Shiva Nand vs Sukh Lal Sharma & Others

Rakesh Kainthla, J

The present appeal is directed against the judgment and decree dated 09.01.2009, passed by learned District Judge (Forest) Shimla, H.P. (learned Appellate Court) vide which the judgment and decree dated 07.09.2006, passed by learned Civil Judge (Junior Division), Court No. 4, Shimla, H.P. (learned Trial Court) were set aside. (For the sake of convenience, the parties shall be referred to in the same manner as they were arrayed before the learned Trial court.

Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit for seeking permanent prohibitory injunction for restraining the defendants from interfering with the use of 3 feet wide common passage leading from the main bus stand municipal road Annadale Shimla to the plaintiff's property comprised in Kharsa No. 360 and 361 (old Kharsa No. 595 Min) measuring 201 Sq. Meters situated at Up Muhal Kaithu-1, Tehsil & District Shimla, H.P., as identified in red colour in the site plan, from raising any construction on the passage or from obstructing the passage in any manner whatsoever. A mandatory injunction for removing the obstruction caused to the passage was also sought. It was asserted that the plaintiff is the owner in possession of the building built on Khasra Nos. 360 and 361, which he had purchased from Hira Singh vide sale deed dated 03/06/1991, registered in the office of the Sub Registrar, Shimla, at Sl. No. 150, Book No. 1, Volume 8, Page 57. The plaintiff's property is accessible only through a 10-feet-wide common passage commencing from the main bus stand municipal road to Annadale, Shimla, to the plaintiff's property. The adjoining owners have encroached upon the passage, and only 3 feet wide passage has been left. The plaintiff was using the passage continuously, uninterruptedly, openly to the knowledge of all concerned for more than 20 years before filing the suit, and within 2 years next to the filing of the present suit, within the meaning of Section 15 of the Indian Easement Act, and he has acquired a right of use by way of prescription. No other convenient passage is available to the plaintiff. The plaintiff would be confined to his house in case of obstruction to the passage. The defendants are bent on obstructing the passage despite requests. Hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by filing a written statement by defendants No. 1 taking preliminary objections regarding lack of maintainability, locus standi, jurisdiction and cause of action, the plaintiff having suppressed the material facts from the Court, the suit being bad for nonjoinder of necessary parties, the plaintiff being estopped to file the present suit by his acts, conduct, omission, admission and acquiescence, the suit having not been properly valued for Court fees and jurisdiction and the suit property having not been properly identified. The contents of the plaint were denied on the merits. It was asserted that the identification made by the plaintiff in the site plan is wrong and incorrect. The plaintiff has other passages, and he has been using those passages. He has no right to claim the passage through the property of the defendants; hence, it was prayed that the present suit be dismissed.

A replication denying the contents of the written statement and affirming those of the plaint was filed.

The Ld. trial Court framed the following issues on 15/11/2000: -

Whether there exists a common path 3 ft wide from the Main Bus Stand, M.C.Road, Annadale, to the property of the plaintiff, as alleged?OPP

If the issue is in affirmative, whether this is the only accessible path to the property of the plaintiff, as alleged? OPP

Whether the plaintiff has right over on the aforesaid path by way of prescription as alleged? OPP.

Whether the plaintiff is entitled to permanent prohibitory injunction, as alleged? OPP.

Whether the plaintiff is entitled to mandatory injuncation, as alleged? OPP

Whether the present suit is not maintainable, as alleged? OPD.

Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD.

Whether the plaintiff is estoppsed to file the suit, as alleged? OPD.

Whether the plaintiff has no enforceable cause of action, as alleged? OPD.

Whether the suit is not properly valued for the purpose of court fees and jurisdiction, as alleged? OPD.

Relief

The parties were called upon to produce the evidence, and plaintiff examined Pitamber Sharma (PW-1), Bhupinder Sood (PW-2), Satya Sharma (PW-3), Janak Singh (PW-4), Sumeet Khera (PW-5) and himself (PW-6). The defendants examined Shashi Thakur (DW-1), Defendant No. 1 (DW-2), Ravinder Nath (DW-3), Nand Parkash Thakur (DW-4), Defendant No. 2 (DW-5) and Govind Ram (DW-6)

Learned Trial Court held that the plaintiff purchased the land with all easementary rights, including the right of way. He has shown a path leading to his house through the houses of Kundan Lal and Ram Parkash. Sukh Lal (DW-2) admitted that the passage starts from Annadale Chowk, passes through the house of Nikka Ram and goes down, which shows that a passage exists on the spot. This fact was also admitted by other witnesses. The defendants had no right to block the passage. The learned Trial Court answered issues No.1, 3, 4 and 5 in the affirmative, the rest of the issues in the negative and decreed the suit of the plaintiff.

