for that purpose in 1905 and that neither the Plaintiffs nor the Chetla public have any easement right over it either by grant or prescription or as easement of necessity. They state that premises Nos. 27A, 27B and 27C were originally No. 27 owned and possessed by Jnanada Sundari Debi (the Plaintiffs No. 1 to 3''s predecessor) and she took the Defendants'' permission to lay pipes under the Defendants'' private passage i.e. the suit pathway. They disputed the claim of easement of necessity stating that Gobinda Addy Road runs by the south of premises Nos. 25, 27A and 27C and is used by them to come out and enter into those houses and that premises No. 27B has its opening on a lane to its adjacent connected with Gobinda Addy Road. They disputed that any of the Plaintiffs suffered or will suffer any special damages if the suit private passage is not used by him or them.

The learned Munsif decreed the suit in a short judgment without any consideration of the evidence or the pleadings with reference to evidence or discussion of the basic questions involved in the suit, holding that the residents of premises No. 27C have an easement of necessity over the suit pathway as "one cannot go to the main roads from the premises No. 27G if the disputed passage is not used" and that the documents (Exs. 1 and 4) prove the grant, express or implied. He further held that the Plaintiffs, along with the public of Chetla locality, acquired right of easement over the said strip of land by prescription but did not refer to the oral evidence as to user even though a case of acquiring right by prescription could not be held established except on evidence of user as of right, as of easement claiming title thereto, peaceably and openly without interruption for 20 years ending with two years before the suit.

The Defendants filed appeal against the judgment. The learned Additional District Judge by his judgment dated June 9, 1970, has dismissed the appeal. He has also dismissed a miscellaneous appeal filed against an interlocutory order in the suit as that was not proceeded with. The learned Additional District Judge has, however, reversed the learned Munsif''s finding and decision that the Plaintiffs have an easement of necessity over the suit pathway. He has held that the suit is not bad for inadequate description and delineation of the suit pathway in the plaint, that the suit is not fl bad for non-joinder of all the servient tenaments, that the Plaintiffs have proved by oral evidence user of the pathway for the necessary period by themselves and by the Chetla public to acquire a right of way by prescription and that the documents exhibited by the Plaintiffs have proved that the suit pathway is a public pathway.

The Defendants appeal is directed against the appellate judgment affirming partly the judgment of the learned Munsif. The Respondents Nos. 1 and 2 have filed a cross-objection challenging the first appellate Court''s decision reversing that of the Munsif holding that the Plaintiffs have also an easement of necessity or quasi-easement.

The decree under appeal is that the Plaintiffs have a right of way acquired by prescription and that the Chetla public have also a right of way acquired by prescription. The Defendant Appellant submits that both these conclusions have been wrongly reached without considering the evidence and on a consideration of inadmissible pieces of evidence.

Both the Courts below approached the case from a wrong end and thus have fallen into error in not considering the essential ingredients required to be established to grant a decree of right of way acquired by statutory prescription. They first proceeded to find out whether or not the suit pathway was a public pathway. After holding on inadmissible pieces of evidences that it is a public pathway, they glossed over the oral evidence of user and believed it as adequate on the premises that a public pathway carries with it user by public as such even without sufficient evidence of actual user.

The first question that is to be considered is whether the Plaintiffs Nos. 1 to 3 have collectively or individually have acquired by prescription right of way over the suit pathway. Several pieces of evidence on record have not at all been considered by either of the two Courts. The kobala (Ex. H) of March 10, 1905; very clearly goes to show that there was no passage or pathway on the suit strip of land before that year. The owner of the land when selling to the Defendants'' predecessor Gopal secured for herself and for her family members only, with consent of the buyer who acquired by that kobala absolute right over the land, to use the passage,, which the buyer was going to construct on it, to reach Sabji Bagan Lane, later named as Gobinda Addy Road, for specific purposes, namely,

(1) user of it as passage for herself and her family members,

(2) as malhor passage,

(3) for going to pluck fruits from her trees and

(4) for erecting scaffolding for repair of her house etc.

A passage, not in existence before 1905, could not have been used as such by the Plaintiffs'' predecessor or the Plaintiffs or P.Ws. before that. Their oral evidence, to say that, is not acceptable as true. The Courts below again erred when they state that Jnanada Sundari''s (Plaintiffs'' predecessor) statement in Ex. G of 1918 does not disprove the Plaintiffs'' case. It does, if the suit pathway was a public pathway, there could not have been any reason for any individual user of it to seek the Defendant''s permission to lay pipes under it. For that, permission, if any, was needed from the municipality. There is no private ownership of a public pathway. In the documents she clearly stated that she would not have any other right except for laying pipes under it.

