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2005 DIGILAW 87 (KAR)

R. PARAMASIVAN v. T. ANASUYA

2005-02-04

H.G.RAMESH

body2005
H. G. RAMESH, J. ( 1 ) THIS regular first appeal is filed under Section 96 read with Order 41, cpc. This is the appeal filed by the defendants being aggrieved by the judgment and decree passed by the VI Additional City Civil Judge, bangalore in O. S. No. 4900 of 1993 wherein the respondent herein had filed a suit for mandatory injunction. The parties are referred according to their ranking in the Court below. ( 2 ) THE plaintiff who is the respondent herein had filed the suit before the lower Court seeking for mandatory injunction and also for an order of perpetual injunction restraining the defendants from putting up any construction or obstruction on the passage abutting the house of the defendants wherein the defendants have denied easementary right in respect of the passage of 8 ft. situate on the south-west corner of the suit schedule property running east-west to the pipeline road. ( 3 ) THE plaintiff is said to have purchased the property from one byanna in Sy. No. 37/1 of Kempapura Agrahara near Hosahalli, bangalore, a portion as shown in the sketch produced by the plaintiff, in the year 1977 wherein the plaintiff had put up construction on the said property in the year 1978. According to the plaintiff, there was a passage of 8 ft. north-south and 30 ft. east-west available to reach the pipeline road from the house. Except that there was no other passage and as a matter of easement of necessity, she was using the said passage. It is also stated that the passage was also used by one Mr. Vijayan for the purpose of air and light. Byanna had sold the property to the 1st and 2nd defendants i. e. , one Arukani Animal had purchased the property from Byanna who in turn had sold the portion of the property to the 1st defendant and the remaining portion was given to the daughter in law of Arukani Ammal who is the 2nd defendant. The passage is situate also to the northern side of the property of the 1st and 2nd defendants. According to the plaintiff, Arukani Ammal had put up illegal construction on the passage. The passage is situate also to the northern side of the property of the 1st and 2nd defendants. According to the plaintiff, Arukani Ammal had put up illegal construction on the passage. When the plaintiff asked to remove the construction put up in the passage, it was assured that it will be removed but, the defendants failed to keep up the promise and the 2nd defendant also had put up another construction in the said passage although neighbouring house owner one Vijayan who was using the passage for the easement of light and air, complained to the corporation. Since the defendants have put up construction on the passage which was available, the plaintiff having no alternative started passing through the property belonging to Sitalakshmi who is the wife of vijayan on the south-west corner wih their permission. Stating that at any time the said Sitalakshmi may withdraw the permission to use the passage and that there is no other alternative passage expect the passage on which the defendants have put up construction and also when the defendants did not heed to the request of the plaintiff to leave the passage for reaching pipeline road, she filed a suit. ( 4 ) RESISTING the claim of the plaintiff, the defendants have filed written statement stating that the portion of the property in Sy. No. 37/1 of Kempapura Agrahara near Hosahalli, Bangalore was purchased by Arukani Animal by a sale deed dated 27-11-1961 and since then they are in possession and enjoyment of the same. By a partition deed dated 10-7-1987, Arukani Animal retained the eastern portion of the property measuring 15 ft. x 65 ft. and remaining western portion was given to her son - Balasubramanian who is the husband of the 2nd defendant together with the cement shed measuring about 3 squares and the said property has been assigned No. 37 by the Corporation. The 2nd defendant is in possession of the western portion of the said property and the husband of the 2nd defendant died on 10-2-1988 living behind the 2nd defendant, two sons and a daughter since then they are in continuous possession from the date of handing over the property by arukani Ammal. Further, it is stated that there is no entry over the passage to reach the pipeline road. Further, it is stated that there is no entry over the passage to reach the pipeline road. Arukani Ammal by a sale deed dated 24-6-1991 had conveyed her portion of the property in favour of the 1st defendant, measuring 65 ft. x 15 ft. and since then they are in possession and enjoyment of the same. Further, they also denied the existence of any such passage and stated that since more than 31 years, there is a building in existence and the same was constructed in the year 1962 by Arukani Animal after she purchased the property from Byanna. Thereby, they have denied any such passage as stated by the plaintiff and rather it is averred that the plaintiff has got a passage to her house through the properties of Jayarao and Smt. Padma which is to the south-west of and there is no easement of necessity for the plaintiff. It is stated that Sitalakshmi who is the sister of the mother of the 2nd defendant colluded with the plaintiff and got filed the suit to harass the plaintiff and thereby they have denied the right of the plaintiff. Based on the above pleadings, lower Court has framed the following four issues: does the plaintiff