At this stage it would be apposite to refer to the observations made by the Apex Court in the case of Hero Vinoth (supra). The Supreme Court has observed thus:
"25. The question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not anything else. Easement of necessity and quasi easement are dealt with in Sec. 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity u/s. 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant in this case that it was to continue only until such time as the necessity was absolute, in fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognized and the servient tenement will be recognized and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Sec. 13 nor is it extinguished by the statutory provision u/s. 41 of the Act which is applicable only to easement of necessity arising u/s. 13.
26. An easement by grant does not get extinguished u/s. 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Sec. 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Sec. 41 is not applicable in such case."
17. In the instant case the plaintiffs vide compromise had granted the easement to the appellant-defendants to use 5 feet of the land for construction. Despite the same, the appellants made excess constructions. Thus, as per the law enunciated by the Apex Court, the easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not anything else. Easement of necessity and quasi easement are dealt with in Sec. 13 of the Act. The limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition, the parties will be governed by those conditions.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/Second Appeal No. 153 of 1995
Decided On: 15.03.2019
Nandlal Ranchhodbhai Patel Vs. Magan Bharatbhai Patel
Hon'ble Judges/Coram:
A.S. Supehia, J.
Citation: AIR 2019 Guj 141
1. Being aggrieved and dissatisfied with the judgment and decree dated 04.12.1986 passed by the Civil Judge (Junior Division), Karjan in Regular Civil Suit No. 189 of 1881, the appellants-original defendants have preferred present appeal, whereby the Civil Judge held that the defendants-original appellants herein has no right to make any construction on the eastern side of the property within 12 feets and the defendants-original appellants herein should have remove the pillars and slat covered within 12 ft.
2. The brief facts leading to filing of the present appeal are as under:-
2.1 It is the case of the respondents-original plaintiffs that they are staying in the same street of village:Kandari, Ta:Karjan. The respondents are in the ownership and possession of the suit property situated on easter side. It is stated that the appellants had applied for construction to the Kandari Gram Panchayat and accordingly, the order was passed granting permission for construction on 01.03.1978. At the same time, it is averred that the Kandari Gram Panchayat has permitted the appellants to construct suit-gabhan beyond 32 ft. towards east-west side. The appellants were permitted to keep open about 12 ft. land towards east-west side immediately after construction of 32 ft. It is stated that, if the appellants will construct beyond permission, it would affect respondents' right of light and air. It is stated that the appellants were permitted to construct about 32 ft. towards east-west side and the remaining portion of 12 ft. was to be kept open for the cattle shed. Thus, the appellants were required to keep 12 ft. open land towards east-west side. According to the respondents, the appellants have committed breach of the terms of permission granted by the Gram Panchayat, as they have left only 3.5 ft. open land instead of 12 ft. It is stated that the appellants be restrained from constructing over the suit land, as it is on the way of easementary right (i.e. light, air and rain water) of the respondents and the respondents have prayed that the appellants should keep 12 ft. open land from the respondents land towards eastern side, and thereby, the respondents have prayed for restraining the appellants from disturbing the easementary right for light, air and rainy water, as the predecessor of the appellants also admitted their rights in earlier proceedings of Regular Civil Suit No. 43 of 1964 by way of compromise.
2.2 It is stated that whatever permission is given by the Gram Panchayat for keeping the 12 ft. open place is beyond the right of the panchayat, and therefore, as per the instructions given by the panchayat, the appellants are not bound to follow accordingly.
3. Mr. Patel, learned advocate for the appellant has submitted that that the plaintiff No. 1 - respondent No. 1 herein himself deposed before the Court vide Exh. 63 that the house of the respondents and the appellants are situated in opposite side. From the respondents' houses, the houses of appellants are situated on western side. It is the say of the respondent No. 1 that between the house of the parties, there is 12 ft. way. The respondents have narrated the measurement of his property i.e. plaintiff's property east/west-48 ft. and south/north 49 ft. The predecessor in title of the appellant's property was of one Himmatlal Revashankar Joshi. The respondent has also narrated that in the year 1974-75, by exchange of properties, the appellants have taken the property from original owner Himmatlal. In his property, for lights and air, windows, doors and iron-sheets are put up. For the disputed land, it is the say of the respondent that the permission from the village panchayat for construction is given to the appellants for which there are certain restrictions i.e. the appellants are permitted to construct north/south 59 ft. and east/west 44 ft. and the appellants are directed that 12 ft. land was to be kept open for the house of the respondents and that resolution is produced at M-3/1 and the appellants also submitted a map before the village panchayat authority. According to the respondents case, the appellants have not constructed according to the plan sanctioned by the village panchayat.
