Patna High Court
Santosh Kumar Banerjee vs Krishna Kant Gupta And Anr. on 31 May, 1984
Equivalent citations: AIR1985PAT124, AIR 1985 PATNA 124, 1984 BBCJ 420 (1984) PAT LJR 890, (1984) PAT LJR 890
JUDGMENT Satya Brata Sanyal, J.
1. Defendant's second appeal is against concurrent judgment of the Courts below decreeing the plaintiffs suit for easement of necessity.
2. The suit has been decreed on the popular notion about an easement of necessity that whenever a man has no other way, he can claim the right to go over his neighbour's land, which, however, is not supported either by principle or by authorities. The crucial question involved in this appeal is what is an easement of necessity.
3. The short facts germane to the said issue in appeal are as hereunder.
There is one R. S. Plot No. 178 situated in village Gopalpur. P. S. Motihari, under Motihari Municipality. The land was recorded as Kast land of one Laldhari Mahra. After the death of Laldhari Mahra his heirs sold the land in the year 1934 to plaintiff No. 1 and the ancestor of defendant. Shri Ravindra Nath Mukherji through separate sale deeds. Plaintiff No. 1 purchased towards the north of the said plot and the ancestor of the defendant towards the south. In the year 1936 Ravindra Nath Mukherji built his house on his purchased land. Plaintiff No. 1, however, used the land purchased for growing vegetables. Towards the further west of the said plot is the Kutchery road intervened by Plots Nos. 179 and 180. Plot No. 179 belonged to Usuf Mian. Ravindra Nath Mukherji on 9-11-1936 purchased a portion of Plot No. 179 from the wife of Usuf Main (Exi. B) for having a passage for his going over to Kutchery road from his house. Plaintiff No. 1 claimed right of easement of necessity over this passage, purchased by Ravindra Nath Mukherjee on the ground that even prior to the purchase both the plaintiff and Ravindra Nath Mukherji used to go to Kutchery road by crossing over Plot No. 179 belonging to Usuf Main. Admittedly the passage is fenced and it opens in the house of Ravindra Nath Mukherjee. According to plaintiff, the passage was fenced sometime in the year 1969 whereas according to the case of the defendant, it was so done sometime in the year 1939 when defendant constructed this house. The remaining portion of Plot No. 178 towards the north was purchased by one Satya Narain Prasad, who has, however, sold it to one Rajpati Prasad, father of Plaintiff No. 2. Plaintiff No. I has also sold away his portion of Plot No. 178 to Rajpati's son, who is plaintiff No. 2 in this suit. Further north of Plot No. 178 is Chitra Mandir Cinema Hall which has a door through which father of plaintiff No. 2 goes to Kutchery road. There is a back door in the house of the father of plaintiff No. 2 which opens on the land which plaintiff No. 2 has purchased from plaintiff No. 1. In the suit the plaintiffs have prayed that they have right of easement of necessity over survey plots Nos. 179 and 180 through the passage shown in blue in the sketch map belonging to Ravindra Nath Mukherjee and the defendants have no right to obstruct the plaintiffs' right of a passage for going over this land bearing survey plot No. 179 by erecting a wall. They have prayed for demolition of the wall by the defendant. At the present moment it is said that they use the passage over Plot No. 179 by scaling the wall.
4. One salient fact which has to be borne in mind is, according to none of the parties' case, plot No. 179 on which plaintiff claimed the right of way as an easement of necessity ever formed a single unit along with plot No. 178 and as a result of subsequent transfer, bequest or partition, the unit constituting plot No. 178 on account of its situation was deprived of a road (right) of way over Plot No. 179. The Courts below have held that the plaintiff-respondents have easement of necessity to pass along with the disputed Rasty and unless the said Rasta is conceded to the plaintiff they will be land-locked. It has further been held that plaintiff No. 2, who has now acquired Ram Lagan's interest in plot No. 178, cannot use the Rasta of his father as the father and son have separate avocations. It has further been held that plaintiff No. 1, who has now disposed of his land in favour of Plaintiff No. 2, has been, for long using the passage, constituting plot No. 179 which has been acquired by defendant's ancestors.