proves her easementary right for suit passage of 8" north to south width and 30" east to west? whether the valuation of land and payment of Court fee are insufficient? does the plaintiff prove obstruction by the defendants? whether the plaintiff is entitled for declaration and permanent injunction ? ( 5 ) ON behalf of the plaintiff, three witnesses were examined and about 11 exhibits were got marked and on behalf of the defendants two witnesses were examined and 14 exhibits were got marked. After having heard the arguments of both sides, answering all the four issues in the affirmative, the Trial Court decreed the suit of the plaintiff and declared that the plaintiff has the right of passage on the western side of the property to reach her house and thereby mandatory injunction was issued directing the removal of the construction put up in the passage and also a permanent injunction was granted. The same has been assailed in this appeal on various grounds. Heard the Counsels for the appellants and the respondents. The same has been assailed in this appeal on various grounds. Heard the Counsels for the appellants and the respondents. ( 6 ) ACCORDING to the plaintiff who is the respondent herein, she had purchased the property from one Byanna who died in the year 1979 and the said property was purchased on 22-8-1977. As per the sketch, the property of the plaintiff is situate behind the property of the appellants i. e. , towards eastern side of the said Survey No. 37. The property of the appellants is situate adjacent to the property of the plaintiff who are the defendants before the Court below. The subject-matter of dispute is said to be a space of 8 x 30 fts. between the passage, to the northern side of the same, house of defendants 1 and 2 is situate and to the south the house of Vijayan and Sitalakshmi is situate. Adjacent to the house of vijayan, house of Padma is situate to the eastern side. Next to Padma's house passage is said to be available to the respondent. For the present the said passage is being used by the respondent. ( 7 ) IT is the argument of the learned Counsel for the appellants that the property of the appellants was earlier purchased by Arukani Animal in the year 1961 from late Byanna. Thereafter, the said Arukani Animal had put up the construction in the year 1962 and half of the portion of the property to the north-eastern side and eastern side was sold by arukani Animal to 1st appellant in the year 1981. Since then they are using the property and the remaining portion existing towards western side is given to her son Balasubranianian by Arukani Animal. The 2nd appellant is the daughter-in-law of Arukani Animal. It is contended that constructions were put up in the so-called passage earlier by Arukani animal herself. Since then they are using the property and the remaining portion existing towards western side is given to her son Balasubranianian by Arukani Animal. The 2nd appellant is the daughter-in-law of Arukani Animal. It is contended that constructions were put up in the so-called passage earlier by Arukani animal herself. It is the case of the appellants that the respondent has access to her property on the south-eastern side adjacent to the property of Padma and the said access touches the 12th Cross Road and also that respondent has got an electric and sanitary connection in the said passage; also a gate is put up for her ingress and egress and submitted that the respondent having entered into an agreement with Padnia as early as in the year 1982-83, since then she is reaching her house through the said passage, the question of easement of necessity is not there. Although according to the respondent, she had filed a suit against arukani Animal and others seeking for injunction to leave the passage to reach pipeline road and the suit was withdrawn on the assurance that the passage will be provided, the said contention of the respondent that the same was done on the assurance given by the defendants-Arukani ammal, is not correct. Further, it is submitted that since 1982 the respondent is using available on the south-eastern side adjacent to property of Padma and also between 1982 till 1992 the respondent-plaintiff did not pursue the matter having a passage/access available to her as per the agreement entered into between the respondent and Sitalakshmi, as such there is no easement of necessity to the respondent on the space alleged to be used by the respondent for the passage. It is further submitted in the alternate, path/easement is available to the respondent since 1983 and she did not pursue the matter. Only belatedly as an afterthought, to harass the defendants, a suit has been filed and the learned Judge of the Trial Court did not appreciate the availability of the alternate space/passage and also failed to take note of the fact that the respondent has got a passage available to the south-eastern side of Padma's property. Only belatedly as an afterthought, to harass the defendants, a suit has been filed and the learned Judge of the Trial Court did not appreciate the availability of the alternate space/passage and also failed to take note of the fact that the respondent has got a passage available to the south-eastern side of Padma's property. The Trial Court has also failed to note the admission of the plaintiff in cross-examination at para 8 wherein the plaintiff is a signatory to the sale deed and also she admits the agreement entered into to leave the passage in favour of the defendants. Even in the evidence of