3.1 Learned Advocate for the appellant has submitted that presently, the respondent is not residing and the property is given on rent. He has submitted that the suit was filed for easement of light and air which does not exist since the respondent has closed the window for which he had claimed such right. He has submitted that the property of respondent was initially Temporary (Kaccha) Hut used for cattle stable.
3.2 Learned advocate for the appellants has submitted that the properties of appellants are also originally an open Vada (fence), which is constructed for residential use in the year 1978 with the permission of the Gram Panchayat. The appellants have voluntarily asked to keep 12 ft. open land for the purpose of cattle stable. The aforesaid 12 ft. road is of the ownership of the appellants, wherein the respondents have no legal right whatsoever, but are only claiming easementary right of light and air through the property of the appellants.
3.3 Learned advocate for the appellants has submitted that the property of the respondent No. 1, which was initially a kachcha hut of cotton sticks is now just an open land, which is not used for any purpose, neither used for cattle stable nor used for the residential purpose.
3.4 Learned advocate for the appellants has submitted that the respondent No. 1 is not residing in the village, but is residing at Bangalore with his son, whereas the widow of the deceased respondent No. 2 is residing in another residential house at village.
3.5 Learned advocate for the appellants has submitted that Regular Civil Suit No. 189 of 1981 was decreed in favour of the respondents to the effect that the appellants have no right to make any construction within 5 feet of his own land obstructing the easementary right of light and air and to flow rain water. It was also ordered to remove the pillars and slabs within 5 ft. of land. Against which, appeal was preferred by the present appellants being Regular Civil Application No. 285 of 1986. The said appeal filed by the appellants was dismissed by confirming the order of the trial court passed in Regular Civil Suit No. 189 of 1981 and also awarded cost of Rs. 10,000/-.
3.6 Learned advocate for the appellants has submitted that the present appeal is preferred by the appellants mainly on the ground that the decree of easementary right of light and air is contrary to Section 33 of the Easementary Act, 1882 as the respondents have not proved substantial damage caused to them as provided under Section 33 of the Easementary Act, 1882. In support of submissions, learned advocate for the appellants have relied upon the decisions reported in (AIR 1975 Gujarat 109 and AIR 1981 Allahabad 20). Therefore, the orders of the courts below granting the easementary right of light and air to such open vada land is totally unwarranted and absolutely illegal and against the law.
3.7 Learned advocate for the appellants has submitted that the consent decree passed in earlier Civil Suit No. 42 of 1962 at Exh. 63 is required to be registered as provided under sub-section (VI) of sub-section 2 of Section 17 read with Section 49 of the Indian Registration Act, 1908, if it is relied or taken into consideration as evidence. In support of his submissions, he has relied upon the decisions reported in (AIR 1978 Allahabad 485, 1978 GLR 63 and AIR 1996 SC 196). Unless the consent decree passed in earlier suit, if not registered, then it cannot be relied or taken into consideration as evidence.
3.8 Learned advocate for the appellants has submitted that it is settled law throughout that the High Court has ample power under Articles 136, 226 and 227 of the Constitution of India, 1950 and under Section 100 of the Code of Civil Procedure, 1908 to interfere with the concurrent findings arrived at by the Courts below. In support of his submissions, the learned advocate for the appellants relied on the decisions reported in MANU/SC/0332/1984 : 1985(1) SCC 251, 1998 (2) SCC 488, 1993 (3) 573, 2006 (5) SCC 545 and 2018 (9) SCC 251.
