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2004 DIGILAW 763 (JHR)

Rohan Mahto v. Ram Chandra Prasad

2004-07-30

P.K.BALASUBRAMANYAN

body2004
ORDER P.K. Balasubramanyan, C.J. 1. This second appeal is filed by defendants 2 to 5. A suit was filed by the plaintiffs for a declaration of their right, title and interest over the plaint A Schedule property; for a declaration of the right of easement of the plaintiffs for their exit to the Hirak Road land in the western boundary of the plaint A Schedule; for a mandatory injunction directing defendants 2 to 5 to demolish the construction allegedly illegally put up by them over Hirak Road land, blocking the passage of the plaintiffs from their house and for consequential reliefs. 2. The plaintiffs claimed to be the owners of plaint A Schedule on the basis of a purchase from defendant No. 1. Puran Mahto. Their case is that they constructed a residential building in that plot of land, facing west and they had an exit from their house to the Hirak Road lying west to the Schedule A property. Defendants 2 to 5 put up some construction on the western side of plaint A Schedule property at a distance of two feet from Schedule A property and this has resulted in obstructing the exit of the plaintiffs to the Hirak Road. In paragraph 12 of the plaint, it was pleaded that there was no other land in between the Hirak Road and the suit land. The hut erected by the defendants In front of the door of the plaintiffs was over the Hirak Road land and the plaintiffs have full right to use the said land as their passage. They had a right of easement over the suit land. The construction made by the defendants over the said Hirak Road land was liable to be directed to be removed. 3. In their written statement, defendants 2 to 5 denied the right of the plaintiffs. They slated that the averment that there was no land towards Hie west of the lands over which the house has been constructed by the plaintiffs was incorrect. It was further pleaded that the land over which the construction was put up by the defendants belonged to the defendants and the plaintiffs have no right and title over the said lands. They claimed that the construction was legal. 4. It was further pleaded that the land over which the construction was put up by the defendants belonged to the defendants and the plaintiffs have no right and title over the said lands. They claimed that the construction was legal. 4. On these pleadings, two questions that arose were whether the plaintiffs have pleaded and proved a right of easement, to sustain the claim for the relief of mandatory injunction based on Sections 32, 33, 35 and 36 of the Indian Easements Act, 1882. and whether the plaintiffs have made out a case for relief on the basis that the construction made by the defendants was on the road margin or on the road itself and are the plaintiffs not entitled to have the blocking of their exit to the road got removed. Though a Pleader Commission was issued and his report was marked as Ext. 3,1 find that the Pleader Commissioner has not even prepared a sketch indicating the lie of the land and has not specifically reported whether the construction by defendants 2 to 5 was on the road margin or in a property that lay in between the Hirak Road and the property of the plaintiffs. The trial Court decreed the suit presumably on the basis that since the defendants have not proved the title over the land where the construction has been made and the right of passage of the plaintiffs to Hirak Road has been blocked, the plaintiffs are entitled to a decree. It may be noted that the right of the plaintiffs over plaint A Schedule, though sought to be disputed, was no seriously challenged by the defendants. On appeal by defendants 2 to 5, the lower appellate Court, on the basis of some oral evidence, proceeded on the assumption that the construction has been made by the defendants on the road margin and, consequently, the construction was liable to be removed since the construction blocked the right of passage of the plaintiffs to the road. Thus the appeal was dismissed and this second appeal is filed challenging the said decree. 5. The substantial questions of law that arise for decision in this second appeal are :- (i) Whether in the absence of proper pleading and evidence in support thereof, a right of easement can be found in favour of the plaintiffs? Thus the appeal was dismissed and this second appeal is filed challenging the said decree. 5. The substantial questions of law that arise for decision in this second appeal are :- (i) Whether in the absence of proper pleading and evidence in support thereof, a right of easement can be found in favour of the plaintiffs? (ii) Whether it has been established that the construction put up by the defendants was on the road itself and in the absence of even a sketch identifying the property and the demarcation of the property, are the Courts below justified in decreeing the suit in favour to the plaintiffs? 6. As regards easement, I must say that there is not even a proper pleading in support of a case of easement. Paragraph 12 of the plaint read with paragraph 7 thereof, only uses the expression easement and it is not specified what is the nature of the easement claimed. There is no plea of prescription since presumably the plaintiffs purchased plaint Schedule A property only in the year 1982 and twenty years had not elapsed before the suit was filed. As regards easement of necessity, there was no pleading in the plaint that there was a severance of tenement which is an essential ingredient for establishing a plea of easement of necessity or quasi-ease-ment. Therefore, in the absence of a plea of severance of tenement, no decree based on easement of necessity could have been granted by the Courts below. Therefore, the first question of law posed has to be answered in favour of the appellants-defendants. 