Whether a party can claim the right of easement by their partition deed if their ancestors did not have easement right?

Hence, I find that the alleged easement right was not proved either by the defendants 1 and 2 or by their vendors. While things be so, they cannot create by way of deed of partition entered between the defendants themselves in the year 1978, when no such right was existed with the ancestors of the defendants as could be seen from Ex. B3. The defendants are not disputing the title of the plaintiff in S. No. 88/3 as their vendors(defendants) were parties to the earlier partition. Thus, as such when there is no reference with regard to the alleged cart track in the plaintiff's property in those parent documents, the defendants herein cannot claim easement right by way of grant.

{Para 35}

38. Hence I find that the decision rendered by Justice Dr. G. JAYACHANDRAN reported in MANU/TN/0413/2019 : 2019 (5) CTC 80 [K. Kalianna Gounder and another v. Sundararaj and another] is squarely applicable to the facts and circumstances of this case, wherein it is held that easement right cannot be created by reading a recitals any document by the parties themselves it has to be proved in the manner known to law as prescribed under the Indian Easement Act. It has been further held that easement right is statutory right subject to the conditions and pre-requisite conditions and the burden of prove as stated in the Indian Easement Act and it is "neither can be created nor be destroyed by reading of recital in document to the convenience of the parties". If any such recital has been inserted as to the existence of any such right in the nature of easement right, which are liable to be rejected at the threshold since parties cannot conceive easement right upon themselves on some bodies land, which is the crux and nucleus of the right of easement.

IN THE HIGH COURT OF MADRAS

S.A. No. 302 of 2012, M.P. No. 1 of 2012 and C.M.P. No. 411 of 2022

 Nallammal and Ors.  Vs. Sengoda Gounder and Ors.

Hon'ble Judges/Coram:

R.M.T. Teekaa Raman, J.

Decided On: 25.03.2022

Citation: MANU/TN/2258/2022

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Whether civil court has jurisdiction to grant a relief touching an order passed by the Tahsildar under section 5(2) of the Mamlatdar’s Courts Act, 1906?

  So far as the aspect regarding the jurisdiction of civil court to grant a relief touching an order passed by the Tahsildar under section 5(2) of the Act, true it is that an order of the Mamlatdar in such a proceeding is revisable under section 23(2) of that Act. However, conspicuously, section 22 of the Act clearly declares that any decision or order passed by the Mamlatdar would be subservient to the decision of a competent civil court in a proceeding preferred before it. Section 22 of the Act reads thus :-

“22. Subject to the provisions of section, 23 sub-section (2), the party in favour of whom the Mamlatdar issues an order for removal of an impediment of the party to whom the Mamlatdar gives possession or restores a use, or in whose favour an injunction is granted, shall continue to have the surface water upon his land flow unimpeded on to adjacent land or continue in possession or use, as the case may be, until otherwise decreed or ordered, or until ousted, by competent Civil Court:
Provided, firstly, that nothing in this section shall prevent the party against whom the Mamlatdar's decision is passed from recovering by a suit in a competent Civil Court mesne profits for the time he has been kept out of possession of any property or out of enjoyment of any use :
Provided, secondly, that in any subsequent suit or other proceeding in any Civil Court between the same parties, or other persons claiming under them, the Mamlatdar's decision respecting the possession of any property or the enjoyment of any use or respecting the title to or valuation of any crop dealt with under the proviso to sub-section (1) of section 21, shall not be held to be conclusive.”
A bare perusal of the provision would clearly indicate that irrespective of the decision of the Mamlatdar under section 5(2), a party may approach a civil court and obtain any relief even contrary to the decision of the Mamlatdar setting it at naught.  {Para 14}

Bombay High Court

JUSTICE MANGESH S. PATIL

Digambar S/o. Vitthal Kale & Ors. Vs. Vasant S/o Kacharu Kale & Ors.

SECOND APPEAL NO. 111 OF 2017

11th January 2022

Citation: 2022 NearLaw (BombayHC Aurangabad) Online 24

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