4. Per Contra learned Advocate Mr. Shah appearing for the respondents has stated that the concurrent findings of the lower courts cannot be disturbed since both the courts below after threadbare consideration of all the relevant facts has passed the decree in their favour.
4.1 It is submitted by Mr. Shah that the appellant has made excess construction which is rightly ordered to be removed. He has submitted that in the Regular Civil Suit No. 43 of 1964 which was filed by the predecessor in title of the appellants, Himmatlal Revashankar in the Court of Karjan and in that suit, the parties have made a compromise. In the compromise decree, it was directed that while making construction o5 ft. land was to be kept open and Himmatlal - predecessor in title was agreed to left east/west-48' towards respondents house and 5 ft. was to be kept open for the air, light and right for passing rainy season water and that compromise decree is at Exh. 63. He has submitted that easement by grant prevails on the easement of necessity and the rights accrued therein cannot be extinguished by the implication under section 13 of the Easement Act, 1882. In support of his submission, he has placed reliance on the judgment of the Supreme Court in the case of Hero Vinoth (Minor) vs. Seshammal, reported in MANU/SC/2774/2006 : 2006 (5) SCC 545. It is further submitted that presently also, the tenants are residing in the property and they are suffering difficulties due to rain water.
4.2 In response to the submission of the learned advocate for the appellant about non-registration of the decree passed in the Civil Suit No. 42 of 1962, is concerned, he has submitted that the decree being a compromise decree does not require registration under section 17(20)(vi) of the Registration Act, 1908. Reliance is placed on the decision of the Supreme Court in the case of Som Dev vs. Rati Ram, MANU/SC/4269/2006 : 2006(10) SCC 788. Thus, he has submitted that the present appeal deserves to be dismissed.
5. I have given my thoughtful consideration to the arguments advanced by the learned advocates for the respective parties and perused the relevant documents produced on record.
6. While admitting the present appeal the following substantial questions of law were framed:
"1. Whether in the facts and circumstances of the case both the lower Courts have erred in interpreting the documents of title i.e. consent decree Exh. 63 dated 26.03.1965 passed in Regular Civil Suit No. 42 of 1964 along with the document of exchange Exh. 111 and Exh. 60 permission from the Panchayat?
2. Whether in the facts and circumstances of the case both the lower Courts have erred in holding that consent decree Exh. 63 passed in Regular Civil Suit No. 42 of 1964 is not required to be registered as provided under Section 17(1)(b) OF the Indian Registration Act, 1908 read with sub-section (2)(vi) and it is not saved by the said clause?
3. Whether in the facts and circumstances of the case both the lower Courts have erred in granting decree of easement of light and air is contrary to section 33 of the Easement Act, 1982 as the plaintiffs have not proved the substantial damage as provided in the said Section 33?
4. Whether in the facts and circumstances of the case both the lower Courts have erred in interpreting the Panchayat Exh. 72 and 76 and also erred in ignoring admission of the plaintiffs in their evidence which destroys their case?
5. Whether in the facts and circumstances of the lower appellant Court was justified in awarding exorbitant special costs of Rs. 10,000/-?"
7. It is not in dispute that a Regular Civil Suit No. 43 of 1964 was filed by the predecessor in title of the appellants, Himmatlal Revashankar in the Court of Karjan and in that suit, the parties have executed a compromise decree dated 26.03.1965 at Exh. 63. In that compromise decree, it was directed that while making construction 5 ft. land was to be kept open and Himmatlal - predecessor in title has agreed to leave east/west-48' towards respondents house and 5 ft. was to be kept open for the air, light and right for passing water in rainy season. Hence, it is an undisputed fact that as per the compromise decree, the respondents are entitled for easementary right i.e. right of passing the rainy water through this 5 ft. land. The compromise decree dated 26.03.1965 is proved. It is already admitted that the respondents have right to put windows and doors towards eastern side from his house so that, the respondents have right of light and air which has already been agreed between the parties of the Civil Suit No. 43 of 1964 in the year 1965.
