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2012 DIGILAW 862 (BOM)

Indumati Parshuram v. Chapel of Holy Cross

2012-04-25

F.M.REIS

body2012
JUDGMENT (ORAL) F.M. Reis. J. 1. Heard Shri V. Lawande, learned Counsel appearing for the appellants and Shri S.D. Lotlikar, learned Senior Counsel appearing for the respondents. 2. The above appeal challenges the judgment passed by the Lower Appellate Court dated 11.03.2002 passed in Regular Civil Appeal No. 52/2000 whereby an appeal preferred by the respondents was allowed and the judgment and decree passed by the learned Trial Judge came to be quashed and set aside. The above appeal came to be admitted by order dated 31.01.2003 on the following substantial question of law : 1. Whether a party cannot be permitted to lead evidence on one of the two inconsistent pleas and has to opt for one of such inconsistent pleas at the time of leading evidence as has been held by the Lower Appellate Court? 3. After hearing the learned Counsels and at the request of learned Counsel appearing for the appellants, the following additional substantial questions of law are framed. 2. Whether the appellants have made out a case to claim easementary right under Section 15 of the Easement Act? 3. Whether the findings of the Lower Appellate Court are perverse as the findings of the learned Trial Judge have not been set aside? 4. Dealing with first substantial question of law, Shri Lawande, learned Counsel appearing for the appellants has pointed out that it is well settled that the plaintiff can take an alternate plea and there is no provision in law which requires the plaintiff to opt for one relief at the time of recording of evidence. The learned Counsel further pointed out that it is well settled that the Court has to grant a relief to which the plaintiff is entitled after appreciating the evidence on record and considering the rival contentions of the parties. The learned Counsel has taken me through the judgment passed by the Lower Appellate Court and pointed out that the learned Judge has failed to consider the aspect as to whether the appellants have made out a case to claim a right of easement by prescription under Section 15 of the Easement Act on a spacious ground that the appellants had not opted for one relief which they have claimed in the suit. 5. 5. Shri S.D. Lotlikar, learned Senior Counsel appearing for the respondents in fact does not dispute the fact that the appellants are always entitled to take alternative plea and claim an alternative relief a The learned Senior Counsel further pointed out that the learned Judge has not rejected the plea of the appellants merely on the ground that they had not opted to the relief which they want to confine in the plaint but on the contrary the Lower Appellate Court considered the evidence on record and found that the appellants are not entitled to claim easementary right under Section 15 of the Easement Act. The learned Senior Counsel as such submits that the first substantial question of law is to be answered in favour of the respondents. 6. Upon hearing the learned Counsels on the first substantial question of law, I find that it is well settled that the plaintiff is always entitled to seek an alternative relief. The Court at the final stage of the suit is to consider which is the appropriate relief to be granted to the plaintiff on the basis of material on record. Hence, it cannot be accepted that the plaintiff has to opt for the relief before recording of evidence. Hence, to that extent Shri Lawande, is justified to contend that the learned Judge has committed an error in holding that the appellants should have opted for the relief before the trial could have started. But however Shri S.D. Lotlikar, learned Senior Counsel appearing for the respondents has rightly pointed out that the learned Judge whilst assessing the evidence on record has also considered the c aspect as to whether the appellants have made out a case to claim an easementary right under Section 15 of the Easement Act. Hence, merely because the finding of the learned Judge to the extent as stated herein above is not correct does not by itself vitiate the judgment of the Lower Appellate Court. The request of the learned Counsel appearing for the appellants to remand the matter on that count would as such not arise. The first substantial question of law is answered accordingly. 7. The request of the learned Counsel appearing for the appellants to remand the matter on that count would as such not arise. The first substantial question of law is answered accordingly. 7. With regard to the second substantial question of law framed, referred to herein above on perusal of the plaint, I find that the only allegations made by the appellants to claim their right of easement d under Section 15 of the Easement Act are the averments at para 18 of the plaint. Para 18 of the plaint reads thus: "18. Alternatively, the right to the suit open space is acquired by the plaintiffs by way of permanent easement fastened and attached for the benefit of the dominant heritage of the plaintiffs house and property since the time of the construction of the house almost about 100 years ago". Considering the said pleadings I find that there are no particulars given by the appellants which entitled the appellants to claim easementary right of prescription under Section 15 of the Easement Act. There is no specific date given as to from which date such right was being used by the appellants as a means of access nor any averments in the plaint to disclose that such user was as a matter of right. Lack of pleadings itself vitiate the claim of the appellants that they are entitled to the right of access by prescription under Section 15 of the Easement Act. 8. Shri Lawande. learned Counsel appearing for the appellants a has further pointed out that the Lower Appellate Court has failed to consider the evidence of the learned Trial Judge to the effect that the vendor of the appellants was examined who has categorically stated that he was using the open space as a