Delhi District Court
Shri Narinder Kumar Jain vs Shri P.N. Kumar on 4 November, 2011
IN THE COURT OF SHRI VIMAL KUMAR YADAV:
ADDL. DISTRICT JUDGEII (NORTH): DEL
RCA No.45/10
1. Shri Narinder Kumar Jain
S/o Shri Makhan Lal Jain
R/o 82B, Mehar Apartments,
Anstey Road, Bombay
Through his attorney
Sh. Shanker Gupta
2. Sh. Prem Sagar Gupta
S/o Shri Bucha Mal
3. Smt. Manju Gupta
W/o Sh. Shankar Gupta
4. Sh. Umesh Gupta
S/o Sh. Prem Sagar Gupta
All residents of 882883, Kidar Building
Clock Tower, Subzi Mandi
Delhi110007. ... Appellants
Versus
1. Shri P.N. Kumar
2. Smt. Om Kumari
W/o Sh. P.N. Kumar, Advocate
R/o 5S (909), Kidar Building
Clock Tower, Subzi Mandi,
Delhi110007. ... Respondents
Date of institution : 07.09.2010
Date of arguments : 14.10.2011
Date of Decision : 04.11.2011
JUDGMENT
The legal issue involved in the instant appeal revolves around the fact as to what is the meaning of necessity and how it is to be construed RCA No.45/10 1 and interpreted, primarily whether there is a possibility of enjoying the property by making provisions in the property itself without using/ occupying the property of any other person or not to say whether necessity is simple necessity or it means absolute necessity.
2. The facts against the backdrop of which the appeal emerged, succinctly, are that a suit for perpetual injunction was filed by the respondents seeking therein that the appellants may be restrained from creating any hindrance in the common passage used by the respondents for the purpose of egress and ingress from the lofty (Miani) and to look after the water and sewer lines qua the property in their possession, further seeking that the appellants be further restrained from raising any structure or construction affecting the said easementary rights of the respondents.
3. Verily the property bearing No. 5S (909), Kidar Building, Subzi Mandi, Delhi7 was purchased by the father of the respondents from the erstwhile owner. The appellants are the owners of the property bearing No. 882, Kidar Building, Subzi Mandi, Delhi, which is adjacent to the property of the respondents and in between the above referred two properties belonging to the appellants and the respondents, there exists a common passage. According to the respondents, the said common passage, as marked C in the sketch plan filed alongwith the plaint, is only the access available to the respondents to approach and use the lofty. Not only that the common passage is used by the respondents to reach the lofty but that portion also the maintenance area/ facility qua the sewerage line, drainage system and water RCA No.45/10 2 connection pipe etc. feeding the entire property owned by the respondents. Therefore, the common passage is to remain undisturbed.
4. The respondents had purchased the property in May, 1979, but they were tenants in the same premises prior to that and were using the same earlier also. Trepidated by the information that the appellants are going to sell their property including the common passage, the suit for perpetual injunction was filed whereby the respondents had sought that their easementary rights may be protected and as they are in continuous, uninterrupted and peaceful use of the said common passage for more than 12 years, therefore, a valuable right has accrued in their favour in the form of perspective rights of the passage. And as the appellants had started creating hindrance in the free movement of the respondents in using the said common passage, thus, compelled by the circumstances, the suit above referred was filed.
5. The appellants through their predecessor in interest contested the suit and submitted that half of the plot No.909 (5S), Kidar Building, Subzi Mandi, Delhi was sold to Smt. Ram Rakhi @ Pritam Devi and Shri Hari Chand Kumar through a sale deed dated 7.5.1979 and a site plan of the property sold to them clearly demarcated the boundaries of the property. The description given by the respondents has been challenged by the appellants and it is submitted that socalled common passage was never sold to the respondents and was/is in the ownership of the appellants. Since no right was transferred to them as there is no mention in the sale deed, therefore, the respondents RCA No.45/10 3 have no right in the socalled common passage. In any case, when they have possibility to approach the said lofty from their own portion of the property, no perspective right could be said to have accrued to the respondents. So far as the sewerage and water pipe lines etc. are concerned, it is submitted on behalf of the appellants that they had never interfered and further assured that they have no intention to interfere in the same which can be accessed by the respondents for the requisite maintenance etc. It is further contended that the gate which was there on the said socalled common passage was in the exclusive control of the appellants and no right, liberty or facility was ever given to the respondents.