P. W. 3-Anusuya, at page 9 accepts the original agreement between the respondent and Sitalakshmi. Further, the version of the respondent is inconsistent and contradictory to her own plaint. Accordingly, it is submitted that the impugned judgment and decree has to be set aside as the plaintiff has not made out a case for easement of necessity. It is also his submission that when there is an alternate passage available, the question of granting relief by way of mandatory injunction to leave the passage to the respondent is illegal and against settled principles. Accordingly, in support of his argument, learned Counsel for the appellants relied upon the following rulings: 1. Venkatapathirju and Others v Subbaraju and Another ; 2. Ahmad Ali Fakruddin Bohra v Dhondha Dasrath Kalar; 3. Balubhai Maganlal Ghaswala and Others v State of Gujarat and Others ; 4. Sh. Mohammad Ata Husain v Haji Qadir Baksh and others; 5. T. Ranganna (deceased) by L. Rs v Bhagirathi Bai and another. ( 8 ) PER contra learned Counsel appearing for the respondent contended that immediately after purchase and construction of the house by the respondent in the year 1978, there was a passage available to the respondent to reach pipeline road that is situate towards the south-western side of her property measuring 8 x 30 fts. adjacent to the property of the appellants and it was being used till 1982 by Arukani ammal. adjacent to the property of the appellants and it was being used till 1982 by Arukani ammal. Only in the year 1982, Arukani Animal had put up construction and that the passage was being used not only by the plaintiff-respondent to have access to Pipeline Road even it was used as easement for light and air to the house of Sitalakshmi who is the wife of Vijayan to the northern side of their house and a window was situate towards the northern side of the house. Further, he tried to rely upon the sale deed executed by Arukani Animal in favour of the 1st appellant to contend that as per the sale deed the house property of the 1st appellant does not extend till the house property of Sitalakshmi. In between a shed being built is shown. That clearly depicts that a passage was available on which a shed was built by Arukani Animal and in the year 1992, the defendants have put up another shed covered with ACC Sheet roof and thus totally obstructed the passage which is meant for the use of the plaintiff. Thus, the Trial Court was justified in holding that there was easementary right available to the plaintiff at the suit passage and there was obstruction by the defendant and as such, the Trial Court rightly decreed the suit. ( 9 ) IN view of the controversy raised by both the parties, the following points arise for consideration: 1. Whether the plaintiff has successfully proved that there was a passage used by them as shown in the sketch? 2. Whether the Trial Court is justified in holding that there is an easement of necessity to the plaintiff? 3. Whether the Trial Court is justified in allowing the suit of the plaintiff thereby granting an order of mandatory and permanent injunction? 4. Whether the plaintiff has no other alternative/passage to reach her house and thereby she is entitled for the right of passage as shown in the sketch? 5. Whether the impugnedjudgment and decree calls for interference? ( 10 ) AT the outset, in the decision in Sh. Mohammad Ata Husain's case, a Division Bench of Allahabad High Court has held referring to section 13 (a) of the Easements Act that necessity means absolute necessity. 5. Whether the impugnedjudgment and decree calls for interference? ( 10 ) AT the outset, in the decision in Sh. Mohammad Ata Husain's case, a Division Bench of Allahabad High Court has held referring to section 13 (a) of the Easements Act that necessity means absolute necessity. In the said case relying upon the decision of the said Court in sukhdai v Kedarnath, wherein it is held when the party can provide for himself, it could not be said that he had an easement of necessity, following the said ratio, it is held therein the person who has pleaded easement could very well make his own way as such there was no easement of necessity. In Venkatapathiraju's case, the Court relying upon the Privy Council judgment has held that: in considering the questions of easements of necessity, convenience is not the test, but absolute necessity. They end with the necessity creating them. A way of necessity therefore is extinguished. When the necessity terminates by the dominant owner acquiring adjoining property through which he can pass and repass to the old dominant tenement without reference to the servient tenement, and when once extinguished the dominant owner cannot revive it by any acts on his part. In Ahmad Ali Fakruddin Bohra's case, referring to Section 13 (a) of the Easements Act, the Nagpur High Court has held that thus:"easement contemplated by Section 13 (a), Easements Act, must be absolutely necessary for the enjoyment of the subject of transfer or bequest. Where a plaintiff claims a right of way over a staircase as an easement of necessity and it is found that the plaintiff can have another access to the upper storey of his house by constructing one or more staircases, the easement not being absolutely necessary for the enjoyment of the property cannot be granted as a necessary easement". In Rameshchandra Bhikhabhai Patel v. Maneklal Maganlal Patel and another, it is held that "easement of necessity would no longer be available when alternative way is available to the claimant of that