Being aggrieved by the judgment and decree passed by the learned Trial Court, defendant No.1 Sukh Lal Sharma filed an appeal, which was decided by the learned District Judge (Forests), Shimla (Learned Appellate Court). The learned Appellate Court held that the proper description of the passage was not given. The passage depicted in the site plan was different from the passage described in the evidence. The plaintiff's claim that he had acquired the right to use the passage by way of easement was not established. The plaintiff had shown the path to his house from the land of Ram Prakash, etc., in the building plan submitted to the Municipal Corporation, Shimla. The failure to mention the disputed passage in the building plan falsifies the plaintiff's claim regarding the existence of the passage. Learned Trial Court had failed to advert to these aspects; hence, the judgment and decree passed by the learned Trial Court were not sustainable. Consequently, the learned Appellate Court set aside the judgment and decree passed by the learned Trial Court, and dismissed the plaintiff's suit.

Being aggrieved by the judgment and decree passed by the Ld. Appellate Court; the plaintiff has filed the present appeal, which was admitted on the following substantial questions of law on 18/06/2009.

Whether the Ld. First Appellate Court committed error of law by applying ingredients and requirements of easement of necessity when the plaintiff has claimed easement by prescription in paint?

Whether the suit path has been properly identified in accordance with law?

I have heard Mr Ashok Sood, learned Senior Counsel, assisted by Mr Abhishek Sood, learned counsel for the appellant/ plaintiff, and Mr B.S. Chauhan, learned Senior Counsel, assisted by Mr Munish Dhatwalia, learned counsel for respondents/defendants No. 1 and 2.

Mr Ashok Sood, learned Senior Counsel for the appellant/plaintiff, submitted that the learned Trial Court had rightly held that the existence of the passage was proved on record. The plaintiff had been using it as a matter of right and had acquired a right by way of prescription. Learned Appellate Court erred in holding that the passage was not properly identified and the plaintiff had no right of easement. The plaintiff had categorically stated that he was using the passage as a matter of right, openly, peaceably and uninterruptedly. All the ingredients of the acquisition of right by way of prescription were fulfilled. Therefore, he prayed that the present appeal be allowed and the judgment and decree passed by the Learned Appellate Court be set aside. He relied upon the following judgments in support of his submission: -

Nago and another vs. Mt. Lahani A.I.R. 1937 Nagpur 38;

Narayanan Nair and another vs. Mariamma Kurien and another (1988) 3 KerLJ 551: (1988) 2 KLT 486;

R. Sengoda Gounder and 5 others vs. Sengoda Gounder and 5 others (1999) AIHC 2597;

Varkey Joseph vs. Mathai Kuriakose 1992 Civil Court cases 686 (KERALA);

Manikrao s/o Naryanrao Bhoge & Ors. vs. Maheshkumar s/o Bansilal Vyas and Anr. 2011 (4) Civil Court Cases 307 (Bombay);

Marthoma Syrian Church vs. Jessie Thampi 2020(3) Civil Court Cases 327 (Kerala)

Justiniano Antao and others vs. Bernadette B. Pereria (Smt) (2005) 1 SCC 471

Subhaga and others vs. Shobha and others (2006) 5 SCC 466

P. Rajagurusamy vs. Sub-Registrar, Alandur at Nanganallur, Chennai & others AIR 2008 Madra 71

Zarif Ahmad (dead), through legal representatives and another, vs. Mohd. Farooq (2015) 13 SCC 673;

Raja Maya Gounder vs. Vedi Raj (Died) and others AIR 2020 Madras 72: AIR Online 2020 Mad 5;

Varinder Kumar vs. State of Himachal Pradesh (2020) 3 SCC 321: and

Biraji alias Brijraji and another vs. Surya Pratap and others (2020) 10 SCC 729.

Mr B.S. Chauhan, learned Senior counsel for respondents No. 1 and 2, submitted that the learned Trial Court had erred in holding that a passage existed on the land of respondents No. 1 and 2. The Learned Appellate Court had rightly pointed out that no such passage was shown in the building plan submitted to the Municipal Corporation, Shimla. No such passage was recorded in the sale deed executed in the plaintiff's favour. The plaintiff and his witness admitted the existence of an alternate passage, and the right of easement by way of necessity was not available to the plaintiff. There is no infirmity in the judgment and decree passed by the Learned Appellate Court. Hence, he prayed that the present appeal be dismissed.