8. Thereafter, it appears that the appellants sought permission for construction from the Kandari Gram Panchayat. The panchayat had granted the permission to construct the land on 3.7.1981 as per the rules and regulations of the panchayat. It was specifically observed that the panchayat had granted permission on the condition not to encroach the government or panchayat land. Vide Resolution passed by the Kandari Gram Panchayat Exh. 66, the appellants are permitted to construct except 12 ft. land which was to be kept open from west to east. Despite that the appellants have encroached upon the land and made the excess construction which affected the easementary right of the respondent which led to filing of the suit. The respondents have specifically prayed for grant of permanent injunction on the construction which would create obstruction to their easementary rights of air and light as well to the rain water. The trial court after examination of the relevant documents and the deposition of various witnesses has concluded that the appellants had made excess construction in violation of the compromise decree and the permission of the gram panchayat.
9. The plaintiff-witness-Maganbhai Parshottamdas Patel who is examined at Exh. 78. has deposed that he was present at the time of panchnama and the panchas of the parties were also present. He has stated that time of panch case dated 04.07.1981, the appellants had constructed 5 pillars, there was a slab. The trial Court has examined the persons who have carried out the construction. The masnor Waghela Govindbhai Mithabhai is examined at Exh. 104 and Carpenter Madhavbhai Mitabhai is examined at Exh. 106. The deposition of both the witnesses reveal that only 3 to 4 ft. land was left open as the defendant has stated that the same is more than sufficient for air and light purpose.
10. It appears that during the pendency of the suit an order below Exh. 5 was passed restraining the construction on the land but despite that the appellant has completed the construction. The lower court had called for Panch-commissioners report. Exh. 76 dated 4.7.1981 and Exh. 72 dated 23.6.1984. It transpires from the aforesaid reports that during the span of 3 years between the reports, the appellants had made the excess construction. In the first report the appellant had left open only 3'-5" land and there was slab constructed on western side. The second report Exh. 72 clarifies that the appellant had completed the construction by putting the slab for building a room. The deposition of plaintiff-witness No. 3-Hirabhai who is examined at Exh. 75 supports the report. Thus, the appellant was bound to leave 5 ft. of land for rainy water as per the terms of the compromise decree, hence it can be said that the easementary right of the respondent was affected by such construction.
11. The conspectus of deposition of various witnesses as well the documentary evidence reveals that the appellants have made excess construction on the land in violation of the compromise decree and the resolution of the panchayat. Thus, in the considered opinion of this Court both the lower courts have not erred in holding that the appellant has made the excess construction. The substantial question framed at serial No. 1 is answered accordingly.
12. Substantial question No. 2 which contemplates whether the consent decree at Exh. 63 requires any registration under the provisions of the Registration Act is answered in the favour of the respondents-plaintiffs in view of the provisions of section 17(2)(vi) of the Registration Act. The Supreme court while examining the provisions of section 17 of the Registration Act, in the case of Som Dev (supra) has observed thus:
"8. On a plain reading of Sec. 17 of the Registration Act, with particular reference to Cl. (vi) of Sub-sec. (2) it is clear that a decree or order of a court and a compromise decree that relates only to the subject matter of the suit need not be registered on the ground that it is a non-testamentary instrument which purports to or operates to create, declare, assign, limit or extinguish any right to or in immovable property or which acknowledges receipt or payment of any consideration on account of a transaction which brings about the above results. But if a suit is decreed on the basis of a compromise and that compromise takes in property that is not the subject matter of the suit, such a compromise decree would require registration. Of course, we are not unmindful of the line of authorities that say that even if there is inclusion of property that is not the subject matter of the suit, if it constitutes the consideration for the compromise, such a compromise decree would be considered to be a compromise relating to the subject matter of the suit and such a decree would also not require registration in view of Cl. (vi) of Sec. 17(2) of the Registration Act. Since we are not concerned with that aspect here, it is not necessary to further deal with that question. Suffice it to say that on a plain reading of Cl. (vi) of Sec. 17(2) all decrees and orders of Court including a compromise decree subject to the exception as regards properties that are outside the subject matter of the suit, do not require registration on the ground that they are hit by Sec. 17(1)(b) and (c) of the Act. But at the same time, there is no exemption or exclusion, in respect of the Clauses (a), (d) and (e) of Sec. 17(1) so that if a decree brings about a gift of immovable property, or lease of immovable property from year to year or for a term exceeding one year or reserving an early rent or a transfer of a decree or order of a Court or any award creating, declaring, assigning, limiting or extinguishing rights to and in immovable property, that requires to be registered.