6. Based upon the pleadings, the following issues were framed on 16.12.2005:
1. Whether the plaintiff is owner of property bearing No.5S (909) Kidar Building, Subzi Mandi, Delhi7? OPP.
2. Whether the portion shown at mark C in common passage up to the lofty (miani) as alleged in prayer clause? OPP.
3. Whether the plaintiff is entitled for the decree of permanent injunction as prayed in prayer clause? OPP.
4. Relief.
7. In order to substantiate their claim, the respondents, who were plaintiff/ defendant before the Trial court examined one witness and closed the evidence. The appellants herein examined one Sh. Prem Sagar Gupta and closed evidence.
8. Based upon the evidence and arguments, ld. Trial Court decreed RCA No.45/10 4 the suit of the respondents paving the way for the instant appeal.
9. I have considered the contentions raised by the ld. Counsel for the parties and have gone through the record as well.
10. Counsel for the appellants has primarily argued that the perspective rights is not available to the respondent inasmuch as the property was sold in the year 1979 and the suit was filed in the year 1993 i.e. approximately after 12 years, whereas the minimum period of 20 years is required in order to crystallize such a right under the Easement Act in terms of Section 15 of Easement Act.
11. Besides, it has been contended on behalf of the appellants that though the respondents have not pleaded the easement by way of necessity but even if it is presumed that the said plea was raised by the respondents, still the respondents are not able to satisfy the requirements which may create any rights in favour of the respondents as mere necessity means nothing unless it is absolute. In this context, the counsel for the appellants have relied upon the following judgment, Mohd. Ata Hussain Vs. Haji Qadir Baksh AIR 1930 Allahabad 560 and Sukhdevi Kedar Nath Vol. XXXIII The Indian Law Reports, 467.
12. It is further asserted on behalf of the appellants that the ld. Trial Court has erred in holding that the easementary rights by way of necessity exists in favour of the respondents whereas no such plea was there in the first place and even if it is presumed that such plea was there, then it has not been RCA No.45/10 5 shown by the respondents that the property in question i.e. lofty cannot be accessed by the respondents from their own property. With the above contentions, it is stated that the impugned judgment may be set aside. It is also sought by the appellant that the findings recorded by the ld. Trial Court is also required to be corrected so far as the ownership of the respondent is concerned inasmuch as the property in question was purchased by the parents of the respondent no.1 and they died intestate leaving behind the respondent no.1 only as their child. The wife of the respondent no.1, who has been held by the trial court as joint owner does not fall into the definition of the legal heirs of late Smt. Ram Rakhi and Shri Hari Chand Kumar. Therefore, it is only the respondent no.1 P.N. Kumar, who is the owner of the property.
This has not been since disputed, so be it accordingly.
13. It is contended on behalf of the respondent that the plea of perspective rights in favour of the respondents even if ignored, still the easementry rights by way of necessity exists. It is submitted by the respondent that there is no other alternate access to the lofty except the common passage and to hammer this point, the counsel for the respondents has placed reliance on the admitted photograph Ex.DW1/P1 to Ex.DW1/P6. It is also submitted that the photographs clearly reveal that the lofty has only one gate and two small windows which are adjacent to the door and therefore, there is no other point of access for the purpose of ingress and egress except the common passage in question. As the ld. Trial court has considered all these aspects, therefore, the impugned judgment is being in RCA No.45/10 6 consonance with the facts and law, requires no interference. To buttress his arguments, ld. Counsel for the respondents has relied upon the following judgments, Hero Vinoth Vs. Seshammal (2006) 5 SCC 545, Justiniand Antao and others Vs. Bernadette B. Pereira (2005) 1 SCC 471, Balbir Singh Vs. Sawan Singh AIR 1987 Punjab and Haryana 174, Ram Sarup Gupta Vs. Bishun Narain Inter College & others AIR 1987 SC 1242 and Sree Swayam Prakash Ashramam & another Vs. G. Anandavally Amma and others (2010) SCC 689.
14. The contentions raised on behalf of the appellant that it was not pleaded by the respondent that it is a case of absolute necessity, therefore, the respondent cannot be permitted to assert this or say something beyond the pleadings therefore, easement of necessity cannot be considered as a ground to grant a relief to the respondent.
