Equivalent Citation: 2011(5)ALLMR62, 2011(6)BomCR66, 2011(5)MhLj345
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Second Appeal No. 55/1995
Decided On: 30.06.2011
Manikrao S/o Narayanrao Bhoge and Ors.
Shri Maheshkumar S/o Bansilal Vyas and Shri Mahadeorao S/o Nathuji Ugale
Shri Maheshkumar S/o Bansilal Vyas and Shri Mahadeorao S/o Nathuji Ugale
A.B. Chaudhari, J.
A.B. Chaudhari, J.
Property - Injunction - Easementry Right - Present appeal filed against order by which lower Appellate court reversed judgment and decree passed in Appellant's suit filed for declaration for right or way and for perpetual and mandatory injunction in relation to way shown by letters A1 to A7 for approaching to their respective fields - Held, there was so many other fields in between point A-1 to A-6 - Way passes over boundaries of other fields which includes other relevant field - However, owners of these fields must have not objected to user and therefore, they are not arrayed as Defendants in this suit - This also supports Appellant's case - Said owner have tacitly admitted Appellant's right of way and therefore, they did not raise objection - It was clearly established right acquired by Appellants by prescription and first appellate Court committed error in recording finding that there was no easementary right by way of prescription - Finding recorded by first appellate Court that they had alternate available to approach their respective fields by crossing big Nullah appears to be perverse since trial Court has clearly held that Nullah is big Nullah - It is difficult to believe that farmers would be able to go to their respective fields with bullock carts and luggages during rainy season when Nullah would flow - It cannot be said that that was matter of mere convenience of Appellant - Hence, said prescriptive right ought to have been granted by appellate Court - For these reasons, Second Appeal allowed - Judgment and decree passed by lower appellate Court is set aside - Judgment and decree passed by trial Court is restored
1. Being aggrieved by the judgment and decree dated 12.9.1994 in Regular Civil Appeal No. 398/1987 by which the first appellate Court reversed the judgment and decree dated 28.7.1987 passed by the 4th Joint Civil Judge, Junior Division, Amravati in Regular Civil Suit No. 439/1982, the present appeal was filed by the Appellants.
2. Appellants the original Plaintiffs brought suit bearing Regular Civil Suit No. 439/1982 for declaration for right or way and for perpetual and mandatory injunction in relation to the way shown by letters A1 to A7 for approaching to their respective fields. They filed a map along with plaint. There is ama in road going from Amravati to Walgaon. There is also a Government link road shown by letters A1, A2,B1, B2 and B3 which runs from Changapur Phata to village Changapur. This link road joins Amravati-Walgaon road A1 and passes through field Survey Nos. 35and 34. All the Appellants/Plaintiffs reach to the irrespective fields by the said link road from A1 to A2and they turn to South and go along the road shown by letters A3 to A6 through field Survey Nos. 25, 34, 30,29, 28 and then 26. After crossing Nallah they reach to point A7. The suit way is of 10 ft. width and was being used for more than 50 years.
3. The Appellants/Plaintiffs have an easement of necessity as well as respective easement for user for the said way. But the Defendants-Respondents herein obstructed the said way by digging ditches or creating obstacle at point A3 and A4 shown by redcolour in the map and that is why the suit came to be filed. The Respondents-Defendants refused the claim of the Plaintiffs and denied all material allegations. Needless to say they denied the existence of way of10 ft. width under any right much less customary right, easementary right or by way of necessity.
4. The trial Court framed issues numbering six and the parties led evidence before the trial Court oral as well as documentary. The trial Court decreed the suit and allowed the Plaintiffs to use the said way claimed by them. On appeal, the appellate Court reversed the judgment of the trial Court and held otherwise on all the points.
5. Advocate Shri C.S. Kaptan for the Appellants made the following submissions:
(i) The appellate Court committed an error in reversing the finding that there was a customary way though it concurred with the trial Court that the Appellants had proved by oral evidence that the way was being used for the last 30-35 years. But according to the appellate Court, 30-35 years could not be said to be a period giving rise to any customary right of way which according to learned Counsel for the Appellants is a wrong finding of fact and destructive of the concept of customary way.
