Calcutta High Court (Appellete Side)
Sri Prabir Guha And Ors vs Sri Uttam Chand Surana And Anr on 1 April, 2011
Author: I.P. Mukerji
Bench: I.P. Mukerji
1
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
PRESENT:
The Hon'ble JUSTICE I.P. MUKERJI
C.O. NO.3719 of 2008
SRI PRABIR GUHA AND ORS.
Versus
SRI UTTAM CHAND SURANA AND ANR.
For the petitioners : Mr. Sakti Nath Mukherjee,
Mr. Supriyo Bose,
Mr. Debajyoti Datta,
Mr. Makhan Roy.
For the respondents : Mr. Sudhis Dasgupta,
Mr. Anil Kumar Mallick,
Mr. Debdas Khanna,
Ms. Manasi Bhattacharya.
Heard on: 14.06.2010, 02.07.2010, 16.07.2010, 13.08.2010, 03.09.2010,
10.09.2010, 04.10.2010, 12.11.2010, 26.11.2010, 03.12.2010, 23.12.2010,
07.01.2011, 21.01.2011, 11.02.2011, 04.03.2011, 11.03.2011
Judgment on: 1st April, 2011
I.P. MUKERJI, J.
This is an application under Article 227 of the Constitution of India.
The petitioner is aggrieved by the judgment and order dated 26th August, 2008, passed in appeal, being Misc. Appeal No. 443 of 2006, by the learned 2 Additional District Judge, Alipore. An appeal was instituted before the said learned Judge from an order of a learned Munsif refusing an order of injunction restraining the petitioner from claiming exclusive rights over a passage alongside a building. The learned Additional District Judge granted the order of injunction, against which the petitioner has come up before this court in this Revisional Application.
BASIC FACTS:
There is a substantially large property abutting on Rash Behari Avenue, Kolkata. There is a four storied building with a frontage on that road. It has some land appertaining to it on the back and to its west. The building and the land measure about 3 cottahs 5 chittaks and 30 sq. feet. The premise is numbered as 208/1 Rash Behari Avenue. It is owned by the respondents. At the back of that property there is another property which also has a four storied building. Its owner is the petitioner. Right along these two buildings there is a 8 ft. wide passage having a length of 57 ft. 6 inches. It runs north to south from Rash Behari Avenue alongside these two buildings to their east. This passage is part of the rear property. The said property along with the passage measures 3 cottahs 15 chittaks 15 sq.ft.
The dispute is with regard to this passage. According to the petitioner, he has exclusive rights of user of this passage. It is said that the respondents have a very wide frontage, appertaining on Rash Behari Avenue.
The battle over easement rights over this passage has been raging for quite sometime, not only between these parties, but their predecessors in interest.
Now, the history of the dispute.3
This large property at one point of time belonged to one Phani Mohan Banerjee. He purchased it on 22nd December, 1941. On 7th February, 1947, the said front portion was gifted by him to his daughter Smt. Bivarani Chatterjee. On 19th November, 1954 Phoni Mohan sold the remaining land to one Basanti Devi (Gupta). On 11th June, 1956, Smt. Basanti Devi (Gupta) sold the property to Smt. Arati Guha, the mother of the petitioner, now deceased.
Now, all these conveyances stipulated that enjoyment of the rear property was subject to the easement right of egress and ingress over the passage of the owner of the front property.
ORDER OF T.K. BASU, J.:
A writ application filed in this Court by Smt. Arati Guha in 1979 has become very important for the purpose of determination of this application.
The Calcutta Municipal Corporation had sanctioned a building plan in favour of Smt. Bivarani Chatterjee. Smt. Arati Guha was aggrieved by such sanction. She thought that construction in terms of that plan would encroach upon her right to use the said premises. She filed a writ application in this Court being Matter No. 434 of 1979. That writ application was dismissed on 16th August, 1979 by T.K. Basu, J. But some findings in the judgment have been used by the petitioner to support his case in this application. It is said that this Court held that Smt. Chatterjee had only an easementary right of support on that passage if she constructed a building on her land. Therefore, apart from the said right of support Smt. Bivarani Chatterjee had no other right. The respondents being successors in interest of Bivarani Chatterjee had only 4 those easement rights which she had and none other. If Bivarani Chatterjee had the right of egress from and ingress into the passage that right had been given up in Court.
