Kanwarjee vs Ruldu and another

N.K. Kapoor, J.—This is plaintiff''s regular second appeal against the judgment and decree of the Additional District Judge affirming in appeal the judgment and decree of the trial Court whereby the suit of the plaintiff was partly decreed.

Plaintiff filed a suit for permanent and prohibitory injunction restraining the defendants from interfering into the construction work on roof of the rooms of the plaintiff. As per averments made in the plaint, plaintiff is owner in possession of the shop as detailed in the head note of the plaint. Defendants own a house adjoining the shop of the plaintiff. According to the plaintiff, defendants used to throw dirt on the roof of the plaintiff. The plaintiff tried to dissuade them but in vain. It is the case of the plaintiff that he now wants to make use of the roof but the defendants insist that they would use it as a thoroughfare for which they have no right.

Defendants appeared and contested the suit. They averred that they are entitled to use the roof as a thoroughfare and that the plaintiff has no right to construct a room on the roof so as to deprive the defendants from the right of using it as a thoroughfare.

On the pleadings of the parties, a number of issues were framed. The dispute between the parties primarily centred around the following issue:

Whether the plaintiff is entitled to the construction of second storey on the roof in question ? OPP

Whether the defendants are entitled to use the roof in question as passage by easement of necessity ? OPD

The trial Court on the basis of evidence came to the conclusion that the plaintiff has a right to construct the second storey on the roof in question after leaving 2 feet wide passage adjoining the staircase in question so as to allow the defendants to have access to their roof. Resultantly, the suit of the plaintiff was decreed to the extent that he has right to construct room on the first floor provided he leaves two feet wide passage for use by the defendants as passage adjoining the staircase in question to have access to their room.

Feeling dissatisfied with the judgment and decree of the trial Court, the plaintiff filed an appeal. The Additional District Judge once again examined the case on facts as well as on law. Additional District Judge after carefully weighing the evidence led came to the conclusion that the defendants have acquired a right to use the roof in dispute as a passage by way of quasi easement. To the objection of the appellant that there was no precise issue with regard to the plea of easement, the Court held it to be a mere omission and so ignored the same. The appellate Court noticed that the defendants have taken specific plea of quasieasement in their preliminary objection No. 7. Resultantly, the appeal was dismissed.

With a view to seek reversal of the concurrent findings recorded by the Courts below, learned counsel for the appellant once again highlighted the facts leading to the present controversy and have raised critical objection to the conclusion of the Courts below. According to the counsel, both the Courts have erred in law in coming to the conclusion that the defendants have acquired a right of passage as a quasieasement. According to the counsel, this specific plea had not been taken by the defendants and so the Additional District Judge erred in law in holding it to be a case of quasieasement. Before proceeding any further, it was thought appropriate to verify this fact as to whether the specific plea had been taken by the defendant in their written statement. On perusal of preliminary objection No. 7 of the written statement dated 22.8.1977 it became crystal clear that the defendants have specifically taken the plea of quasieasement. So this plea of the appellant is factually incorrect. Both the courts on the basis of evidence led have come to the conclusion that the defendants have been able to establish their limited right of passage over the roof of the plaintiff and precisely for this reason the Court below allowed a passage of two feet width to the defendants to reach the roof of the shop/house. This conclusion is based on appreciation of evidence which in no manner is vitiated. Thus finding no merit in this appeal, the same is dismissed. No costs.