15. The record on the contrary reflects that the respondent has indeed invoked the provisions of Easement Act though may not be in so many and exact words but then the pleadings are to be read as a whole and inferences are to be drawn on the basis of what has been actually intended to be conveyed. A text has to be read in context. In this context, references can be made to Balbir Singh Vs. Sawan Singh AIR 1987 Punjab and Haryana 174, where it was observed in the following words:
"It is not doubt true that the expression easement of necessity does not figure in the plaint but a reading of it would show that it had been specifically averred that there was no other way for going and coming from his vacant plot except therefore to decide in the RCA No.45/10 7 occupation of the defendant"
On the above parameters if the pleadings filed on behalf of the respondent/plaintiff are looked into, then it would become amply clear that respondent is talking about easement of necessity. The Hon'ble Supreme Court in Ram Sarup Gupta (dead) by the LR's Vs. Bishun Narain Intercollege AIR 987 SC1242 has observed that the pleadings should receive a liberal construction and no pedantic or narrow approach should be adopted. Thus, it can be said that the respondent has been able to show that it was a case of easement by necessity and the contentions raised by the counsel for the appellant in this context are of no consequences.
16. The controversy revolves around the fact as to whether it is a case of easement by necessity and if so of far this easemantary rights can be extended or so to say how it is how it is interpreted where easement by necessity strictly means absolute necessity or any dilution is possible.
17. Counsel for the appellant has vehemently argued that the respondent has not been able to establish such easement of necessity involved in the instant case, which may fall into the scope and ambit of absolute necessity. The easement of necessity is to be necessarily interpreted in way that necessity is of absolute nature and except the only option available there is no other option nor there could be made or created from within the property of the one who is claiming easement. To elaborate further, counsel for the appellant has contended that the appellant has no RCA No.45/10 8 objection so far as the maintenance of sewage pipe etc. is concerned and the the appellant is ready and willing to give free access to the respondent for this purpose whereas the access to the lofty (miani) does not fall into the scope of absolute necessity inasmuch as the respondent can create access to the lofty from his own premises. This contention has been refuted by the respondent on the plea that creating an access from within the property of the respondent would diminish the value and would create unnecessarily hindrance to the respondent especially when the adjacent portion or the portion from where the socalled access can be gained to the lofty is being used as a charitable library.
18. Counsel for the appellant in order to buttress and strengthen his arguments relied upon the following judgments, namely, Sukhdei Bibi Vs. Kedar Nath ILR Vol. 33 Allahabad 467 and Mohd. Ata Hussain Vs. Hazi Qadir Baksh AIR 1930 Allahabad 560.
19. Now, the issue before the court is to assess as to whether the easement of necessity that too of easement absolute necessity has to be interpreted in which way where the parties have source and opportunity to create access to the property from his own property. Then in that situation whether the property of somebody else should be permitted to be used by the former or not. Counsel for the respondent had initially contended that easement right has been matured and crystallized in independent right in itself on account of the same being enjoyed by the respondent for a pretty RCA No.45/10 9 long period since 1979. In this context, the easement right can only be considered to have been matured when the user has been continuously and uninterruptedly using and enjoying the particular right of way or access for not less than 20 years whereas in the instant case, the respondent could be stated to be in enjoyment of the said unrestricted right for the period of 12 years or so. Therefore, the easement right as has been sought has not matured and crystallized legally. Even the judgment relied upon by the respondent in Hero Vinoth's case (Supra) too establishes the same position and the following may be referred to in this context that :
"An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where the dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutory recognized in Section 41 of the Easement Act, 1882. Such an easement will last only as long as the absolute necessity exists."
So is the position qua the other judgment relied upon by the respondent in Sree Swayam Prakash Ashramam's Case (Supra).
20. Easement of necessity arises on the severance of tenements. Here, in the instant case the plaintiff has no case that both the servient and dominant tenements were in common ownership and that by a disposition there was cessation of that common ownership. Further, it has come out in RCA No.45/10 10 evidence that there is a pathway for the plaintiff through the western side of item no.1 for ingress and egress to the eastern road. According to the plaintiff and the commissioner, item no.3 is the convenient way to the public road. But it is to be noted that alternative inconvenient pathway is not a ground for claiming easement of necessity. The existence of alternative pathway however inconvenient it be is sufficient to reject the claim of easement of necessity. The necessity must be absolute and not convenient mode of enjoyment. Further, easement of necessity cannot be claimed in the absence of severance of tenements into two distinct tenements. Where there is no allegation of prior joint ownership and the evidence would show that the two tenements were owned by different persons there cannot be any question of easement of necessity.