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13. We shall now examine the decision in Bhoop Singh (supra). What was involved therein was a decree based on admission. It is to be noted that in that case it was a decree that created the right. The decree that is quoted in paragraph 2 of that judgment was to the effect:
It is ordered that a declaratory decree in respect of the property in suit fully detailed in the heading of the plaint to the effect that the plaintiff will be the owner in possession from today in lieu of the defendant after his death and the plaintiff deserves his name to be incorporated as such in the revenue papers, is granted in favour of the plaintiff against the defendant....
Therefore, it was a case of the right being created by the decree for the first time unlike in the present case. In paragraph 13 of that Judgment it is stated that the Court must enquire whether a document has recorded unqualified and unconditional words of present demise of right, title and interest in the property and if the document extinguishes that right of one and seeks to confer it on the other, it requires registration. But with respect, it must be pointed out that a decree or order of a Court does not require registration if it is not based on a compromise on the ground that Clauses (b) and (c) of Sec. 17 of the Registration Act are attracted. Even a decree on a compromise does not require registration if it does not take in property that is not the subject matter of the suit. A decree or order of a Court is normally binding on those who are parties to it unless it is shown by resort to Sec. 44 of the Evidence Act that the same is one without jurisdiction or is vitiated by fraud or collusion or that it is avoidable on any ground known to law. But otherwise that decree is operative and going by the plain language of Sec. 17 of the Registration Act, particularly, in the context of Sub-cl. (vi) of Sub-sec. (2) in the background of the legislative history, it cannot be said that a decree based on admission requires registration. On the facts of that case, it is seen that their Lordships proceeded on the basis that it was the decree on admission that created the title for the first time. It is obvious that it was treated as a case coming u/s. 17(1)(a) of the Act, though the scope of Sec. 17(2)(vi) of the Act was discussed in detail. But on the facts of this case, as we have indicated and as found by the courts, it is not a case of a decree creating for the first time a right, title or interest in the present plaintiff and his brother. The present is a case where they were putting forward in the suit a right based on an earlier transaction of relinquishment or family arrangement by which they had acquired interest in the property scheduled to that plaint. Clearly, Sec. 17(1)(a) is not attracted. It is interesting to note that their Lordships who rendered the judgment in Bhoop Singh themselves distinguished the decision therein in S. Noordeen V/s. V.S. Thiru Venkita Reddiar and Ors., on the basis that in the case of Bhoop Singh there was no preexisting right to the properties between the parties, but a right was sought to be created for the first time under the compromise. Their Lordships proceeded to hold that in a case where the plaintiff had obtained an attachment before judgment on certain properties, the said properties would become subject matter of the suit and a compromise decree relating to those properties came within the exception in Sec. 17(2)(vi) of the Act and such a compromise decree did not require registration. Merely because the defendant in that suit in the written statement admitted the arrangement pleaded by the plaintiff it could not be held that by that pleading a right was being created in the plaintiffs and a decree based on such an admission in pleading would require registration. We are satisfied that the decision in Bhoop Singh (supra) is clearly distinguishable on facts. We may notice once again that all the courts have found that it was as a part of a family arrangement that the defendant in the earlier suit relinquished his interest in favour of the present plaintiff and his brother and such a family arrangement has been held even in Bhoop Singh (supra) not to require registration."