I have given a considerable thought to the submissions made at the bar and have gone through the records carefully.

Substantial question of law No.1

The High Court of Calcutta enumerated three kinds of rights of way in Chuni Lal v. Ram Kissen Sahu (1888) 15 Cal. 46 (F.B.):

"First, there are private rights in the strict sense of the term, vested in particular individuals or the owners of particular tenements, and such rights commonly have their origin in grant or prescription. Secondly, there are rights belonging to certain classes of persons (certain portions of the public, such as the freemen of a city, the tenants of a manor or the inhabitants of a parish or village. Such rights commonly have their origin in custom. Thirdly, there are public rights in the full sense of the term which exist for the benefit of all the Queen's subjects; and the sense of these is ordinarily dedication."

The plaintiff asserted in paragraph 3 of the plaint that he was using the passage continuously, openly to the knowledge of all concerned and had acquired a right of use by way of prescription. He had also asserted in paragraph 4 of the plaint that there was no other convenient, easily available, accessible passage to the plaintiff's property except the passage mentioned above, and in case of obstruction to the passage, the plaintiff would be confined to his property and would not be in a position to utilise his property in any manner. Thus, it is apparent that the plaintiff had pleaded the easement of prescription and necessity.

The plaintiff Shiva Nand (PW-6) stated in his examination-in-chief that the disputed passage is the only passage available to his land. Therefore, he had also claimed on oath that the disputed passage was the only passage available on record. Therefore, the learned Appellate Court was justified in discussing the plaintiff's claim regarding the availability of an easement by way of necessity, and no fault can be found with the approach of the learned Appellate Court.

Mr Ashok Sood, learned Senior Counsel for the appellant/ plaintiff, confined his claim to the easement by way of prescription and rightly so because plaintiff Shiva Nand admitted in his cross-examination that he had shown the passage to his land in his building plan through the land of Ram Prakash. Ram Prakash and Chauhan had executed an affidavit permitting the plaintiff to use their land. This admission clearly shows that an alternative passage is available to the plaintiff, and the owners had executed an affidavit in his favour permitting the use of the land by them. Satya Sharma (PW-3) admitted in her cross-examination that she uses the common passage, which is also being used by the plaintiff. She also admitted that the plaintiff had taken the construction material from the common passage. These admissions show that the plaintiff has an alternative common passage available to him, and the plea taken by him that he would be confined to his land in case of obstruction of the passage is not correct.

The plaintiff admitted in his cross-examination that the path claimed by him in the suit is more convenient to him than the other path; therefore, he wants to use this path. This admission also shows that the necessity is not absolute but convenient, and the plaintiff cannot claim the right by way of necessity. It was laid down by the Karnataka High Court in Thulahalli Kotrabasappa v. Pujari Rangappa, 1995 SCC OnLine Kar 320: (1996) 2 Kant LJ 605 that an easement of necessity can be claimed if the necessity is absolute and not merely convenient. It was observed at page 615:

"19. That the learned Counsel for the appellant has placed reliance on clause (a) of Section 13. The necessary ingredients of Section 13(a) are that the person claiming easement of necessity must be a person who has acquired the property by transfer or bequest from someone, and to enjoy that easement in other property of the transferor or testator is necessary, then the transferee, according to Section 13(a), will be entitled to such easement. The section provides that the easement on the other immovable property of the transferor should be by way of necessity. The question is what is meant by necessity. In other words, necessity means absolute necessity and not as a matter of mere convenience, i.e., in the sense that the claimant cannot enjoy his own property by any other mode. If the right of passage by easement of necessity is claimed, then it must be shown that the claimant cannot reasonably make use of his property or cannot reach his property, except without an easement of passage being provided over other property of the transferor. In other words, if, in the normal course, another passage is available for reaching his property by the claimant, then the claimant may not be entitled to claim the right of easement of necessity with respect to the other property of the transferor. In the present case, it is admitted between the parties that there is an alternative passage available to the defendant-appellant in the form of Kottur Road. By using that the defendant can reach his field or land and can make use of his land. The learned Counsel for the appellant submitted that no doubt, the road is there, but the passage through route 'B', that is, through the land of the plaintiffs-respondents, is more convenient and has been enjoyed by the plaintiff as well as by him (defendant), so, he (defendant) is entitled to that. The basic thing is that whether enjoyment of easement over other property of vendor is necessary for beneficial enjoyment of land or property transferred to him by vendor, and if passage or way over the land of the respondent is not necessary for the appellant to reach his land he has got alternative ways, then, the appellant is not entitled to claim easement under Section 13(a). I am of the opinion that in the present case, the appellant has an alternative passage through the Road, so no case of easement of necessity has been made out.

