Surja vs Har Chand

N.K. Kapoor, J.—This is plaintiff''s regular second appeal.

The plaintiff failed a suit for declaration to the effect that he has been using path comprised in Killa No. 78/2 and 9 for reaching his fields comprised in Khasra Nos. 78/10,11.12,19 and 20 since the year 1964 and there is no other passage to reach this land and this way he got a right of easement of necessity of prescription.

The defendant contested the suit on the grounds that civil Court has got no jurisdiction; that the plaint has not been properly verified; that the plaintiff has no cause of action; that the plaintiff has no locus standi to file the present suit and that the plaintiff has not moved the court with clean hands. On merits, it was urged that there exists no passage over Killa Nos. 2 and 9 of Rectangle No. 78 and, therefore, suit of the plaintiff in the present form is not maintainable. It was further urged that, in fact, the plaintiff is using a passage which is in Rectangle No. 84, which area is owned and possessed by the plaintiff is using a passage which is in Rectangle No. 84, which are is owned and possessed by the plaintiff and so it was prayed that suit of the plaintiff be dismissed.

On the pleadings of the parties, following issues were framed:-

Whether Rasta in dispute is in existence on the spot as alleged; if so, its effect? OP P.

Whether this Court has jurisdiction to try the present suit? OPD

Whether no cause of action is accrued in favour of the plaintiff to file the present suit? OPD.

Whether the plaintiff has no locus standi to file the present suit? OPD.

Whether the suit is not maintainable in the present form? OPD.

Whether the suit is bad under Order 7 Rules 1 and 2 CPC? OPD.

Relief.

Under issues No, 1 and 3 that trial Court came to the conclusion that there existed no path in the land in dispute. !t was also observed that the land comprised in Killa No. 22, 2/2 which is jointly owned by Budh Ram and Amar Singh is quite adjacent to the land of the plaintiff and so he can lay cliam, if so permitted by law, in respect of this area by way of easement. However, it was help that no case for eassement of necessity was made out by the plaintiff. Issue No, 2 was not pressed and so the same was decided against the defendant. Issue No. 4 was decided against the plaintiff holding that he has no locus standi to file the present suit, Issue No. 5 too was decided against the plaintiff and it was held that the suit is not maintainable in the present form. issue No, 6 was not pressed. Consequently, the suit of the plaintiff was dismissed.

The appellate Court once again examined the matter. The lower appellate" Court firstly referred to the recital of the sale deed Exhibit P-2 wherein no mention was made with regard to the existence of path over Killa Nos. 2 and 9 of Rectangle No. 78. Even the akas sajra Exhibit P-1 showed the existence of path Point A to 6 only. Point B is at the corner of rectangle No. 78. Even as per revenue record, no sanctioned passage existed beyond point B. Since the appellant claimed pasage from B to C, the appellate Court after referring to the documentary evidence found no merit in the plea of the appellant and so affirmed the finding of the trial Court in this regard. The lower appellate Court examined the plea of the appellant with regard to his claim on the ground of easement of necessity, but found this plea also without any merit. The appeal consequently too was dismissed by the Additional District Judge,.

The first submission of the Learned Counsel for the appellant is that both the Courts have erred in law in not properly perusing the evidence on record which has consequently resulted in passing of the impugned judgment and decree by the Courts below. According to the counsel, the Courts below have either misread evidence or have not taken into consideration and this way both the judgments are vitiated and are liable to be set aside. The counsel when pressed to point out the evidence which has not been considered by the Courts below or the evidence which the Courts have misread, he failed to precisely pin point the same by referring to the oral deposition of the witness or to the documentary evidence led by the parties.

As per plaint, it is the case of the plaintiff that he has been using part of land comprised in Killa Nos. 2 and 9 of Rectangle No. 78 as a path to reach his fields situated in rectangle No. 78 Killa Nos. 10, 11, 13, 19 and 20 since 1964 when he purchased the land by means of registered sale deed dated 21.3.1964 and this way has acquired right of easement by prescription as well as by way of necessity to use such a path.

The lower appellate Court firstly referred to the sale deed Exhibit P-2 and observed that the recitals in the sale deed are altogether silent as to the existence of any path comprised in Killa No. 2 and 9 of rectangle No. 78. Not only this, reference was made to the statement of Har Chand DW 1 who had been cultivating the land comprised in rectangle No. 78 Killa No. 2 and 9 as a tenant at will before he purchased the same. This witness clearly stated that no such path existed in this land for going to the land of the plaintiff which statement was corroborated by Ram Chander DW 2, The appellate Court also relied upon the statement of Ram Lal Bimal, DW 3 who was appointed as a Local Commissioner and his report is Exhibit DW 3/A and site plan is Exhibit DW 3/B and so came to the conclusion that the plaintiff, in fact, miserably failed to prove on record that he has been enjoying the use of this path for a period of 20 years without any interruption as envisaged by Section 15 of the Easement Act. The case of the plaintiff was not better with regard to his claim as easment of necessity. Easement of necessity is one which the law creates according to doctrine of implied grant in a particular case and is one without which the dominant tenement cannot be used at all i. e. of say that the land of the plaintiff is surrounded on alt sides by the land belonging to third person and the only way of access is over the contiguous land of the guarantor. Thus it is to be established that the property cannot be used at all without grant of easement of necessity. Such a right cannot be granted merely on account of convenience. Viewed thus too, the plaintiff has failed to make out a case for grant of easement on account of necessity either. The appeal is thus devoid of merit and consequently the same is dismissed.