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2002 DIGILAW 157 (JK)

Avinash Chander v. Satya Devi

2002-05-16

S.K.GUPTA, T.S.DOABIA

body2002
1. We have heard Mr. R.S. Thakur, learned counsel appearing for the appellant, as well as Mr. K.S. Johal, learned counsel for the respondents, in extenso. 2. This Letters Patent/Appeal is directed against the judgment and decree dated June 04, 1999 passed by learned Single Judge in CIA No.13/1979. By the aforesaid judgment and decree, the judgment dated 28-02-1979 of District Judge, Jammu in suit for possession on the basis of right of prior purchase, stood dismissed. 3. Setting in facts of the case relevant for the disposal of this LPA in resuming are that, a suit for partition came to be commenced between appellants father and respondent-13, Dharam Dev, who happened to be the real brothers, in respect of a house, subject matter of the suit, and standing in their own ownership, was decreed by the District Judge, Jammu on 21-11-1964. By a registered deed of settlement dated 23-2-1970, appellants father transferred a portion of the house in favour of the appellant. Dharam Dev, respondent, also sold his portion of the house by means of a sale deed registered on 12-10-1970, to one Behari Lal afterwards, Avinash Chander, appellant, however, initiated a possessory action to enforce right of the prior purchase in respect of the house explictly delineated in the title of the complaint on the basis of easement of necessity. It was further contended by the plaintiff/appellant that the ventilators, doors of the partitioned house falling in the share of the plaintiffs/appellants father opened towards the house sold and provided not only the light and the air through ventilators and also access to his latrine by passing from door existing in his house over the roof of the house sold. It was further claimed that on account of this right of easement of necessity, the owner of the dominant property got the right of prior house purchase with regard to the servient house, i.e., the house sold. 4. Upon the filing of the demurrer by the defendants/respondents, in controverting the claim of the plaintiff/appellant asserted that the plaintiff/appellant has no right of easement so as to invoke the provisions of right of prior purchase, all the following issues were struck for adjudication by the Trial Court. 5. "i) Whether the plaintiff has a prior right of purchase in respect of the suit property in preference to that of the defendant No. 1? OPP. 5. "i) Whether the plaintiff has a prior right of purchase in respect of the suit property in preference to that of the defendant No. 1? OPP. ii) Whether sale price of Rs. 12,000/- was fixed in good faith and paid ? OPP. iii) In case Issue No.2 is not proved, what is the market value of the suit property? OPP. iv) Whether the plaintiff has waived the right of pre-emption? If so, how OPP. v) Whether the defendant has effected any improvement in the suit property? If so, is he entitled to any compensation and how much? OPP. vi) Whether in case of decree against him, the defendant is entitled to expenses incurred in execution of the sale deed? OPP. vii) What relief if any is the plaintiff entitled to? OPP. Parties apart form examining the evidence as witnesses in support of their respective cases, have assembled each for itself testimony of various witnesses, a graphic narration of which has been given by Trial Court in its judgment. That the trial Court after analytical appreciation of the evidence, dismissed the suit in holding that the plaintiff/appellant has not succeeded to establish the right of prior purchase on the basis of easement in respect of the disputed property. This judgment and decree rendered by the Trial Court came to be canvassed before the learned Single Judge in appeal. 6. The judgment of the Trial Court was assailed on twin grounds before the learned Single Judge by the appellants counsel, Mr. R.S. Thakur firstly, that any right exercised by the co-owners necessary for the enjoyment of the property after partition will continue to be enjoyed in the same manner under Section 13 of the Easement Act, and secondly, the light and air being necessary for enjoyment of the property and the existence of ventilators in the stair-case having not been denied, the suit squarely falls within the ambit of Section 13 of the Easement Act, besides the door existing in the house of the appellant is necessary to reach the latrine and sufficient preferential right of the appellant and preemptory sale. The learned Single Judge, after elaborately going into the question of facts and law addressed and debated, on the basis of evidence, both oral and documentary, on record, as under: "Since the plaintiff has not pleaded that easement was absolutely necessary and there is no evidence either, therefore, the suit has been rightly dismissed. There is thus no merit in the appeal which is dismissed." 7. It is this finding to dismiss the appeal by the learned Single Judge, which came to be challenged before us in this Letters Patent Appeal. 8. Learned counsel for the appellant, Mr. R.S. Thakur, at the first flush submitted that once it is proved that the doors and ventilators existed, obviously, it cannot be reasonably said that they are not meant for light and air or any light or air flowing through them to the portion of his house. This evidence, according to Mr. Thakur, sufficiently and satisfactory proved both the necessity of quasi-easement, firstly, with regard to the easement of the latrine and, secondly, the light and air through door and ventilators. He further emphasized that he had the right to prior purchase in terms of clause fourthly of Section 15 of the Right of Prior purchase Act and because of the easement of necessity and quasi-easement accrued upon partition of the house amongst the common owners of the house. 