(ii) The appellate Court also erred in reversing the finding on the question of right of way under Section 15 of the Indian Easements Act, 1882 byway of prescription without recording any cogent reasons and wrongly held that convenience of the Appellants/Plaintiffs could not be the criterion to hold such a right under Section 15 of the Indian Easements Act. Not only that according to learned Counsel for the Appellants, the appellate Court for no reasons took into consideration the provisions of Section 13 of the Indian Easements Act when Section 15 of the Indian Easements Act operates independently having its separate ingredients to be satisfied by the Plaintiffs. The trial Court recorded a finding that there was a satisfactory evidence for satisfying ingredients of Section 15 of the Indian Easements Act to which the appellate Court did not have any answer. The appellate Court erred in relying upon Rule 9 of the Bombay Boundary Marks Rules framed under Section 142 of the Maharashtra Land Revenue Code, 1966 which has nothing to do with Section 15 of the Indian Easements Act. The appellate Court further erred in holding that the use made by the Plaintiffs Appellants was permissive use of way of right in the absence of any evidence from the Defendants. He, therefore, prayed for restoration of the judgment of the trial Court.
6. Per contra, Advocate Shri J.B. Kasat for the Respondents supported the first appellate Court judgment and argued that there are findings of facts recorded by the first appellate Court and therefore, this Court should not interfere in the second appeal in which no substantial question of law arises. According to him, the Appellants/Plaintiffs miserably failed to prove any right of way much less existence of way and were trying to create a new way. Reading the reasons given by the appellate Court, learned Counsel for the Respondents urged this Court to dismiss the appeal with costs.
7. I have heard learned Counsel for the rival parties. I have gone through the impugned judgments and decrees passed by both the Courts below so also the evidence tendered by both the parties documentary as well as oral evidence. In my opinion, following substantial questions of law arise for consideration.
(i) Whether the Appellants/Plaintiff shad proved customary easement as contemplated by Section 18 of the Indian Easements Act for right to use suit way ? ... No.
(ii) Whether the Appellants/Plaintiffs had proved easement of necessity as contemplated by Section 13 of the Indian Easements Act ? ...No.
(iii) Whether Sections 13 and 15 of the Indian Easements Act are independent provisions in the matter of claim for easements there under ? ... Yes.
(iv) Whether the Appellants/Plaintiff shad proved easementary right of way by prescription within the meaning of Section 15 of the Indian Easements Act ? ... Yes.
(v) What order ?
Ans.: Second appeal is allowed.
8. Easements are certain rights in the property of another (jura in re aliena). Section 12 of the Indian Easements Act (hereinafter referred to as 'the Act' ) provides as to who may acquire easements. The owner or on his behalf a person in possession of the immovable property can acquire easement for beneficial enjoyment of which right is created. Similarly one of two or more co-owners without consent of other can also acquire the same. But a lessee with a view to enjoy his owned other immovable property can not acquire.
9. Taking up the first question framed above for consideration it relates to the customary easement. Section 18 of the Indian Easements Act reads thus.
18. Customary easements. -An easement may be acquired in virtue of a local custom. Such easements are called customary easements.?
10. In Halsbury's Laws of England, Third Edition, Vol. II under Article 294 the word custom has been defined thus:
A custom is a particular rule which exists either actually or presumptively from time immemorial and has obtained the force of law in a particular locality.?
In the case of Lakshmidhar Misra v. Rangalal, reported in MANU/PR/0054/1949 : AIR 1950 PC 56, the Privy Council observed in page No. 59 of the report thus:
A customary right can exist only in relation to the inhabitants of a district and it cannot be claimed in respect of the public at large. Fitch v. Rawling (1795) 2 H BI 393 : 3 RR 425. The custom, if established makes the local law of the district and it creates a right in each of the inhabitants irrespective of his estate or interest in any particular property.?
11. It is, thus, clear that the Appellants/Plaintiffs were required to plead and prove the local custom of the nature stated above.
12. I have perused the plaint. I find that the Appellants/Plaintiffs did not aver that there was any local custom. All what was claimed was that the suit way was the customary way which the Plaintiffs were using for the last 50 years. However, the plaint is completely silent as to the existence of any local custom as required for proving customary easement. Apart from that both the Courts have concurrently recorded a finding that the suit way was not proved to have been used beyond 30-35 years. I, thus, come to a conclusion that the Appellants/Plaintiffs failed to prove existence of customary easement within the meaning of Section 18 of the Act and hence, question No. 1 is answered in the negative.