The Courts below have not considered the situation, the characteristics and features of the suit pathway, factors to determine the character of its user. The houses on 27A, 27B and 27C have no doors or opening upon the suit pathway (see Commissioner''s report--Ex. 6). There is a 1 or 1� ft. high brick wall, 43 ft. long, on the western extremity of the suit passage proving that the passage was not a public pathway or useable as such [see Commissioner''s reports--Exs. 6 and 6(a)]. To reach the suit pathway the residents of premises No. 27C will have to travel over the existing pathways on the north, west and south along their houses. One will have to climb pucca steps from Gobinda Addy Road, Municipal Road, to have access to the suit pathway [Commissioner''s report--Ex. 6(a)]. These negative a claim of user of suit pathway as of easement or as of right. Moreover, use if any, of one''s private passage by neighbours does not mature into a prescriptive right. The mental element, necessary to acquire a prescriptive right, is user in assertion of right and as of easement claiming title there. These elements are absent in the plaint and evidence. Both the Courts failed to notice that and have proceeded as if there was such evidence. This has led them into error. They did not notice that not a single resident of Chetla living away from the suit passage gave evidence. They did not consider the pleader Commissioner''s report (Ex. 6) where he noted--The alleged passage seems to be a private passage. I did not find any people to use the said disputed passage so long I was there and he went there on August 15, 1966, August 28, 1966 and September 11, 1966. They took no notice of the Commissioner''s report [Ex. 6(a)] where it had been stated that the suit passage after it went north beyond premises No. 29B Gobinda Addy Road, which is clearly connected with the existing passage skirting the rectangular block formed of premises Nos. 23B, 23C, 23D, 23A, 25, 27C, 27A and 27B had no ''alignment mark of passage claimed by the Plaintiff as suit land''. There is merely some vacant land and not well defined or marked pathway. This disproves wholly the Plaintiffs'' case that the suit passage has north terminus on Sabji Bagan Lane. The claim of the Plaintiffs, individually or collectively or as members of the general public or residents of Chetla, should not have been allowed. No prescriptive right by user could be or had been acquired.

The learned Additional District Judge has negatived a contention that the suit should not have been decreed when the suit pathway has not been properly described in the plaint observing that the description in the Commissioner''s map [Ex. 6(a)] supplies the lacuna. This is a wrong approach. In the plaint the suit pathway is described as having one terminus is not shown or mentioned ever. The learned Munsif, on the Defendants'' objection, held that the description was inadequate. He appointed a Commissioner. The Commissioner had shown in his map both terminus. But there has been no corresponding amendment of plaint in accordance with the Commissioner''s plan. In spite of the Commissioner''s plan the Plaintiffs'' claim in the plaint has remained as before. The Court cannot say that the Plaintiffs'' claim is as per the Commissioner''s map when the Plaintiffs have not said so by amendment. If the plaint land is more than what it is in the Commissioner''s map," the Court may decree as per that map. But if it is less, as here, the Court cannot decree for more without amendment of plaint to include the excess as per Commissioner''s plan. The suit, for that inadequate description, should have been dismissed. I so hold.

The learned Additional District Judge is right in holding that the suit is not liable to fail for non-joinder of all servient tenements as none of them, except the Defendants, is alleged to have obstructed the Plaintiffs or disputed their claim of pathway before suit.

Mr. Saktinath Mukherjee, learned Advocate appearing for the Respondents, tried to support the judgment making a new case. His submission was that the Courts had decreed in favour of the Chetla public a customary right of way. Several reasons make his submission untenable. First, there is no case of customary right in the plaint. Custom must be specifically pleaded. A Plaintiff who sets up a prescriptive right cannot in fairness succeed on the basis of customary right. In this connection reference may be made to the case in Gopal Krishna Sil v. Abdul Samad Chaudhuri (1921) 34 C.L.J. 319. Secondly, there is no evidence in proof of the customary right. Thirdly, the Courts have not considered any such case. Fourth, there is no such case also in the Respondents'' cross-objection in this Court of the first appellate Court. Fifth, custom has its origin in an ancient grant. Here the origin is known and within living memory. The pathway came into existence only after 1905 (kobala Ex. H). For all these reasons, I disallow this contention of Mr. Mukherjee. Mr. Mukherjee next referred to the case in AIR 1950 56 (Privy Council) , to contend that the Courts might or would grant a decree on customary right even if there is no case in the plaint, when facts, found or proved in evidence, made out such a case. That case is on different set of facts. There were statements in that suit which could base a case of customary right. In that case, the nature of the evidence was definite and satisfactory to prove a customary right. Prayer in that suit was consistent with the customary right. That was a case of ''burial ground''. Customary rights, are public rights annexed to the place in general. Persons here, the Chetla residents, if they were claiming a customary right, have to prove not only the elements required u/s 26 of the Old Limitation Act or Section 25 of the new Act but also have to prove something more, namely, that the custom set up was ancient, continuous, reasonable, certain and compulsory : See Harisadhan De and Others Vs. Radhika Prosad Pandit and Others, . Continuity, if any, assessed in the instant case, was broken in 1918 when Jnattada took Defendant''s permission stating that she, a member of Chetla resident, would have no right except for the purposes permitted. Customary right, if any, was given up there. It is not compulsory as there is an alternative pathway on the bank of the tank passing by the north and west of the block; certainty of purpose is also wanting as there is no defined way up to Sabji Bagan Lane beyond premises No. 29B, I am, therefore, unable to give effect to the contention of Mr. Mukherjee. In the plaint, claim is one for the public at large. Customary rights can exist only in relation to the inhabitants of a particular locality and not in respect of the public at large : Lakshmidhar Misra v. Rangalal Supra....