9. Indubitably, an easement of necessity arises where both the servient and dominant tenements were in common ownership and, by a disposition, there was a cessation of that common ownership. It is in that event alone that a claim of easement of necessity can be asserted and sustained. There are four modes by which a single tenement may be divided into two separate and distinct tenements, viz., transfer, bequest, partition and operation of law. The former three are voluntary and last is involuntary. Section 13 of the Easement Act relates to all the four modes. The easements, which arise in this way, are of two modes, viz., (i) easements of necessity or easements without which the property, for the benefit whereof, they are claimed, cannot be enjoyed at all, and (2) easements which, though not constituting easements of necessity are apparent and continuous and necessary for enjoyment of the property, for which they are claimed, though not absolutely, but in the day in which it was enjoyed when the separation took place. Apparent and continuous easements which (are necessary for the enjoyment of the dominant tenement in the way in which) it was enjoyed before severed from the servient tenement as also known as quasi-easements in as much as an easement strictly so called but akin to that but arises only under certain circumstances. As regards the first contention raised by the plaintiff/ appellant, it is pertinent to point out that an easement of necessity is an easement needed absolutely for the enjoyment of property. It is not merely convenience or the reasonable enjoyment, where a property is severed by the grant of a portion of it, there can be no implied reservation in favour of the property retained of an easement of convenience but only of an easement of necessity. The creation of an easement of necessity is an outcome of the prior relationship between the tenements. It must be established that after its severance, the situation was such that the dominant tenement cannot be used at all without the easement can be claimed over the use of that servient tenements. Further, the necessity must be absolute necessity and not merely for reasonable and convenient enjoyment of the property; In other words, an easement of necessity can be granted only when necessity is merely termed as "absolute". An easement of necessity runs with the property like any other right appurtenant thereto. 10. Adverting to the pleadings of the plaint and the evidence adduced to support the right of easement, it is meaningful to point out that the plaintiff/appellant has no where recited in the plaint in clear, cogent and unequivocal terms that the house cannot be used without light and air from the ventilators and so in case of stair-case, but it is no where averred in the plaint that this is the only source of light and air to the house or the house would be rendered inhabitable without light and air flowing from the ventilators. In other words, it was imperative as of necessity to prove by evidence that the existence of ventilators and flowing of light and air from the servient tenement was absolute necessity and not a mere convenience for the enjoyment of a part of the house in his possession. In other words, it was imperative as of necessity to prove by evidence that the existence of ventilators and flowing of light and air from the servient tenement was absolute necessity and not a mere convenience for the enjoyment of a part of the house in his possession. The plaintiffs witness, Chajju Ram, has stated least about the ventilators existing in the stair-case and absolutely necessary from which the light is flowing to the house of the plaintiff/appellant and absolutely necessary for the enjoyment of stair-case or house either. As regards the door through which only the plaintiff can approach the latrine after passing from the roof of the room belonging to the defendants/respondents, the statement of this witness to this effect that the roof stands demolished since long and the plaintiff/appellant constructed a separate temporarily latrine, it is satisfactorily proved that there was no roof for the plaintiff to reach his latrine. In such circumstances, it could not be said that this easement has been enjoyed for more than two years before the commencement of the suit. Least is stated by the other witnesses with regard to the ventilators and door to be absolutely necessary for the plaintiff to use his house, stari-case and the latrine. None of the plaintiffs/appellants witnesses stated that the light and air to the house will not flow to the house of the plaintiff/appellants without the existence of a ventilator. It is though in the evidence of the plaintiff/appellant that the door and ventilator are necessary for the plaintiff, but without a whisper that the house will be rendered inhabitable by the plaintiff without ventilator. Even the plaintiff, Avinash Chander, himself appearing as his own witness, stated without firmness and definiteness that existence of ventilators is absolutely necessary for receiving light and air, besides approach to the latrine through the roof. Unless it is proved by clinching, sufficient and satisfactory evidence that the light and air received to the house of the plaintiff through ventilators is the only source, it cannot be said that the existence of such a ventilator absolutely necessary for the use of the house by way of easement of necessity. 11. It may further be pointed out that easement of necessity is an easement without which that tenement cannot be used at all. 11. It may further be pointed out that easement of necessity is an easement without which that tenement cannot be used at all. In this case, the plaintiff has neither pleaded that easement of necessity is an absolute necessity, viz., light and air received from the ventilator in the stari-case and an approach to the latrine from the door through the roof nor proved by evidence nor established by the evidence assembled in the case. A mere existence of the ventilator in the staircase without pleading and proving that the easement was absolutely necessary is of no avail to succeed in the case. 12. In the facts and circumstances of the case, we are, therefore, clearly of the view that the judgment and decree propounded by learned Single Judge assailed in LPA is neither legally laconic nor factually frail so as to invite our interference. 13. Having considered the facts and circumstances discussed above, the inevitable conclusion reached is that, the appeal possessing no merit is hereby dismissed.