7. As regards the second aspect, it is true that the defendants have not produced their title deed. They had set up a case of exchange with the plaintiffs which they have failed to establish. But these aspects could not by themselves entitle the plain-Lifts to have a decree unless the plaintiffs arc able to show. in the absence of any case of easement, that the construction was made by the defendants on the road or on the road margin and they having property adjacent to the main road, they have a right of access on the main road and its blocking was liable to be restrained. in the absence of any case of easement, that the construction was made by the defendants on the road or on the road margin and they having property adjacent to the main road, they have a right of access on the main road and its blocking was liable to be restrained. The identification of the property purchased by the plaintiffs with reference to the western boundary as described in the deed of conveyance executed by Puran Mahto in favour of the plaintiffs and the Hirak Road is absolutely necessary to establish that case. The Pleader Commissioner also did not make any attempt to prepare a sketch of the property based on the document of title relied of the plaintiffs and the revenue records with reference to the Hirak Road which lay to the west of property of the plaintiffs. It was for the plaintiffs to have applied for and obtained the appointment of a Survey Knowing Commissioner to have a proper plan prepared of the property with reference to the road. Of course, if there is proper identification, the fact that the defendants have not produced their title deed to support their case will go along way to support the case of the plaintiffs that the construction is unauthorised and it is on the road margin entitling them to a decree. 8. As noticed above, the word easement has been used in paragraph 12 of the plaint and the same has been replied Lo in paragraph 13 of the written statement and the defendants have denied that they have put up a construction on Hirak Road or on its margin. The lower appellate Court has essentially relied on what it calls the admission of some of the witnesses including that of DW 4 in jumping to the conclusion that the construction by the defendants was on Hirak Road itself. It has referred to paragraph 39 of the oral evidence of DW 4 in that behalf. But on reading paragraphs 38 and 39 of DW 4. it can be seen that he has stated that Hirak Road passed through plot No. 73 and after the construction of Hirak Road, there was settled land of Puran Mahto, the vendor of the plaintiffs, in between the Hirak Road and the property purchased by the plaintiffs and there was no other vacant land in the western portion of the purchased land. This cannot be construed as an admission to justify a decree. Since this essential aspect has been lost sight of by the trial Court and the appellate Court and there has been no attempt made to identify the property with reference to the passage, the road and the description of the boundaries and survey records, I am satisfied that the decree granted is not supported by the relevant findings and thereby it suffers from a substantial error of law warranting interference by this Court in second appeal. 9. In view of the conclusion above and in the interests of justice. 1 am satisfied that the suit should be remitted to the trial Court so as to enable it to deal with all the relevant aspects of the ease including the question whether the construction put by the contesting defendants is on the road margin. Of course, if the defendants do not produce their document of title even after the remand, the Court can draw an adverse inference against them. But if the document of title is produced by the defendants, the Court below will examine the same and get the property comprised therein identified along with the property of the plaintiffs and the Hirak Road. 10. Thus, I allow this second appeal and setting aside the judgment and decree of the Courts below direct the trial Court to try and dispose of the suit afresh in accordance with law. The trial Court will permit the plaintiffs to amend their plaint, if they are so inclined, and give them an oppor-LuniLy to identify the properties as indicated above. Defendants 2 to 5 will also have opportunity to file an additional written statement in case the plaint is amended. The plaintiffs will take steps for appointment of Survey Knowing Pleader Commissioner for demarcation of the property and the parties may be given an opportunity to adduce further evidence, if they want, in support of their respective cases. Considering the fact that the suit is an old one and the issue now before the Court is a simple one, the trial Court will try and disposeof the suit afresh within nine months from the date of appearance of parlies as fixed in tills judgment. Pursuant to this-judgment, the parlies will appear before the trial Court on 4.10.2004. Considering the fact that the suit is an old one and the issue now before the Court is a simple one, the trial Court will try and disposeof the suit afresh within nine months from the date of appearance of parlies as fixed in tills judgment. Pursuant to this-judgment, the parlies will appear before the trial Court on 4.10.2004. It is made clear that the relief of declaration of title granted by the Courts below to the plaintiffs is not disturbed by this Court and the said declaratory decree will stand.