13. Section 13 of the Indian Easements Act reads thus:
13. Easements of necessity and quasi-easements. -Where one person transfers or bequeaths immovable property to another,
(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; orThe easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity.
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement; or
(c) if an easement in the subject of the transfer or bequest is necessary, for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
Where a partition is made of the joint property of several person,--
(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.
14. This section provides for easements of necessity and quasi-easements. The easements of necessity have been stated in Section 13 (a), (c) and (e) while quasi-easements are mentioned in Section 13 (b), (d) and (f). The easement of necessity thus cannot travel beyond what has been stated in Section 13 (a), (c) and (e) and must flow from the incident of transfer or bequeath or partition of immovable properties. In the case at hand, by only stating in the plaint that the suit way was only way available and therefore, there was easement of necessity does not make it the easement of necessity in law or within the meaning of Section 13 (a), (c)and (e)of the Act. In the instant case there is no claim for any quasi-easements. Therefore, the claim for easement of necessity will have to be answered against the Appellants/Plaintiffs and consequently, question No. 2 will have to be answered in the negative.
15. Question Nos. 3 and 4 are taken up together since they are interrelated. Section 15 of the Indian Easements Act reads thus.
15. Acquisition by prescription. -Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land, or things affixed thereto, has been peaceably received by another person's land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement, shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
Explanation I. -Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.
Explanation II. -Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorizing the same to be made.
Explanation III.-Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.
Explanation IV.-In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.
When the property over which a right is claimed under this section belongs to the [Government], this section shall be read as if, for the words [twenty years] the words [thirty years] where substituted.?
16. Prescriptive right is founded on utility rather than on equity. In the above provisions of Section 15 of the Act period of 20 years is mentioned in respect of private persons while period of 30 year sis mentioned in respect of Government properties. The time necessary for giving rise to the presumption has been different in different nations and even different at different periods in the history of the same nation. Among Romans at one time possession once obtained nec vi, nec clam, nec precario could not be disturbed by force. This was changed by Justinian to twenty years in the case of those present. Justinian was emperor and had gained fame as Legislator.
17. Combined reading of Sections 13 and 15 of the Act shows that they are independent provisions providing for easementary rights on different nature of rights. To repeat, Section 13 of the Act provides for easements of necessity and quasi-easements, while Section 15 of the Act provides for easements by prescription. These are thus clearly independent provisions and there is no overlapping of exercise of easementary rights falling under Sections 13 and 15 of the Act. If the parties are legally entitled to exercise easementary right under both these provisions, it is open for them to do so. In other words, if a party has easementary right under Section 13 of the Act and also under Section 15 of the Act, it can claim such parallel rights. The appellate Court however recorded a finding in the instant case that for exercising right of prescription under Section 15 of the Act availability of the alternate way clearly ruled out the easements of necessity and therefore, right by way of prescription could not be granted to the Plaintiffs which is wrong. Rights created under Section 13 of the Act have nothing to do with the prescriptive rights under Section 15 of the Act. Even if easement of necessity was not available in law to the Plaintiffs as held by me earlier, it is not necessary that the Plaintiffs also must fail for claiming right under Section 15 of the Act. Therefore, it will have to be held that Sections 13 and 15 of the Act are the provisions independent of each other and there is no overlapping of rights created therein. Now examining the right under Section 15 of the Act, it is clear that the following ingredients are required to be satisfied to claim right of way by easement of prescription.
(a) right must be certain,
(b) it must have been enjoyed,
(c) the enjoyment must be independent, and
(d) it must be peaceably and openly as of right without any interruption for more than 20 years.
18. The appellate Court as well as trial Court both have come to conclusion that the way in question was proved to have been used between the period, namely 30-35 years. The first Appellate Court, however, found that it was permissive in nature. However, that was never the case of the Respondents nor any evidence was forthcoming from the side of the Respondents to that effect. On the contrary, finding recorded by the trial Court in paragraph Nos. 23 to 26 show otherwise. I quote paragraph Nos. 23 to 26 from the trial Court judgment hereunder.