SUIT OF 1978:
Sometime in 1978, Smt. Arati Guha instituted a suit in the Court of the Second Munsif at Alipur being Title Suit No. 385 of 1978 renumbered as Title Suit No. 98/1983 against Smt. Bivarani Chatterjee restraining her from accessing the said passage. When the suit came up for hearing, it was represented before the Court that this Court in the exercise of its writ jurisdiction had come to a final finding that Smt. Bivarani Chatterjee could only use the passage in exercise of her easement right of support and that otherwise the right to use the passage was with Smt. Arati Guha.
In the circumstances, on 17th April, 1986 the said Court at Alipur dismissed the suit on the ground that it was barred by the principles of res judicata.
SALE TO THE RESPONDENTS & ANOTHER SUIT:
Now, on 29th March, 1990 Smt. Bivarani Chatterjee sold this property to the respondents. The deed of conveyance provided for transfer of, inter alia, easement rights over the said passage.5
In 2006, the respondents, instituted the instant suit before the learned Second Munsif, Alipur for restraining the petitioner from interfering with their rights over the said passage.
The learned Munsif refused the order of injunction on the ground that the issue was already res judicata in favour of the petitioner. In appeal the learned Additional District Judge reversed that order and granted the order of injunction restraining the petitioner from interfering with the easement rights of the respondents over the said passage.
Hence, this revisional application.
ARGUMENTS:
Both the parties have made very interesting arguments before me.
PETITIONER:
Easement rights are certain rights like right to air, light, passage etc. which a dominant owner has against the servient owner of two contiguous or adjacent tenements. These rights run with the land and irrespective of ownership, are attached to the land. It is true that the original owner Phoni Mohan Banerjee while gifting the front portion of the property to his daughter Smt. Bivarani Chatterjee had made the transfer together with all easement rights over the passage. Now, that the passage was part of the holding of the owner of the back side plot, that passage was used by the owner of the front side plot as an easement right.6
This front portion property is on Rash Behari Avenue and has a very long frontage abutting on the road. This frontage gives the required access that the owner of this premises needs to make ingress into and egress from the property.
An owner can relinquish such right orally. Reliance was placed on Katiyar on Easement Licences, page 772, Gale on Easements: (14th ed.) Chapter 14, page 316, Gale on Easements: (15th ed.) page 351 and Sanjiva Row's Commentary on The Indian Easement Act, 1882, page 894.
This easement right was given up by Smt. Bivarani Chatterjee before this court during the hearing of the said writ application.
The finding of the writ court that Smt. Bivarani Chatterjee did not need the passage etc. as a right of support was final and binding on the owner of the adjacent and dominant tenement. Therefore, the respondents being successors in interest cannot put up a different stand than that his predecessor in interest. Government of Orissa - v - Ashok Transport Agency and others, reported in (2005) 1 SCC 536, para 11, Vinod Kumar Arora - v - Smt. Surjit Kaur, reported in AIR 1987 SC 2179, para 11 were cited in support of this contention.
A vendor could not pass a better title than he himself had, relying on Ramlal & Anr. - v - Phagua & Ors, reported in AIR 2006 SC 623, para 18, Mahabir Gope and others - v - Habbans Narain Singh and others, reported in AIR 1952 SC 205, para 6.
Furthermore, both the decisions of the Calcutta High Court in the above writ application and dismissal of the suit in 1986 by the Alipur Court on the 7 ground of res judicata, were also res judicata in the present suit relying on Gulabchand Chhotalal Parikh - v - State of Gujarat, reported in AIR 1965 SC 1153, para 60,61, Commissioner of Endowments and others - v - Vittal Rao and others, reported in AIR 2005 SC 454, para 24 to 29, Narayana Prabhu Venkateswara Prabhu - v - Narayana Prabhu Krishna Prabhu (dead), reported in AIR 1977 SC 1268, para 18 to 20, The State of Punjab - v - Bua Das Kaushal, reported in AIR 1971 SC 1676, para 4,5.
Furthermore, the instant suit was filed in the Alipur Court after sixteen years of purchase of the property by the respondents. Delay alone should have prevented the court from passing any order, relying on some well settled principles of law.
