Fatik Lal Pal v. Kalipada Das — 1978 DIGILAW 246 (CAL)

JUDGMENT 1. THIS Rule relates to a judgment and order, dated february 19, 1974, passed in Misc. Appeal No. 727 of 1973 by the Additional District Judge, Alipore, reversing an order, dated September 3, 1973 passed by the 6th Court of Munsif, alipore, in Title Suit No. 451 of 1972. The aforesaid order arose out of the plaintiffs' petition under section 39 rule 1 and the defendants' petition under section 151 of the Code of Civil procedure for removal of a wall on a passage which was the subject matter of the suit. 2. THE proceeding arises out of title suit No. 45 of 1972 which was filed by the plaintiff for declaration of title and permanent injunction restraining the defendants from interfering with the peaceful possession of the suit property and from forcing a pathway over it. It was alleged in the plaint that strip of land ran from the east to west measuring 4 1/2 in breadth and 88' ft. in length curved out of C. S. Dag Nos. 518 and 517 of Mouza Akra Krishnanagar P. S. Maheshtala District 24 Paraganas. It is private passage according to the plaintiffs exclusively belonging to the plaintiffs and was used by them for the purpose of effecting repairs of their properties as also for passage of rain water. Defendants did not have any right over the strip of land at any time. On November 30, 1972, however, the defendants threatened to force a pathway through the suit property by breaking some portion of wall standing on the said passage. Plaintiffs, therefore, claimed the aforesaid declaration and injunction. Defendants in their written statement contended that they were owners of C. S. Plot No. 524 and the disputed land was a common passage for ingress and egress to their aforesaid plot of land where their home-stead is situated. On the west of the common passage is Akra Krishnanagar Road and on its east is the dwelling house of the defendants in plot No. 524. The defendants' case is that they had been using the disputed strip of land for more than 50 years. Defendants' further case is that besides the disputed strip of land there was no other way for ingress and egress to the plot No. 524. The defendants' case is that they had been using the disputed strip of land for more than 50 years. Defendants' further case is that besides the disputed strip of land there was no other way for ingress and egress to the plot No. 524. It will be noticed from the allegations that while the plaintiffs contend that the suit passage is from west to east it does not continue further east upto C. S. plot no. 524 which belongs to the defendants. According to the plaintiffs, after the passage lies a graveyard which also belongs to plot 519. Defendants, however, assert that the passage continues right upto plot No. 524 and is contiguous to the same. The present proceeding arose out of plaintiffs' petition under Order 39 Rule 1 and the defendants' petition under section 151 of the Code of Civil procedure for removal of a wall on the said passage. Learned Munsif on a consideration of the materials on record which includes a report by the Commissioner submitted on March 26, 1973, found that the plaintiffs failed to prove prima facie that they had any case to go to the trial and the ex parte interim order of injunction which was earlier passed by the learned Munsif was vacated. Not only that, in order to make the order effective, the learned Munsif, an the application under section 151 of the Code of Civil Procedure filed by the defendants ordered the plaintiffs to remove the wall placed on the suit passage within one month from date. 3. IN appeal the learned Additional District Judge of Alipore did not dispute the finding of facts by the learned Munsif. He noted the evidence and other materials on record and directed the parties to maintain status quo and not to change the character of the suit land till the hearing of the suit. Thus he did not interfere with the order of injunction passed by the learned Munsif. At the same time, he felt that "a mandatory ad interim injunction can be thrusted upon in a case of breach of contract. " According to him, the learned munsif was not justified in granting the mandatory injunction as it was not the case of the defendants that there was a contract with regard to the passage which the plaintiffs violated. In that view of the matter the Misc. " According to him, the learned munsif was not justified in granting the mandatory injunction as it was not the case of the defendants that there was a contract with regard to the passage which the plaintiffs violated. In that view of the matter the Misc. appeal was allowed on contest and the learned munsif's decision was set aside. The said order of the learned Additional District Judge is challenged in this Rule. 4. MR. Mitter, learned Advocate appearing in support of the Rule, firstly contended that the learned appellate court was clearly wrong in holding that a mandatory injunction can be granted only in case of contractual obligation. Mandatory injunction is dealt with under section 39 of the Specific Relief Act, 1963. If runs as follows : "when, to prevent the breach of an obligation it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts. " The learned appellate Court, as has been noticed earlier, confined "breach of an obligation" to 'a breach of a contractual obligation'. But section 2 subsection (a) of the Specific Relief Act, 1963 itself states that 'obligation' includes every duty enforceable by law. In that view of the matter, it would be hardly legitimate to confine an 'obligation' merely to a contractual one. The definition clause itself stands in the way of putting such a circumscribed and narrow construction as is sought to be made in the impugned order. I, therefore, find substance in the contention of Mr. Mitter in this regard. Mr. Mukherjee, learned Advocate, appearing to oppose the Rule, however, contended that in terms of the map annexed to the plaint the passage does not run upto C. S. Plot No. 524 of which the defendants are the owners. In other words, he contended on