Shiv Prasad vs Gangaram and Others

Dhirendra Mishra, J.—This is the Plaintiffs second appeal u/s 100 of the CPC (for brevity ''the Code'') filed against the judgment and decree dated 28-07-1997 passed by Additional District Judge, Sakti in Civil Appeal No. 15-A/97 preferred by the Respondents against the judgment and decree passed in favour of the Plaintiff by the trial Court which has been allowed by the first appellate Court and the suit of the Plaintiff for permanent injunction, damages and declaration of his easementary right has been dismissed.

Intially the Appellant/Plaintiff filed a suit for permanent injunction and damages. Subsequently, relief of declaration of easementary right over the land of the Defendants was added. Case of the Plaintiff before the trial Court was that the Defendants were father and son and some civil litigation was pending between them. The Plaintiff is the owner of Khasara No. 2773/3 which he uses for the purpose of thrashing filed. In southern part of the above land the land bearing Khasra No. 2770/1 is situated. The Plaintiff had been using the said land for the purpose of bringing his bullock cart since the period of ancestors of the parties. However, Defendants mala fidely obstructed the way by erecting earthen wall with effect from 09-11-1992. Plaintiff had no other alternative way except through the land of the Defendants and they were exercising the right of way continuously, peacefully and without any obstruction since the time of his father.

The Defendants in their written statement denied the plaint allegations and stated that the earthen wall was constructed by their ancestors long back (25-40 years) and there is no way for carrying the bullock cart over their filed and as such the Plaintiff had no right of thoroughfare. It was alternatively pleaded that the Plaintiff had an alternative way in front of his land which is being used by him since long and accordingly prayed for dismissal of the suit.

On the basis of the pleadings of respective parties, issues were framed. Plaintiff examined himself and other five witnesses whereas Defendants examined themselves and other two witnesses in support of their case.

Learned trial Court decreed the suit of the Plaintiff by recording a finding that the Plaintiff had a right of way through the field bearing Khasra No. 2769 and 2770/1 of the Defendants and this right was being exercised by the Plaintiff for the last 25 years from the lifetime of his father and the above way has been obstructed by erecting earthen wall since the year 1992. The Plaintiff does not have any alternative way except through the field of the Defendants and Plaintiff has suffered general damages of Rs. 500/- and he is entitled for a decree of permanent injunction, special and general damages as the Plaintiff has an easementary right over the land bearing Khasra No. 2773/3, area 0.20 acres, Khasra No. 2770/1, area 0.38 acres belonging to the Defendant No. 1 and the land bearing Khasra No. 2769, area 0.30 acres belonging to Defendant No. 2 and the Plaintiff is the dominant owner of the above land.

The Defendants preferred an appeal against the judgment and decree of the first appellate Court and the first appellate Court allowed the same by the impugned judgment and decree and dismissed the suit of the Plaintiff by recording a finding that no easementary right as defined u/s 3 of the Indian Easement Act, 1992 (hereinafter referred to as ''the Act of 1992'' for convenience) has accrued to the Plaintiff as the Plaintiff himself admitted that he used the land of the Defendants with their consent.

The Plaintiff has alternative way from the front side of his house and therefore, no easementary right u/s 15 of the Act of 1992 is available to him.

The instant appeal has been admitted vide order dated 23-02-1998 on the following substantial questions of law;

Whether the alternative route available to the Appellant, as found by the lower appellate Court is equally efficacious as a route for which claim has been laid by the Appellant in his plaint ?

Whether the Court below failed to see that there is considerable evidence on record to show that the Appellant has been using the suit land as his way to the thrashing floor belonging to him for over 50 years and, therefore, the Appellant was entitled to use it ?

Learned Counsel for the Appellant has taken us through the pleadings and evidence on record and submits that the Plaintiff has pleaded and proved that he exercised his easementary right uninterruptedly since the time of his ancestors for more than 50 years. Even otherwise easement claimed by the Plaintiff is the easement of necessity as the alternative way being availed by the Plaintiff cannot be termed as the way to their field as from the map attached to the plaint and oral evidence on record it would be evident that Plaintiff had to take the bullock-cart to the front side of his house and thereafter he has to unload the agricultural produce and carry it manually through his house.

Relying on the judgment of the Supreme Court in the matter of Umrah Khatoon Vs. Md. Zafir Khan and others, , learned Counsel for the Appellant submitted that where the Plaintiff is exercising the right since long time, the same cannot be denied on technical ground. In the above cited case, the suit of the Plaintiff was decreed by the trial Court which was confirmed in appeal. However, decree of the Plaintiff was set aside by the High Court on the ground that the Plaintiff artistically drafted the plaint but in fact Plaintiff was claiming title to the land.