In Wultzer Vs. Sharpe, it was held that an easement of necessity was an easement without which the property sold could not be used at all, and not for the more convenient enjoyment of the property.
In Municipality of City of Poona Vs. Vaman Rajaram Gholap, it was held that a person who purchased a plot of land adjoining his own land, having access to that plot through his own land, was held not entitled to a way of necessity over the land of the vendor, of which the plot sold formed a part.
It is clear from this fact that the plaintiff cannot claim the easement of necessity unless he can show that it is not possible for him to construct a new passage for his use; in other words, the plaintiff must make out use of the way claimed is one of the absolute necessity and not merely RCA No.45/10 11 necessary or convenient or that it was used so long by him. This view is supported by a string of authorities of all the courts.
21. The next contention has been that easement of necessity has to be looked into and as the respondent has no other access available except the one which is used as common passage by the respondent and the appellant both for the purpose of maintaining and looking after the sewage and pipe line etc. In addition to that, the respondent is using the common passage to gain access, use and utilise the lofty (miani) situated in his property. Thus, with the aid of judgment in Justiniano Antao (Supra) and Hero Vinoth (Supra), the counsel for the respondent asserted that the legal obligation of the appellant to provide access to the respondent to its lofty as well as water and sewage installations and as there is no other way available for the respondent, therefore, the judgment of the trial court is in accordance with the facts and law.
22. The contention of the counsel for the respondent on the face of it seems to be correct inasmuch as it is admitted on behalf of the appellant to some extent that there is no other way of access qua water pipes and sewage line except the common passage, but so far as the lofty is concerned, it is submitted by the appellant that alternate access/ way could be made available by the respondent from his own property without jeopardizing and troubling anybody else. If such possibility is there, then why the property of the appellant should be put to some detriment or be allowed to diminish in value etc. even to some extent. In this context, reference can be made to RCA No.45/10 12 Nawab Zakia Begum Vs. Lucknow Improvement Trust, wherein the Division Bench has held as under :
"That an easement of necessity is not to be granted merely on the ground of convenience and advantage, but solely on the ground of absolute necessity. Where there are other ways for ingress and exist, an easement of necessity cannot be claimed merely on the ground that such ways are inconvenient."
23. It has not been since disputed that possibility exists to create an access to the lofty from inside the building though it may be inconvenient and may involve expenses etc. to the respondent, therefore, the easement of necessity rather the easement of absolute necessity is not attracted to the facts of the case. When the respondent can use his own property at his own expenses or from on his own portion, therefore, why he should be permitted to rely on somebody else's property in such way which may not be convenient for the person whose property is intended to be used or is being used or was being used hitherto. In the case reported as Ahmad Ali Farkuddin Bohra Vs. Dhondba Dashrath Kalar, it has been held as under :
"If the easement had been apparent and continuous, then Sec. 13(d) would have applied as, without the use of the staircase, the property certainly cannot be enjoyed as it was enjoyed when the transfer took place; but the right of way, although apparent, is not continuous; therefore, one must turn to Sec. 13(a) and it must be shown that this easement is necessary for enjoying the subject of the transfer or bequest. It is open to the plaintiff to construct another way of access by making one or two staircase, either internal or external, or by using a ladder. This would, no doubt, entail some cost and might not be so convenient, but such consequences do not lead to the conclusion that the present easement is a necessary one. These words have been interpreted to mean that it must be absolutely necessary."
RCA No.45/10 13
24. In view of these facts and circumstances, the appeal filed on behalf of the appellant is allowed being maintainable and the impugned judgment and decree is set aside. TCR alongwith copy of this order be sent to the ld. Trial Court. The appeal file be consigned to record room.
Announced in open court (VIMAL KUMAR YADAV)
on 04.11.2011 Addl. District JudgeII (North)
Delhi
RCA No.45/10 14
RCA No. 45/10
24.10.2011
Present : None.
No time left.
Put up for orders on 4.11.2011.
(V.K. Yadav)
ADJII (North)
Delhi.
4.11.2011
Present : None.
Vide separate judgment dictated and announced, the appeal filed on behalf of the appellant is allowed being maintainable and the impugned judgment and decree is set aside. TCR alongwith copy of this order be sent to the ld. Trial Court. Parties to appear before the ld. Trial Court on 18.11.2011. The appeal file be consigned to record room.
(V.K. Yadav) ADJII (North) Delhi.
RCA No.45/10 15