Mr. Banerjee, learned Advocate appearing for the Appellant, argued that if a case of customary right was to be considered, it would be rejected for non-compliance with the requirements of Section 91 of the Code of Civil Procedure. Particulars and details of special damage has not been stated in the plaint as necessary : vide Raj Chandra Haldar Vs. Mahim Chandra Mallick and Others, . It is not necessary to consider this contention on several grounds. First, issue No. 2, as to maintainability of it included this defence, had been rejected as not pressed and there is no affidavit by the lawyer of the first appellate Court. Second, it cannot be raised in second appeal as held in the case of Thangavel Nadar Vs. Sudalaimada Nadar and Others, . This is not one of the grounds taken in the grounds of appeal. Next, this is a case of right of residents of a particular locality and not of the general public. As such, it cannot be a case of public nuisance as held in the case of Kalicharan Naskar v. Ram Kumar Sardar and Ors. (1912) 17 C.W.N. 73.

The Courts below had relied on the recitals of boundaries. In Exs, 1 to 4, particularly Exs. 1 and 4, to hold that the suit pathway has been mentioned there as public pathway and that it was enough to declare a right of way on that pathway on that evidence only.

Mr. Banerjee, has referred to the case of Radha Krishna Marwari v. Sarbeswar Nag (1925) 29 C.W.N. 469, to the case of Kalappa v. Bhima Govind AIR 1961 Mys. 160 and to the case of Shrinivasdas Bavri v. Meher Bai (1916) L.R. 44 LA. 36 (40) and submitted that these recitals were not admissible in evidence either u/s 11 or u/s 13 or Section 21 or Section 32 of the Indian Evidence Act. The Defendants or their predecessor have not executed any of these documents. Section 21 is not thus available. In not one of these documents any customary right was created, claimed, modified, recognised, asserted or denied. Section 13 is thus out of the say. Section 11 by its language is not applicable. The Courts below fell into error in reading those recitals in evidence as proof of the fact that the pathway in the suit is a public pathway or that they prove the right of way or customary rights or easements. Those recitals again have been proved to be incorrect. Only one of these documents Exs., 1 to 4, is dated before Ex. H of 1905. That is, Ex. 3. This is a document to Jnanda by Sukhomay Mitra. The said buyer Jhanda stated otherwise in Ex. G of 1918. Two old documents of 1883 and 1893 [Exs. I and 1(1)] make no mention of any pathway, much less a public pathway. In the document Ex. H of March 10, 1905, it was specifically mentioned that the land was being acquired by Gopal, predecessor of the Defendants, to construct the pathway. Any mention of the existence of public pathway in any document before 1905 cannot be correct. The Plaintiffs submitted a plan before the Corporation of Calcutta in 1961 for sanction. In that plan they stated that the suit pathway was a ''common passage''. This is an admission that it was not a public passage or a public pathway. The Defendants objected to the sanction of that plan stating that it was their private passage. The objection was upheld and the plan was not sanctioned [vide Exs. D, D(1) to D(5)]. The Defendants made a case in the written statement that the Plaintiffs having failed in that, have brought the suit and the Plaintiffs'' object in submitting such plan was for not keeping some of their own land vacant as required by the building rules of the Corporation. The Smart''s plan, Ex. J, filed by the Defendants also does not show existence of the suit pathway. Both the Courts below fell into error in considering the recitals of those documents as evidence in the trial and holding on these pieces of evidence that the suit pathway is a public pathway or that it is used as such. The Courts below went wrong in decreeing the suit.

I will now consider the cross-objection. It is founded on implied grant of reservation and may be claimed or had on a disposition by an owner of several heritages. The Plaintiffs have not made any such case either in the plaint or evidence. The learned Munsif has been wrong, as correctly held by the learned Additional District Judge, to say that a person has an easement of necessity if he cannot go to the main road except using it. If one builds a house on a plot that has no opening on a main road, he cannot go upon or claim easement of necessity over a neighbour''s land for that. Law does not and will not permit that. Besides, in an affidavit filed in the suit the Plaintiffs have stated only that use of the suit pathway is or will be more convenient. It appears from the Commissioner''s report that there is no door or opening on the suit passage from the premises No. 27C. Cross-objection of the Respondents Nos. 1 and 2 will be rejected.

The last question for consideration is whether the residents of the Chetla locality of Calcutta have acquired a right of way over the suit passage by prescription. I have already indicated that no evidence was given by any resident of the Chetla locality to prove the user of the suit passage as of easement or as of right. Strictly speaking, unorganised public cannot acquire rights by prescription. Indeterminate or fluctuating body of persons cannot acquire any easement by prescription. ''Public way'' and pathway of the residents of a particular locality only are not same. This was lost sight of by both the Courts. For this reason the public of Calcutta having acquired a right of way over the suit passage by prescription should have been disallowed.

In view of the above conclusions, I disallow the cross-objection and allow the appeal, set aside the judgments of the two Courts below and dismiss the suit with costs all throughput.