If an order is perverse, a court exercising jurisdiction under Article 227 of the Constitution of India is empowered to set it aside relying on Nibaran Chandra Bag - v - Mahendra Nath Ghughu, reported in AIR 1963 SC 1895. If there is gross failure of justice, then also the court can interfere citing Trimbak Gangadhar Telang and another - v - Ramchandra Ganesh Bhide and others, reported in AIR 1977 SC 1222, para 3, State of A.P. - v - P.V. Hanumantha Rao (Dead) through lrs. and another, reported in (2003) 10 SCC 121 (para 30).
RESPONDENTS:
First of all, it was contended on behalf of the respondents that easement rights granted by a written and registered document could not be taken away by any concession made in court.8
In any event, the judgment of the writ court cannot be res judicata as the proceedings was a writ application and the issues involved there arose out of sanction of a building plan by the Kolkata Municipal Corporation. Moreover, any statement made on behalf of the predecessor in interest of the respondents in court could not take away a right of easement granted by a written and registered deed. Furthermore, that judgment cannot be res judicata for the issues involved in the suit.
Reliance was placed on S. Saktivel (dead) by Lrs. - v - M. Venugopal Pillai and others, reported in (2000)7 SCC 104, Chandrakant Shankarrao Machale - v - Parubai Bhairu Mohite (dead) through L rs. reported in (2008) 6 SCC 745 to submit that, the terms of a written instrument required to be registered and so registered, cannot be orally altered.
Further, it was contended that according to the decision of the Supreme Court in Smt. Ganga Bai - v - Vijay Kumar and others, reported in AIR 1974 SC 1126, there cannot be an appeal against a finding. Therefore, the predecessors of the interest of the respondents could not be said to be in default for not challenging the said finding of the writ court.
As far as the Alipur suit which was dismissed in 1986 is concerned it was submitted that the suit filed by the petitioner was dismissed on the ground of res judicata. Therefore, the respondents could not possibly file an appeal from such dismissal. At any rate, the suit has been decided against the petitioner. So, the predecessor in interest of the respondents rightly did not file any appeal.
9Furthermore, it was submitted that the grant of an interlocutory injunction is on an appreciation of the prima facie case and evaluating the balance of convenience. Appreciation of prima facie case means appraisal of the merits of the case on the available evidence. Once the learned judge of the court below has made an assessment of the facts, of the prima facie case and has come to a finding granting the order of injunction, this court should not interfere with such grant. Reliance was placed on Dalpat Kumar and another - v - Prahlad Singh and others, reported in (1992)1 SCC 719, para 1 and 6.
DISCUSSION AND CONCLUSIONS:
Of crucial importance is the implication of the judgment and order of this Court, dated 16th August, 1979 passed by T.K. Basu, J. in the Writ Application of Smt. Arati Guha being Matter No. 434 of 1979, Smt. Arati Guha
- v - Corporation of Calcutta and others. It is said that the learned counsel on behalf of the predecessors in interest of the respondents, had, on specific instruction, given up his client's easement right over the said passage, in the said litigation.
The following passage in the judgment is relied upon:
"On the basis of the above document, Mr. Roy argued that the gift in favour of the respondent No. 6 by her father included an easement right over the 8' common passage of all sorts in, over and along the side passage. Interestingly, it was pointed out that the plot that was gifted to the respondent No. 6 as aforesaid, was the front portion of the vacant land abutting on Rash Behari Avenue. Therefore, it was submitted, that it was not necessary to confer the easement right on the common passage for ingress and egress. It was contended that the specific intention of the donor was that the 10 easement right may be enjoyed in case the donor intended to construct a building on the vacant land and wanted an easement of support."
...............................................
"In my view, the contention of Mr. Roy is absolutely sound and should be accepted. As I have already indicated the respondent No. 6 was the donee of the front portion of the original plot which belonged to Phani Mohan Banerjee. Therefore, she did not need the common passage for the purpose of ingress and egress. The obvious intention, in my view, of conferring on the respondent No. 6 the wide easement rights of all sorts was that she should have right to the easement of support, in the event of her constructing a building on the said vacant land. I accept the contention of Mr. Roy that this is a case of acquisition of a right of easement of support by express grant."
On the basis of the recording of the statement of the learned counsel and the finding made in that passage of the judgment it was argued (a) since the property of the respondents was situated in the front portion they did not need the said passage as a means of egress and ingress as held by this court.
(b) the donor did not intend to grant this easement right (c) it was the intention of the donor to grant only an easement of support. It was also submitted that at any rate by virtue of such submission and finding that right had been extinguished.