right". In Rameshchandra Bhikhabhai Patel v. Maneklal Maganlal Patel and another, it is held that "easement of necessity would no longer be available when alternative way is available to the claimant of that right". In Bhagirathi Bai's case, this Court has held thus: where the easement of necessity to the use of lavatory and right of easement over conservancy lane constituting approach to lavatory acquired by previous owner was conveyed to the transferee and the transferee had been deprived of the use of lavatory for a long period of 33 years, it followed that the transferees must have some alternative arrangement to ease themselves which led to the further irrefutable conclusion that the necessity that was there for the transferee to use the suit lavatory was no longer there. When the necessity came to an end, the easement of necessity was extinguished. Sections 13 and 14 of the Easements Act reads thus: section 13. Easements of necessity and quasi-easements.-Where one person transfers or bequeaths immovable property to another.- (A) if an easements in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or (B) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement ; (C) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or (D) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall, unless a different intention is expressed or necessarily implied, be entitled to such easement. Where a partition is made of the joint property of several persons- (E) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement; or (F) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless the different intention is expressed or necessarily implied, be entitled to such easement. Section 14. Direction of way of necessity.-When a right to way of necessity is created under Section 13, the transferor, the legal representative of the testator, or the owner of the share over which the right is exercised, as the case may be, is entitled to set out the way; but it must be reasonably convenient for the dominant owner. When the person so entitled to set out the way refuses or neglects to do so, the dominant owner may set it out. ( 11 ) IT is seen that the plaintiff having purchased the property from late Byanna in the year 1977, put up a construction in the year 1978. According to her the suit passage which is available to her about 8 x 30 fts. on the south-west corner of the suit schedule property through which she used to reach the pipeline road. Even in her evidence she has deposed to that effect. Also according to her, Arukani Ammal had put construction in the passage in the year 1982 and as such she filed a suit against her for removal of the construction. In view of the assurance she has withdrawn the suit. But the said obstruction was not removed. Further, even according to the plaintiff, 2nd defendant had put up construction in the passage although complaint was given to the corporation, no action was taken. According to her, property given to defendants 1 and 2 by Arukani Ammal by way of sale and share respectively is to the extent of 65 ft. north-south and 15 ft. east-west respectively to both defendants 1 and 2 and the passage does not form part of the sale deed in favour of 2nd defendant. According to her, property given to defendants 1 and 2 by Arukani Ammal by way of sale and share respectively is to the extent of 65 ft. north-south and 15 ft. east-west respectively to both defendants 1 and 2 and the passage does not form part of the sale deed in favour of 2nd defendant. It is seen that as per the evidence of plaintiff herself in the cross-examination from the time of obstruction since 1982 she was reaching her property by passing through the property of Sitalakshmi on the south-eastern side although she denied that she was not using the disputed passage and also she denied that there was no suit passage in existence at any time. She also admitted that she had entered into an agreement with Sitalakshmi for separate passage to be provided to reach her house on the south-eastern side adjacent to Padma's property. There is also an admission in her evidence that she entered into an agreement with Sitalakshmi regarding use of space by her and also it is seen that P. W. 3-Vijayan and P. W. 2-Jayarao are the witnesses to the said agreement. ( 12 ) LEARNED Counsel for the appellant had produced the Xerox copy of the agreement but since the original was not produced, it appears the same was not allowed to be marked but, according to the appellants there was a written agreement between the plaintiff and Sitalakshmi to provide a passage on the south-eastern side although it has been denied by the plaintiff that there was no written agreement between them. ( 13 ) FURTHER, although it is the evidence of plaintiff who is examined as P. W 1 and P. W. 2 one Jairao and P. W. 3 husband of Sitalakshmi, that there was a passage to the south-western side of the house of the plaintiff to have access to the house of the plaintiff, unequivocally it is admitted by the plaintiff that during 1981-82, construction was put up in the passage but, it is evident that according to the plaintiff, she made efforts to get the passage cleared and then although she filed a suit she is said to have withdrawn the same on the assurance that she would be accommodated i. e. , by providing the passage. Admittedly, the same has not been done. Admittedly, the same has not been done. Since then, the plaintiff for having entered into an agreement with Sitalakshmi who is the occupant of the southern portion of