Further relying on the judgment of the Supreme Court in the matter of Padikal Madappa v. C.B. Kariapa and Anr. (2001) 10 SCC 742 learned Counsel submits that it is not open to the High Court in second appeal to reverse the finding of the trial Court and the view taken by the trial Court should be maintained. In the said case also the suit of the Plaintiff was dismissed with certain directions in regard to the user of the property. The first appellate Court dismissed the appeal and also deleted the directions of the trial Court. However, in second appeal High Court set aside the concurrent finding of fact recorded by both the Courts below without examining the applicability of the rules and in the aforesaid condition the judgment of the High Court was set aside and the judgment and decree of the trial Court was restored.

Further relying upon the judgment in the matter of Pooran (dead) by L.Rs. Sallo Bai and Ors. v. Gahsita and Ors. 2001 (11) MPJR 228 learned Counsel submits that to claim easementary right the Plaintiff is required to assert the hostile claim on the property of others. In the present case also the Plaintiff has established his easementary right by pleading that he was exercising his right over the property since the time of his ancestors and therefore the suit ought to have been decreed.

On the other hand, learned Counsel for the Respondents supported the impugned judgment and decree of the Court below and argued that no substantial question of law as framed is made out for adjudication of this second appeal and the substantial question of law No. 1 that whether the route available as alternative route is efficacious or not, is not involved in this appeal as there is not pleading in the plaint that available route is not officacious and therefore there was no occasion for the parties to lead evidence on this question.

The second substantial question of law framed by the High Court''s while admitting the appeal is in fact question of law as the same is a question with regard to the fining of fact which cannot be looked into at this second appellate stage as the appreciation of the evidence is not permissible at this stage. It is further argued that the Plaintiff has not pleaded that the land was being used for 50 years and therefore, the second question of law that the first appellate Court has failed to see that land in question was used by the Plaintiff for 50 years is not borne out of the pleadings and evidence on record.

Relying on the judgment of the Kerla High Court in the matter of Ibrahimkutty Koyakutty Vs. Abdul Rahumankunju Ibrahimkutty and Others, , and in the matter of Heeralal Vs. Ramjeevan, it is submitted that in a claim for easement right it is all the more necessary that the pleadings should be specific and precise as the right of easement is precarious and special right. Since the Plaintiff has not pleaded the period from which he was exercising the right of easement and the nature of right exercised. The suit could not be decreed. Even otherwise, the Plaintiff exercised the right with the consent of the Defendants which is evident from paragraph 2 of the statement of the Plaintiff.

So far as claim of easement as necessity is concerned, the Plaintiff is required to establish that easementary is an absolute necessity for enjoyment of the property and not the convenient mode of enjoyment of the property. Existence of alternative way howsoever inconvenient it is, is sufficient to reject the claim of easement as necessity.

I have heard learned Counsel for the parties and perused the material available on record.

Learned trial Court decreed the suit even after coming to the conclusion that the Plaintiff and his witnesses have stated that right of way was being exercised since last 40-45 years whereas the Defendants and their witnesses have denied the above right stating that the Defendants had erected the earthen wall long before. However, from the annexure of Schedule-A attached with the plaint it appears that the land of the parties are adjacent and DW-w has admitted that after harvesting the crop these persons used each other''s field for carrying their bullock cart and on the basis of the above statement it has been presumed that there is a way through the field of the Defendants for taking bullock cart to the land of the Plaintiff and on the basis of the above presumption issued No. 1 and 1-A have been decided in favour of the Plaintiff. However, the above finding has been reversed by the appellate Court by the impugned judgment and decree on the ground that evidence led by the Plaintiff is contradictory and is not reliable. On the basis of evidence on record the appellate Court has arrived at the conclusion that right of way exercised by the Plaintiff if any was being exercised with the consent of the Defendants and therefore it does not amount to easementary right as defined in the Easement Act. The finding of the first appellate Court is based on oral evidence available on record as PW-3, PW-4 and PW-5 have expressed their ignorance whether the said right was being exercised with the permission of the Defendants whereas the Plaintiffs witness PW-2 has admitted that the above right was exercised by them with the consent of the Defendants. Therefore, the finding recorded by the Court below that the right was being exercised with the consent of the Defendants is a finding of fact and the same is not perverse. So far as the easement of necessity is concerned it is not disputed that the Plaintiff is using the alternative route through his own land. Thus in the light of the above judgment of Kerala High Court the easement of necessity does not survive where the alternative route is available to the Plaintiff.

Thus, on the basis of aforesaid discussion this Court is of the view that the suit has been rightly dismissed as the Court below has rightly arrived at the conclusion that the Plaintiff has failed to prove that by a long user he has perfected his easementary right by perfection over the land of the Defendants and once the alternative route is available to the Plaintiff, the right of easement of necessity is not available.

In the result the appeal being devoid of substance is hereby dismissed.