Mt. Bibi Hamida Khatoon and Another vs Panchayat of Mohalla Baryapore and Others

Reuben, J.—This appeal by the plaintiff against concurrent decrees of the Courts below dismissing her suit for the declaration of her right of easement over the suit land and for the removal of certain obstructions placed thereon by defendants 1 to 6 has been filed in the following circumstances: Holding No. 153A, circle No. 17, in the Patna City Municipality was formerly owned by one Dr. Ramkali Gupta. After his death the holding was divided by private partition between his four sons and his widow, defendants 7 to 11, by a partition deed dated 20-12-1982 (EX. 2). By this partition each of the heirs got a separate portion of the holding, and a strip of land running across the holding, partly in a north and south and partly in an east and west direction, was left joint between them. It is described in the partition deed (Ex. 2) and the partition plan (Ex. 2A) as a "common passage" and contains a well and under the terms of the partition deed a latrine was to be constructed on it for the common use of the parties to the partition. This common passage forms the subject matter of the present suit. The plaintiff acquired her interest in Holding No. 153A by a sale deed (EX. 1), dated 7-10-1934, executed in her favour by Chandra Kant Biswas and Surjya Kant Biswas, who themselves acquired their interest under sale deeds (Exs. A and A1) dated 17-1-1933, and 23-1-1933, executed by defendants Nos. 7 and 8. The area thus acquired by her consists of one block of land, separated from the rest of the holding by the common passage and comprising a portion of the shares allotted to defendants Nos. 7 and 8 in the partition. After her purchase the plaintiff constructed a house on the land, and a drain on a portion of the passage in suit. In 1939, defendants Nos. 1 to 7 [6?] who claim a portion of the suit land under a deed of gift, executed in their favour by defendants Nos. 7 to 11, started certain constructions on it and removed the drain of the plaintiff. Hence, the present suit.

Defendants Nos. 2 and 7 contested the suit. They denied that the plaintiff has any right in respect of the suit land. This contention has been upheld by the Courts below. The sale deed (Exhibit 1) under which the plaintiff claims purports to pass the property "along with the common passage which is adjoining west and north". There is no mention of this common passage, however, in the sale deeds (Exhibits A and Al) under which the vendors of the plaintiff derived their interest in the property. Hence the plaintiff''s acquisition of any right in respect of the suit, land depends upon whether her vendors acquired any right in respect of it under their sale deeds. As regards this, Mr. P.R. Das for the appellants argues that the right of passage was a right of easement annexed to the land and passed to the Biswases under the provisions of Section 8, Transfer of Property Act. Mr. Sarju Prasad; who also appeared for the appellants, bases her claim on another ground. According to him the right in respect of the common passage is of the nature of a proprietary right, which formed a legal incident of the property sold to the Biswases and passed to them along with that property under the provisions of the above section. The answer to the argument of Mr. Das is that, at the time of the sale to the Biswases, there was no right of easement. The characteristic of an easement is that it is a right which the owner of the dominant tenement as such has over the property of another. Here, defendants Nos. 7 and 8 were themselves owners of the common passage, and as Such were entitled to use the common passage. Such easement, if any, as may have arisen by the transfer in favour of the transferred property over the property remaining in the hands of the transferor is not contemplated by Section 8, Transfer of Property Act: AIR 1937 179 (Nagpur) .

The stand taken by Mr. Sarju Prasad is inconsistent with that taken by the plaintiff in the first appellate Court, where her advocate admitted that she did not claim a right of proprietorship in the suit land. Be that as it may, I do not think the circumstances of the case support the contention of Mr. Sarju Prasad. The common passage was left for the use of the co-sharers in a partition between members of one family. It contained a well and there was an agreement that a latrine would be constructed on it for the use of the parties. It may have been convenient that the common passage should be kept open for use by the members of the family, but there is nothing in this arrangement to make the right to a share in this passage or even to the use of the passage a legal incident of the shares allotted to the co-sharers, with the result that any stranger who might acquire the share of one of the co-sharers would automatically become entitled to the common passage. There is certainly nothing in the deed of partition, Ex. 2, to support this contention. The facts in [ Ram Sarup Vs. Girdhari Lal and Others, , cited by Mr. Sarju Prasad, are entirely distinguishable. That case concerned a self-contained mohalla with, on one side, a large gateway and two sehdaries. From the nature of the neighbourhood and the buildings Boys, J. drew the presumption that the owners of the existing houses in the mohalla had a joint right in the sehdaries and the gateway, and as this presumption was unrebutted his Lordship held that the joint interest in the sehdaries and the gateway, was an incident of the proprietary right to a house in the mohalla and passed with it. Here, on the contrary, there is nothing except proximity to connect the passage in question with the property transferred to the Biswases. At the time of the transfer the land was open, uncultivated land, adjoining a municipal road, and there is no suggestion that either defendant 7 or 8, made any use of the passage for the benefit of the land transferred by them to the Biswases. Hence, I do not see how any interest in the common passage could pass to the Biswases along with the land specifically transferred to them.

In my opinion, the Courts below have rightly held that the rights of the Biswases, if any, over the common passage can only arise by way of a presumed grant arising out of the severance of the tenement. On such a severance the easements that arise are easements of necessity or continuous and apparent easements, which are necessary to the reasonable enjoyment of the property granted, and which, as quasi easements, have been and, at the time of the grant were, being used by the grantor for the benefit of the part granted. A right of way is not a continuous easement and the right of maintaining a drain on the land was not exercised by the original grantors. It is admitted that the right is not being claimed as an easement of necessity. Hence no such right accrued to the Biswases and consequently could not have been transferred by them to the plaintiff. Reference has been made on behalf of the appellant to Shantaram Balkrishna v. Waman Gopal AIR 1923 Bom. 85 in which Shah, Ag. C.J., laid down that under the Mitakshara and the Vyavahara Mayukha land reerved as a common passage at a previous partition between the parties is not divisible subsequently. The parties in this case are Bengalis and are presumably governed by the Dayabhaga, and it cannot be said without further examination whether the proposition there laid down is applicable in the present case. That is a matter however to be taken up at the instance of a party who has an existing interest in the common passage. Here, the plaintiff appears to have no interest in it, and the gift to defendants 1 to 6 is said to have been made by all the parties to the partition. Mr. Sarju Prasad has also referred to Nubeen Chunder v. Bhoobun Chunder (71) 15 W.R. 526. In that case an easement of a right of way was established and was held to have passed with the dominant tenement. The decision does not help in the present case as such a right has not been established here. On the above grounds, this appeal fails and is dismissed with costs. Leave to appeal is refused.