13. Thus, as per the law enunciated by the Supreme Court, the Sec. 17 of the Registration Act, with particular reference to Cl. (vi) of Sub-sec. (2) it is clear that a decree or order of a court and a compromise decree that relates only to the subject matter of the suit need not be registered on the ground that it is a non-testamentary instrument which purports to or operates to create, declare, assign, limit or extinguish any right to or in immovable property or which acknowledges receipt or payment of any consideration on account of a transaction which brings about the above results. But if a suit is decreed on the basis of a compromise and that compromise takes in property that is not the subject matter of the suit, such a compromise decree would require registration. In the present case indubitably, the compromise between the parties does not pertain to the property which was not subject matter of the suit. It is not the case of the appellants that property was not the subject matter of suit and the compromise. Hence, the registration of the decree on the basis of the compromise was not mandatory under the provision of section 17 of the Registration Act. Thus, both the courts below have precisely held that no registration of the decree at Exh. 63 was required. The substantial question of law at Sr. No. 2 stands accordingly answered. The reliance placed on the judgment by the appellants cannot rescue them in view of the law enunciated by the Apex Court.
14. The third substantial question of law the provisions of section 33 of the Easement Act, 1882. Section 33 of the Act, reads as under:
"SECTION 33 : Suit for disturbance of easement
The owner of any interest in the dominant heritage, or the occupier of such heritage, may institute a suit for compensation for the disturbance of the easement or of any right accessory thereto:
Provided that the disturbance has actually caused substantial damage to the plaintiff.
Explanation I.-The doing of any act likely to injure the plaintiff by affecting the evidence of the easement, or by materially diminishing the value of the dominant heritage, is substantial damage within the meaning of this section and Sec. 34
Explanation II.-Where the easement disturbed is a right to the free passage of the light passing to the openings in a house, no damage is substantial within the meaning of this section, unless it falls within the first explanation, or interferes materially with the physical comfort of the plaintiff or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit.
Explanation III.-Where the easement disturbed is a right to the free passage of air to the opening in a house, damage is substantial within the meaning of this section if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health."
15. The trial court has framed the issue No. 3 in the civil suit which reads as under:
"3. Whether the plaintiff further prove that if the defendant complete the construction he will not be able to enjoy the light and air in his house?"
The trial court has answered the aforesaid issue in positive. The trial court has relied upon the court commissioners report dated 4.7.1981, Exh. 76 and Exh. 72 dated 26.3.1984. The plaintiffs filed an amendment application, Exh. 19 praying for removing of the illegal construction. The same was granted by the trial Court. The trial court after examining the reports and the deposition of the witnesses has held that there is substantial damage caused to the plaintiff's easement of right to air and light. The trial court has further held that due to construction of the shed on the property, the rain water is directed on the property of the plaintiff since there is meager distance between the property of the plaintiff and the defendant. Thus, it cannot be said that the trial court has not gone into the issue of substantial damage.
16. At this stage it would be apposite to refer to the observations made by the Apex Court in the case of Hero Vinoth (supra). The Supreme Court has observed thus:
"25. The question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not anything else. Easement of necessity and quasi easement are dealt with in Sec. 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity u/s. 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant in this case that it was to continue only until such time as the necessity was absolute, in fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognized and the servient tenement will be recognized and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Sec. 13 nor is it extinguished by the statutory provision u/s. 41 of the Act which is applicable only to easement of necessity arising u/s. 13.
26. An easement by grant does not get extinguished u/s. 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Sec. 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Sec. 41 is not applicable in such case."
17. In the instant case the plaintiffs vide compromise had granted the easement to the appellant-defendants to use 5 feet of the land for construction. Despite the same, the appellants made excess constructions. Thus, as per the law enunciated by the Apex Court, the easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not anything else. Easement of necessity and quasi easement are dealt with in Sec. 13 of the Act. The limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition, the parties will be governed by those conditions. The substantial questions of law are answered accordingly. The findings of the lower courts cannot be said be perverse or contrary to the evidence. This court does not find that both the courts below have misdirected themselves in appreciating the issues or any inadmissible evidence is considered or material evidence has been ignored. Thus, this Court cannot re-appreciate the concurrent findings of the fact while exercising the powers under section 100 of the Code of Civil Procedure, 1908 when no perversity is found in the decisions of the Courts below. The appellants are hereby directed to remove the construction as directed by the Trial Court within a period of three months from the date of receipt of the order of this Court. The present appeal fails and stands dismissed.
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