I find support for my above view from the decision of the Division Bench of the Calcutta High Court in the case of Kali Pada Bose's case, supra, in which the Division Bench has observed;

"It is perfectly true that the general rule is that there cannot be an easement of necessity if there is an alternative route or way. But where the finding is that the alternative route is extremely impassable, it amounts to this that the way which is claimed by the plaintiff and which is claimed by them was a way of necessity, to be the only way available to them".

In the present case, it has not been shown that the alternative route or passage is impassable. I further find support from the decision of the Madras High Court in Mariyayi Ammal's case, supra, in which, dealing with the case of easement of necessity, Mr Justice Krishnaswami Naidu has been pleased to observe as under:

"Necessity in the sense of being indispensable must be established, and without which the property could not be enjoyed at all or without which there can be no access to the Southern Lane. Such is not the case here.

It may be inconvenient to proceed to the North, go to the Public Road, then enter the Main Road on the West and then reach the Southern Lane. But, that is no consideration why the defendants should be allowed to put the plaintiff to inconvenience and annoyance, when the right which the defendants claim has not been acquired by prescription.

The necessity must be an absolute necessity and not a convenient mode of enjoyment of the property, and that is also the view taken in (Saripella) Venkatapathiraju v. (Saripella) Subbaraju [AIR 1930 Mad. 789: AIR V 17(B).], where it was observed that an easement of necessity is an easement without which the property cannot be used at all and not merely one for reasonable enjoyment of the property and that in considering questions of easements of necessity, convenience is not the test, but absolute necessity.

Section 13 of the Easement Act contemplates that an easement which has been claimed as an easement of necessity can be claimed as the only possible mode of enjoyment of the right claimed, having regard to the normal way of life of persons who claim and of persons belonging to that category. In Andanappa's case, the Hon'ble Mr Justice Somnath Iyer, of this Court, has been pleased to observe and lay down as under:

"It is, of course, a well-known rule that an easement of necessity could be claimed only when it is necessary for the plaintiff to exercise that right for the reasonable enjoyment of his own property, which cannot be otherwise enjoyed. It is also an equally well known rule that if the right claimed by way of an easement of necessity is the right of way and there are more ways than one from which the plaintiff could reach his own property, he would not be entitled, if he could reach his property by the other way, to claim a right of way over the defendants' land".

That same view has been laid by this Court in the case of Mujoor Govinda Bhatta v. Mujoor Krishna Bhatta [1969 (1) Mys. L.J. 226.] and Baburao Yashvantrao Jadhav v. Shamarao Khandi Jadhav [1992 (1) Kar. L.J. 164: AIR 1992 Kant. 181.], as well as by other High Courts. The Allahabad High Court in the case of Narayani, supra.

These cases clearly lay down the principle that if a person, claiming easement of necessity, has more than one way to reach his property and to enjoy thereby, then there will be no such thing as right of easement of necessity being available to the claimant. This being the settled principle of law as laid down in the above decisions including of this Court it does boil out that when the appellant has got another way marked 'A' in the plan, he can reach his field by user of that way, he is not entitled to claim or got any right of easement of necessity under Section 13 of the Easement Act to have a passage or to pass through route 'B' running through the land of the plaintiff and as such, in my opinion, the Courts below have rightly recorded the finding that defendant had failed to prove easement of necessity."

Thus, the learned Appellate Court had rightly negated the claim of necessity.

The plaintiff claimed that his predecessor was using the passage, and he had transferred the passage to the plaintiff by Sale deed. This claim is not supported by the Sale Deed (Ext.PW-1/A) filed by him, as no such passage has been mentioned in it. Mr Ashok Sood, learned Senior Counsel, referred to paragraph 5 of the Sale Deed, in which it was mentioned that the old and existing passage could be used by the purchaser; otherwise, it would be the duty of the owner to provide the passage. This averment merely shows that the purchaser would be entitled to use the existing and prevalent passages, but does not describe the passages that would be available for the plaintiff to use.

Learned Appellate Court had rightly held that the failure to mention the disputed passage in the building plan by the plaintiff falsifies his claim that he was using the disputed passage. The plaintiff would have described the disputed passage in the building plan had he been using the passage, and the failure to mention the disputed passage falsifies his claim that he was using the passage.