As I have already noted, the learned Counsel for the respondents submitted that as the above passage was only a recording of a fact or a finding, there was no right of appeal from it. Otherwise, the said order was in favour of their predecessors in interest. That is why no appeal was preferred by her against such finding. I have also indicated the argument made on their behalf that as the easement right was granted by a registered deed, it could not be relinquished by any concession made in court by counsel.
11The respondents' property has to be considered the dominant heritage or tenement and the petitioner's property the servient heritage or tenement. To the dominant or respondents' tenement was annexed, by virtue of conveyance of the property, an easement right of way over the said passage.
Section 6(c) of the Transfer of Property Act, 1882 enacts that "an easement cannot be transferred apart from the dominant heritage".
Section 2(6) of the Registration Act, 1908 includes within immovable property inter alia "right of way".
Thus any transfer of easement requires registration.
But easement rights can also be acquired by prescriptive user of at least twenty years (See S. 25 of the Limitation Act.) However, the authorities tell us that easement rights can also be relinquished. Thereafter, they are extinguished, without the need for registration.
The English law of easements is substantially applicable in our country. It was codified by the Indian Easements Act, 1882. But, this Act was not made applicable throughout India. Its principles are, according to old authorities which are legion. I need not recite them.
I quote the following passages from Gale on Easements, Fourteenth Edition, Page 316:
"Form of release An easement may be extinguished by express release. It would appear that, in the case of easements, as of other 12 incorporeal rights, an express release, to be effectual at law, must be under seal. This rule, however, must not be taken to exclude a written instrument not under seal, or even a parol declaration, as evidence to show the character of any act done, or any cessation of enjoyment. And in equity an easement may be lost or modified by agreement.
It seems that a release by deed "which is the act of the party shall be taken most strongly against himself.""
I also quote the following passage from its 15th Edition at page 352:
".......Hence, though the law regards with less favour the acquisition and preservation of these accessorial rights than of those which are naturally incident to property, and, therefore, does not require the same amount of proof of the extinction as of the original establishment of the right, yet as an easement, when once created, is perpetual in its nature, being attached to the inheritance and passing with it, some acquiescence on the part of the absolute owner of the dominant tenement is necessary to give effect to any act of abandonment. In Tehidy Minerals ltd. v. Norman the Court of Appeal held that abandonment of an easement or a profit a prendre can only be treated as having taken place where a person entitled to it has demonstrated a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else. In that case the subjection by commoners of their rights of grazing to the control of an association was, as the Court of Appeal found, only a temporary and terminable arrangement, not sufficient to infer abandonment."
The narration of the submission of the learned counsel in the said passage of the judgment should be very strictly construed, in my opinion. The learned counsel was only expressing his opinion on the intention of the donor in granting easement rights. According to him, as there was sufficient frontage 13 the easement was intended to be confined to an easement of support only. That was the interpretation given by the learned counsel of the easement rights in the deed of gift. Furthermore, as counsel appearing in that application he was of the opinion that the requirement of his client could be satisfied if only an easement of support was available. The Court found that the predecessor of the respondents did not need the passage except for support. That concession should be strictly confined to the requirements of the case at that point of time and cannot be said to be a concession to give up the right of easement for all times to come. When the easement right over the passage was granted by a deed duly executed and registered, this court would be very slow to come to a conclusion on the basis of the said submissions of Counsel and the said finding of the Court that the right had been permanently abandoned or relinquished. An oral declaration may be taken as evidence to show cessation of enjoyment, according to Gale.
Therefore, the question whether or not any easement right was permanently relinquished by the predecessor in interest of the respondents will have to be decided more fully at the trial of the suit.
But a question which is of utmost importance, in my opinion, is res judicata. The learned Judge of the Alipur Court had decreed Title Suit No. 98 of 1983 filed by the mother of the petitioner by holding that the issue in the suit relating to the right of egress and ingress of the respondents over the said passage had become res judicata by virtue of the decision of this court made on 16th August, 1979 in the said writ application. Accordingly, the suit was dismissed.