the basis of the aforesaid map and the pleadings in the plaint that the passage not being contiguous to plot No. 524 (here could be no right of easement. He quoted several passage from B. B. Kartiyar's Treaties in the Law of Easement and License in India, 6th Edition and Gale on Easement. As to the nature of easement Mr. He quoted several passage from B. B. Kartiyar's Treaties in the Law of Easement and License in India, 6th Edition and Gale on Easement. As to the nature of easement Mr. Mukherjee was right when he submitted that easement is an accessory to a tenement and that it is not possible to have easement or right in gross. It is quite true that without their being a dominant tenement in existence it is not possible to have easement. Legal easement must enure to the benefit of the dominant tenement. But it is difficult to sustain his contention that easements with regard to right of way must be contiguous to the dominant tenement. Mr. Mukherjee referred to two English cases Ackroyd v. Smith, 138 E. R. 68 and Thrope v. Brumfit, 1873 (8) Ch. App. 650 for the proposition. 5. IN Halsbury's Laws of England, third Edition, Volume XII Article 1237 it is stated that "a right of way can validly be made appurtenant to land with which the way has no physical contiguity, but it must be beneficial in respect of occupation of that land. " 6. A reference is made to the case of Todrick v. Western National Omnibus Co. Ltd, 1934 Ch. 561, C. A. 1934 all England Reporter 25. It would appear that the point was specifically dealt with in the said decision. Romer, l. J. while dealing with the point, stated : "it is said on the part of the plaintiff, that it was not appurtenant to that land, and, therefore, could not pass to the defendants, because the road over which the right had been granted does not directly lead, except to an immaterial extent, on to the land coloured blue, but anyone using the road for the purpose of going to the land coloured blue must pass over some other land that belonged to Mr. Nichols and now belongs to the defendants. It is said in other words that there cannot be an easement of a way appurtenant to land unless the way ends upon the alleged dominant tenement in other words that the dominant tenement must be one of the termini of the roads in question. " Maugham, L. J. was of the view that it was contrary to the common understanding of the provision with regard to rights of way. " Maugham, L. J. was of the view that it was contrary to the common understanding of the provision with regard to rights of way. Can the owner of the house not acquire by grant a right of way across a field opposite to, say, a highway or a Railway station ? "i believe the universal opinion is that such a way can be granted. " Again he asks "can a owner of land not acquire a right of way leading to his tenement over two fields belonging to different owners ? I should imagine that such a right of way is constantly being acquired, and I can see no reason in common law why such an easement should not be acquired. " both Romer L. J. and Maugham L. J. differed from the decision in Ackroid v. Smith and Thrope v. Brumfit, Maugham l. J. was unable to see how there was anything in either of the two cases which supports the general proposition that a right of way can only be granted if the way leads right upto the dominant tenement. 7. IT may be noted that the essential characteristics of an easement were noted by Gale on Easement, 11th edition p. 19 and the same has been approved by the court of appeal and other courts in England. The passage is as follows : "according to the civil law it was necessary that a servitude should be productive of advantage to the dominant tenement. A mere restriction upon the rights of the servant owner was invalid if unaccompanied by any benefit to the dominant owner of, if such benefit were one merely personal to him. For the same reason no servitude could exist unless the dominant and servient tenements were sufficiently near to allow the one to receive a benefit from the subjection of the other. So in English law an easement must be connected with the enjoyment of a dominant tenement and must be for its benefit. Thus there cannot be a right of way over land in Kent appurtenant to an estate in Northumberland. " There is, therefore, no manner of doubt on the basis of the English authorities that contiguity of tenement is not essential for the purpose of an easement over a right of way. It will be noted that emphasis is laid on the fact that easement of dominant tenement. " There is, therefore, no manner of doubt on the basis of the English authorities that contiguity of tenement is not essential for the purpose of an easement over a right of way. It will be noted that emphasis is laid on the fact that easement of dominant tenement. Distance between Kent and Northumberland is cited to show that the same excludes the possibility of any benefit (connected) the enjoyment of a dominant tenement. It may be noted that the Indian Easements Act, 1882 does not interms apply to West Bengal. Of course, the principles underlying provisions of the Act have been held to be applicable nonetheless (64 C. W. N. 60). The principles of English Law, as noted above, do not seem to in conflict either with the principles of justice, equity and good conscions or to the principles embodied in the Indian easements Act. No argument has been advanced on that ground either. 8. MR. Mukherjee's contention, easements Act. No argument has been over, the question of contiguity itself is in dispute in this proceeding. I have already noted that while the plaintiffs contend that the passage steps short of reaching upto plot No. 524 the defendants claim that the passage runs upto and is contiguous to plot No. 524. There is no doubt, therefore, that question of contiguity itself is in dispute. In the aforesaid circumstances the Rule must succeed. The petition is allowed. The Rule is made absolute. The judgment of the appellate Court is set aside and the order of the learned munsif is restored. There will be no order as to costs.