Satya Sharma (PW-3) stated in her cross-examination that she was not aware that the houses of Kundan Lal and Ram Prakash are located adjacent to the disputed passage. She was not aware that a passage leads to the house of Ram Prakash from the MC road, which is also being used by the plaintiff. These admissions in the cross-examination show that she is not aware of the location of the disputed passage, and that is why, she could not describe the houses located in the vicinity. She also stated that she was not aware of the land owned by Hira Singh, and she could not say the Khasra numbers sold by him to the plaintiff and other persons. These admissions show that she could not be trusted with the location and the use of the land, and her testimony cannot be used to establish the plaintiff's claim.

Janak Singh (PW-4) stated that all the people used the land of Nikka Ram as a passage. His father had sold the land to the plaintiff. The plaintiff had taken the construction material through the disputed passage. He stated in his cross-examination that defendants No. 1 and 2 had purchased the land from Nikka Ram. He admitted that a retaining wall has been constructed in front of the houses of the defendants. Many passages are available on the spot, and the disputed passage is one of those passages.

The statement of this witness is also not satisfactory, as he has failed to establish the existence of the passage. He claimed that the plaintiff had taken his construction material through a disputed passage, which is contrary to the statement of Satya Sharma that the construction material was taken through the common passage. The fact that the passage has not been described in the sale deed would falsify his claim that the passage was being used by his father and was sold to the plaintiff.

Therefore, the findings recorded by the learned appellate Court that the plaintiff had failed to prove the existence of the passage and its use as a matter of right were based upon the material on record, and there is no perversity in them.

It was held in Varkey Joseph (supra) that the alternative pathway does not prohibits a person to claim the easement by way of prescription. There can be no dispute with this proposition of law. However, in the present case, the plaintiff has failed to prove the right of easement by way of prescription; hence, the cited judgment does not apply to the facts of the case.

In Marthoma Syrian (supra) and Raja Maya Gounder (supra), the ingredients of easement by way of prescription have been given. Similarly, in Nago and another (supra), it has been held that continuous use will confer a right of easement. In the present case, continuous use has not been established, and no advantage can be derived from the cited judgment. In Manikrao (supra), it was held that the existence of an alternative passage will not defeat the claim of easement by way of prescription. The plaintiff failed to satisfy the ingredients of easement or prescription, and this judgment does not apply to the present case. In P. Rajagurusamy (Srupa), the procedure for registration has been explained, and in Biraji (supra), the law related to adoption and maintenance has been dealt with, which is not relevant. Justiniano (supra) deals with necessity, and it is not relevant. Therefore, none of the cited judgments applies to the facts of the present case.

Thus, the Learned Appellate Court had rightly held that the plaintiff had failed to prove the easement of necessity and prescription, and this substantial question of law is answered accordingly.

Substantial question of law No.2.

The plaintiff asserted in paragraph 2 of the plaint that the passage for identification was described in red colour in the site plan submitted with the plaint. Learned Trial Court had rightly pointed out that no such plan showing the passage in red was available on record. The site plan (Ext.PW1/C) showed a passage, but it was not marked in red colour. Further, it is a site to the house of Chuni Lal Kaushal, defendant No.2 and does not mention the house of Shiva Nand. The site plan (Ext.PW-2/A) of the proposed house of the plaintiff showed a passage, but it is not adjacent to the houses of the defendants. It was laid down by this Court in Savitri Devi vs. Gauri Dutt 2000(1) S.L.J.404 that where the path has not been properly described, a right of way cannot be claimed. It was observed:

"At the very outset, it may be stated that there are no specific pleadings with regard to the plaintiffs having acquired the right of easement of passage by way of prescription. So much so that no point of ingress or outgress of the alleged passage has been identified. Nor is there anything on the record to show as to what is the direction of the passage and as to what is the width of the passage, which is alleged to have been used by the plaintiffs since 1943. In the absence of requisite pleadings as to the acquisition of easementary right of passage by way of prescription and in the absence of specific identification of the passage, the learned first Appellate Court has rightly held that the plaintiffs have not acquired a right of easement of passage through the land in dispute."

Plaintiff Shiva Nand (PW-6), in his cross-examination, stated that he had shown the passage to the Committee passing through the land of Ram Parkash and Chauhan, who had executed an affidavit in his favour. The site (Ext.PW-5/A) shows a passage inside the red circle 'A', however, this site plan is illegible and the house of Nek Ram can be read, therefore, this passage is not connected to the plaintiff's house, and the findings recorded by the learned Appellate Court that passage was not properly identified cannot be faulted and this substantial question of law is answered accordingly.

Final Order:

In view of the above, the present appeal fails, and it is dismissed, so also the pending application(s), if any.

The record of the learned Courts below be returned along with a copy of this judgment.