the property in the said survey number is shown to have let out the space on the south-eastern side to the plaintiff which is more accessible and shorter passage that touches the 12th cross road and thereby has submitted even now, the plaintiff is using the said passage. It is also pertinent to note that between 1982 from the time of obstruction to the said passage even according to the plaintiff, she is using the alternative passage as noted above on the south-eastern side of the property. Such being the case, it cannot be said that the suit passage in question was a matter of necessity as per Sections 13 and 14 of the Indian Easements act. Moreover, as noted above in the judgments rendered by several high Courts, unless it is a matter of necessity and if there is disruption for the said passage, the same cannot be claimed as a matter of right. ( 14 ) EVEN in the sale deed that is said to be executed in favour of the plaintiff by one late Byanna, nothing has been indicated as to the access that was made available to the property of the plaintiff. Although it is the contention of the plaintiff that she had been using that passage from 1978 till 1982 and no ownership is available to the defendants over the passage as is noted in the sale deed said to be executed in favour of the 1st defendant by Arukani Animal but what is being noticed is that in the year 1982 itself construction was put up on the passage by Arukani animal for better use of the houses owned by her at present which are being owned by defendants 1 and 2 on transfer. ( 15 ) ALTHOUGH the plaintiff is able to place the evidence of herself and p. Ws. 2 and 3 in her favour that she was using the suit passage to reach the pipeline road but the documents produced by her did not support the said version except the oral testimony of the witnesses who have been examined on her behalf. 2 and 3 in her favour that she was using the suit passage to reach the pipeline road but the documents produced by her did not support the said version except the oral testimony of the witnesses who have been examined on her behalf. Moreover, in view of the fact that she acquired an alternate passage at the south-eastern side to have access to her property by virtue of entering into an agreement with one Sitalakshmi, it has to be held that the plaintiff did not establish her right over the passage not proved that it is a matter of necessity. Accordingly points 1 and 2 have been answered. ( 16 ) THE finding given by the Trial Court that the plaintiff had proved her easementary right by way of prescription nor as a matter of necessity. Since between 1978 to 1982 only she is said to have used that passage. Such being the case, unless in terms of an express agreement or by way of prescription or a matter of necessity as per the Indian easements Act she acquires the right, it cannot be said that she has proved her easementary right over the said passage, as she does not satisfy the requirement of law, in the absence of any specific material placed on record to that effect. As such, the Trial Judge has erred in holding that Issues 1 and 2 in favour of the plaintiff. ( 17 ) WHEN the plaintiff has acquired alternate passage by entering into an agreement with Sitalakshmi and thereby she is in continuous use of the alternative passage since 1982, it cannot be gainsaid that the plaintiff has no alternative passage much less the suit passage is a matter of easement of necessity. Having noted the ratio laid down in the above noted citations, it is clear that the conduct of the plaintiff seeking for a mandatory injunction or for such other relief belatedly after a lapse of more than 10 years from the date of so-called obstruction, she resorted to legal remedy which is best known to the plaintiff and the claim of the plaintiff suffers from delay and laches in addition to having already an alternative passage which debars the Court from granting any remedy as sought for by the plaintiff in the suit. As such the Trial judge erred in holding that the plaintiff is entitled for declaration and permanent injunction. Although it is pleaded that the said passage was also used by P. W. 3-Vijayan the husband of Sitalakshmi in getting air and light to his house, it is not for the plaintiff to canvass here in this context. While answering the easement of necessity what has been observed by the Trial Court is that just because plaintiff had entered into an agreement with Sitalakshmi, that is not the reason for the plaintiff be denied a easement of right over the suit passage but the fact remains that when the plaintiff has chosen for alternative passage which is shown to be more accessible and easier and she is using since 1982 even according to her, there exists no right of easement of necessity over the suit passage by the conduct of the plaintiff herself. Further, the fact remains that apart from pleading a right to the passage she did not establish a right over the suit passage by way of prescription or as a matter of utmost necessity. In view of the discussion made above, I am of the considered opini9n that the Trial Court erred in granting relief in favour of the plaintiff. Points 3 to 5 are answered accordingly. ( 18 ) IN the result, the appeal is allowed. The impugned judgment and decree passed by the City Civil Judge, Bangalore in O. S. No. 4900 of 1993 in granting the relief as sought for by the plaintiff is set aside. The suit of the plaintiff is dismissed. In the circumstances of the case, parties to bear their own costs. --- *** --- .