I read the material part of the judgment and decree dated 17th April, 1986 in that suit :
14".....The writ application being no. 434/79 was decided on full contest. Definitely, the said decision passed in writ application being no. 434/79 is binding upon the parties of the present suit and as the general principle of res judicata the present suit is barred by principle is barred by principle of res judicata. The ld. Lawyer for the defendant submits that the decision of the High Court on writ petition operates as res judicata in a subsequent regular suit between the same parties with respect to (pages no. 6) the same matter. In support of his contention he relies on a decision reported in A.I.R. 1965 (S.C.) at page 1151, in where it was held that the decision of the High Court on a writ petition under Art 226 of the constitution on the merites on a matter after contest will operate as res judicata in a subsequent regular suit between the parties on the same matter.............................However, the present plaintiff filed a writ petition being no. 434/79 in the Hon'ble High Court against the Calcutta Corporation including the present defendant and others (pages no. 8) for revocation of the defendant's sanction plan on the main allegation that the defendant's building encroaches on the 8 ft. passage i.e. suit passage. The defendant of the present suit having been the respondent no. 6 of the said writ petition contested the said writ petition which was rejected on contest with a finding that the plaintiff has right, title and interest over the suit passage and the defendant has easement right over and along the suit passage and also His Lordship rejected the plaintiff's contention as to the alleged encroachment of the suit passage. The said matter was decided on full contest. As such, the said decision is binding upon the parties. But the ld. Lawyer for the plaintiff cited certain authorities as to the provisions of easement rights which I do not feel any necessary to consider the same at this stage in view of the earlier decision passed by His Lordship. This court has no jurisdiction to reopen the same issue of encroachment once again. In view of the above, discussion I have nothing but to hold that there has been no encroachment on the right of ownership of the plaintiff over the 8'ft. common passage i.e. suit passage. However, in view of my foregoing discussion as well as finding on issue no. 2, the plaintiff is not 15 entitled to get any decree or any relief. Hence, I decide these three issues in favour of the defendant."
As the suit was filed by the predecessor in interest of the petitioner, and it was dismissed, it was submitted before me by the learned counsel for the respondents that their predecessor in interest thought that such dismissal of the suit had resulted in a favourable order for her.
But, in my opinion, his client was absolutely wrong. The court refused to adjudicate the issue on the ground that the self-same issue had been decided by this court at an earlier point of time. Therefore, determination of that issue by this court was treated to be final and binding between the parties. Therefore, the court did not entertain the issue afresh.
No appeal was preferred from such decree of the learned Alipur Court. Therefore, that judgment and decree has become prima facie res judicata for the issues involved therein.
Now, in my opinion, the learned Appellate Court below ought not to have re- opened that issue.
Of course, in view of my observations above, to what extent the above issue has become res judicata by virtue of said decree of the learned Alipur Court made on 17th April, 1986 has to be ascertained fully at the trial of the present suit. But prima facie, I am of the opinion, that it has become res judicata.
Furthermore, the respondents acquired title to the front side property in 1990. It is very important that from 1990 they did not make any attempt to establish their alleged easement rights over the said passage. It appears that at all material points of time the petitioner asserted exclusive rights over the 16 said passage. The suit in which the impugned order was passed was instituted in 2006, about 16 years after the respondents acquired their title. Therefore, after such delay, on the existing facts, there was no warrant for the court below to pass an order of injunction.
Moreover, on the facts above, the learned Appellate Court below was plainly in grave error in proceeding to pass an order of injunction. On the admitted facts as elucidated by me above, no order of injunction could have been passed and there could not have been two opinions about it. Therefore, the order of the learned Appellate Court below can be termed as perverse and can be interfered with. (See Nibaran Chandra Bag - v - Mahendra Nath Ghughu, reported in AIR 1963 SC 1895,para 15). There is also a gross failure of justice which is a ground for interference (see Trimbak Gangadhar Telang and another - v - Ramchandra Ganesh Bhide and others, reported in AIR 1977 SC 1222, para 3), (See also State of A.P. - v - P.V. Hanumantha Rao (Dead) through lrs. and another, reported in (2003) 10 SCC 121 para 30).
Therefore, the order dated 26th August, 2008 granting injunction is set aside.
In the facts and circumstances of the case the suit before the Trial Court is expedited. The court below is requested to dispose of the suit within a period of six months from the date of its being apprised of this order. This application is accordingly allowed. In the facts and circumstances there is no order as to costs.
Urgent certified photocopy of this judgment and order, if applied for, to be provided upon complying with all formalities.
17(I.P. MUKERJI, J.)