5. The common belief that whenever a man has no other way he can claim the right to go over his neighbour's land is opposed to the fundamental concept underlying easement of necessity. Easement of necessity is based on a fiction of wise paternal guidance, having its origin in the maxim of Code Civil "destination de fere de femille" which means that when a father divided his lands amongst his children, mutual conveniences as regards the user of the different allotments are implied by a fiction of law for the beneficial enjoyment of the different portions so alloted. This fiction which originated in the case of a division of lands by the father among the children was extended to strangers. 'Suffield v. Brown'. (1864) 4 De GJ & Sm 185. The right of easement of necessity arises only in cases of severance of tenements and the unity of ownership of the dominant and servient tenement at some time or other is essential. See Nani Gopal v. Kshitish Chandra AIR 1952 Cal. 108. It is an established principle of law, both in India and in England, where me property is severed from another property cither in possession, or in ownership, or in both, by a transfer, bequest, or partition, or by operation of law, and these two are so relatively situated that the one cannot be enjoyed without the exercise of a particular privilege, in or upon, or in respect of the other, such privilege is called an easement of necessity. The law of easement applies on the principles of justice, equity and good conscience and the right arises on a severance of tenements as indicated earlier. Convenience is not the test of an easement of necessity. An easement of necessity arises only where by a transfer, bequest or partition, a single tenement is divided into two or more separate and distinct tenements and any of these tenements (whether transferred or reserved) is so situated that it cannot be used at all without the enjoyment of a certain privilege on any other of such tenements. In such circumstances, law presumes the implication of a grant or reservation of such a privilege in favour of the person holding the tenement. In other words, to constitute an easement of necessity, a single tenement must have been divided into two or more separate and distinct units and the situation of one of them is such that it cannot be used or enjoyed without a certain privilege like a right of way, etc. over another. See AIR 1969 Orissa 201 Ersad Ali v. Md. Yakub Khan. The principle aforesaid is affirmed in the case of Mahabir Bhagal v. Ram Chandra AIR 1947 Pat 266. In this case there was a partition deed between the parties and the dominant tenement was allotted to the share of the plaintiff. It was found that the dominant tenement could not be used without a grant of way of necessity over the land which had fallen to the share of another party. It was held that the right of passage over the disputed land allotted to the defendants must be presumed to have been granted as a matter of necessity and this was a grant which took place by operation of law and not by any act of parties except severance of tenements. The fact that the partition deed did not contain words to this effect is immaterial. Easement emerges as a necessity from the severance of the dominant tenement from the servient one, both of which were the subject of common ownership. To establish an easement of necessity, it is not sufficient to show that if the easement is denied, the party claiming it would be put to inconvenience. See Ralkrishna Das v. Shyam Sunder AIR 1937 Pat 589.
6. The instant case has been decided on popular notion about an easement of necessity. The right does not arise in a case in which the property becomes useless without an easement being raised in favour of the party claiming it. The right is implied only in cases of severance of tenements and unity of ownership of the dominant and servient tenement at some time or other is essential. Plot No. 179 never belonged to the vendor of the plaintiff and the defendant and at no point of time plots Nos. 179 and 178 constituted a single unit under a common owner. No evidence whatsoever has been led to the said effect nor the parties based their case upon it. The right is not claimed by any severance of tenements nor plaintiff claims any right over plot No. 178 which has been severed. It is therefore, manifest that the finding of the lower appellate court that the plaintiffs are entitled to a right of easement of necessity over Plot No. 179 cannot be sustained and is liable to be set aside.
7. There has been a faint attempt claiming right of easement on the basis of long user and by prescription over Plot No. 179. The lower appellate court has found that plaintiff No. 1 has been using the passage for more than 20 years. The Court of appeal below has only emphasised long user. The Court of appeal below in this connection has also noticed that plaintiff No. 1 wrote to defendant No. 2 (Ext. A) that he wants to construct a house upon his land and there is a difficulty of road and sought permission for the use of the said road. For acquiring easement by prescription one has to plead and prove that the right claimed must have been enjoyed independently of any agreement with the owner or occupier of the land over which the right is claimed. The right must have been enjoyed peaceably, openly, as of right, as an easement, without interruption for twenty years or more. In the case of Chapsibhai v. Purushottam AIR 1971 SC 1878 it was held that an easement by prescription is in fact an assertion of a hostile claim of certain rights over another man's property and in order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to exercise that hostile claim on a property which is not his own and where no such consciousness is proved he cannot establish a prescriptive acquisition of the right. In the said case it was further held that if the owner of a dominant tenement has, during the period of prescription., exercised rights on the footing that he is the owner but which he later on claims as an easement over a servient tenement, then, his exercise of those rights is not exercised as an easement and he must fail in a claim for an easement. It was further held that where a person has pleaded ownership and has failed, he cannot subsequently turn around and claim that right as an easement by prescription. In the instant case, the plaintiff has led no evidence to this effect nor the Court has found any hostile user as of right as an easement. On the contrary by Ext. A, mainfest permission was sought for the user of the passage as plaintiff No. I wanted to construct a house over this land on Plot No. 178. In this case the plaintiff has failed to prove easement of necessity or easement by prescription.
8. In the result, the appeal is allowed. The judgment and decree of the Courts below are set aside. There will, however, be no order as to costs.