23. Manikrao P.W.1 has deposed that since last 35 years the work is being used. According to Vishwash P.W.4, the way is used since last 30 years. Shankar P.W.5also used the suit way 1951 to 1965. The Defendants merely denied the existance of this way. As stated earlier the evidence adduced by the Plaintiffs sounds worthy of reliance than the evidence of Defendants witnesses. The suggestions are given to the Plaintiffs witnesses that they are deposing false but all the witnesses embatically denied the said suggestions. No material is put forth on record to show that the evidence of the Plaintiffs witnesses suffers from any flaw or infirmity rendering it unworthy of credence. I have already given the elaborate reasons in the above paragraphs as to how the evidence adduced by the Plaintiffs is clinching and cogent. Prabhakar P.W.3 and his father cultivated the F.S. No. 29 till 1985.Witness Prabhakar cultivated it for about25 years and according to him, he used the suit way to approach the field. His field is between the point A-4 to A-5 and the suit way passes over the boundary of the field. Thus the evidence of this witness assumes significance. From this evidence on record it stands proved that the suit way is being used for a period more than 20years preceding the date of filing of suit.24. It is the case of the Plaintiffs that nobody at any point of time obstructed the suit way. Meaning thereby they used the way without any interruption and peaceably. It is not the case of the Defendants that there was interruption to this user. The case of the Defendants is that there was no user of the suit way and the story propounded by the Defendants stands negatived. Therefore, it goes without saying that the user was peaceful and without any interruption.25. It is also to be seen whether the said user was open as of right and as of easement. When the Plaintiffs and their predecessors in tile used the way, it goes without saying that the enjoyment was open. The Plaintiffs have come with a positive case that they take the carts, the cattles and the agricultural implements by the suit way. Such type of user, by no stretch of imagination can be secret and concealed. Therefore, it has to be taken that the user was open. As the way passes over the boundaries of the fields it cannot cannot be said that the user of the way to the owners of the servient heritage was not known. As the suit way is not the government way, and it is being used in derogation to the interest of the servient owners and openly, it goes without saying that the user was as easement and as of right.
26. It is worthwhile to note that there are so many other fields in between point A-1 to A-6. The way passes over the boundaries of other fields which includes field S. No. 29, 30, 35. However, the owners of these fields must have not objected to the user and therefore, they are not arrayed as the Defendants in this suit. This also supports the Plaintiffs case. The said owner have tacitlly admitted the Plaintiffs right of way and therefore, they did not raise the objection. The Defendants only objected to the suit way. Mahesh Kumar Defendant No. 2 admits in the cross-examination that the litigation regarding way is going on between him on one side and the owners of the adjoining lands of the other village, where the property is situated on the other side. This shows that the Defendants are involved in such type of litigation in several cases, this fact throws light on the attitude of the Defendant No. 2.
19. From the above finding recorded by the trial Court it is clear that the suit way was used peaceably and openly and as a right without any interruption for more than 20 years. The said finding clearly established the right acquired by the Appellants/Plaintiffs by prescription and the first appellate Court committed an error in recording a finding that there was no easementary right by way of prescription.
20. It is then seen that the suit way on which the Appellants/Plaintiffs have right by way of prescription as held by me above was the only way available to the Plaintiffs. The finding recorded by the first appellate Court that they had alternate available to approach their respective fields by crossing a big Nullah appears to be perverse since the trial Court has clearly held that the Nullah is a big Nullah. It is difficult to believe that farmers would be able to go to their respective fields with bullock-carts and luggages during rainy season when the Nullah would flow. It cannot be said that that was a matter of mere convenience of the Plaintiffs. Hence, the said prescriptive right ought to have been granted by the appellate Court. For these reasons, therefore, the question Nos. 3 and 4 are answered in the affirmative.
21. As a sequel to the above discussion, this appeal must succeed. In the result, I make the following order.
(i) Second Appeal No. 55/1995 is allowed.
(ii) The judgment and decree passed by the appellate Court dated 12.09.1994 in Regular Civil Appeal No. 398/1987 is set aside. The judgment and decree passed by the trial Court dated 28.07.1987 in Regular Civil Suit No. 439/1982 is restored.
No order as to costs.