means of access to go to the main road from the northern side of the property. It is not in dispute that on the basis of the plan at page 133 of the file that the property of the appellants is surveyed under Chalta No. 17 of PT Sheet No. 18. The property of the respondents is surveyed under Chalta No. 16 of P.T. Sheet No. 18. On perusal of the plan which is at Exhibit PW 1/C. I find that there is admittedly a road towards the eastern side of the b property of the appellants. The property of the respondents is surveyed under Chalta No. 16 of P.T. Sheet No. 18. On perusal of the plan which is at Exhibit PW 1/C. I find that there is admittedly a road towards the eastern side of the b property of the appellants. The eastern boundary of the property of the appellants is a road which is otherwise surveyed under Chalta No. 15 of the P.T. Sheet No. 18. The claim of the access of the appellants is towards the northern side. The contention of Shri Lawande, learned Counsel appearing for the appellants that the steps are located in the property surveyed under Chalta No. 16 which belongs to the respondents cannot be accepted. The steps are clearly located in the property of the appellants surveyed under Chalta No. 17 of the P.T. Sheet No. 18. Shri Lawande, learned Counsel appearing for the appellants however points out that in the written statement filed by the respondents there is a categorical admission at para 5 of the written statement to the c effect that though there is a stair case the said stair case ends at the passage in between the house and the property of the appellants. On plain reading of the said portion of the written statement. I find that what has been contended is that the stair case is located in the property of the appellants and that the same ends in the passage which is located between the house and the property of the appellants. This implies that the said passage referred to at the said para is a part of the property of the appellants which is surveyed under Chalta No. 17 of P. T. Sheet No. 18. It is also pertinent to note that the claim of the appellants in the suit was to the effect that they have become d owners by adverse possession in respect of the open space. The prayer in the plaint is in fact to declare the right to the suit open space by adverse possession. This claim of the appellants has been rejected by the learned Trial Judge nor the appellants have challenged the said findings before the Lower Appellate Court. Once the claim of adverse possession has been finally adjudicated against the appellants the question of claiming any further right in respect of the said portion as a means of access appears to be farfetched. Once the claim of adverse possession has been finally adjudicated against the appellants the question of claiming any further right in respect of the said portion as a means of access appears to be farfetched. Apart from that for the reasons stated herein above there are no specific pleadings to claim a right of easement under Section 15 of the Easement Act. The second substantial question of law is answered accordingly. 9. Shri Lawande, learned Counsel appearing for the appellants in support of third substantial question of law has pointed out that the learned Trial Judge whilst deciding the suit has meticulously gone into the evidence on record and has given categorical findings to the effect that the predecessor in title of the appellants were enjoying the suit portion of the property as a means of access to go to the main a road. The learned Counsel has further pointed out that in case the said period is counted the appellants have completed a period of 20 years as required under Section 15 of the Easement Act. It is not in dispute that from the date of the purchase by the appellants of the property surveyed under Chalta No. 17 of P.T. Sheet No. 18, the period of 20 years have not elapsed on the date of the filing of the suit. Hence the appellants by themselves could not claim any right of easement by prescription through the property of the respondents. Apart from that in order to include the period prior to their purchase. I find no pleadings by the appellants to that effect in the plaint. The learned Judge as such was not justified to consider the evidence which was beyond the pleadings. When a person is claiming a right by adverse possession and easement by prescription there has to be categorical and specific pleadings as such right in any event defeat the right to the property of the true owner. In view of the fact that such pleadings are lacking in the plaint the learned Judge acted in material irregularity in assessing the evidence which was beyond the pleadings. Hence. the contention of Shri Lawande, learned Counsel appearing for the appellants that the learned Lower Appellate Judge c has not assessed the evidence and has not set aside the findings of the learned Trial Court cannot be accepted. Hence. the contention of Shri Lawande, learned Counsel appearing for the appellants that the learned Lower Appellate Judge c has not assessed the evidence and has not set aside the findings of the learned Trial Court cannot be accepted. The Lower Appellate Court has considered the pleadings as well as the material adduced by the parties and has come to a categorical findings that the appellants have failed to show any easementary right of prescription through the property of the respondents. These findings• of fact cannot be re-appreciated by this Court in exercise of jurisdiction under Section 100 of Civil Procedure Code. There is no piece of evidence pointed out by the learned Counsel appearing for the appellants which has not been considered by the Lower Appellate Court whilst arriving at such d findings of fact. Hence as the findings arrived at by the. Lower Appellate Court are not perverse. I find that there is no reason to interfere in the impugned judgment. The third substantial question of law is answered accordingly. 10. In view of the above. I find no merit in the above appeal which stands accordingly dismissed. Appeal dismissed.