Madhya Pradesh High Court
Dhananjan Bisen vs Devi Bai And Anr. on 26 September, 2001
Equivalent citations: AIR2002MP79, 2001(4)MPHT298, AIR 2002 MADHYA PRADESH 79, (2002) 1 MPLJ 149, (2003) 1 RENCJ 216, (2002) 1 RENCR 193
ORDER S.P. Khare, J.
1. This is defendant's second appeal under Section 100, CPC. Arguments on the question of admission heard.
2. The dispute is in respect of eight feet wide passagge on the western side of the houses belonging to the plaintiffs as shown in the map annexed to the plaintiff the plaint and also in the map Ex. P-8. It is admitted that Ramchand was originally the owner of the land and he sold plots to different persons. Ex.P-3 is certified copy of registered sale-deed dated 22-2-1956 executed by Ram-chand in favour of Motilal. In this sale-deed it is mentioned.
^^vkB QqV dk jkLrk if'pe dh vksj ls esu jksM dks tkus dk jgsxk tehu jkepUn dh gS flQZ vkus tkus dk fjLrkjh gd vkidk jgsxkA** The plaintiffs are the successors-in-title of Motilal. Ram-chand sold the land on the western side of the plot of Motilal to the defendant's father by registered sale-deed dated 2-12-1957 (Ex. D-3) including the land on which right of way was granted to Motilal.
3. The Trial Court after considering the documentary and oral evidence of both the sides held in Para 9 of its judgment that Ramchand had granted right of way to Motilal on eight feet wide land but this was a licence given to Motilal and it stood revoked when Ramchand sold that land to the father of the defendant. The First Appellate Court disagreeing with this view held that the transferee of Ramchand is also bound by the grant of passage to Motilal and that would enure to the benefit of the successive transferees of Motilal.
4. There is a concurrent finding of fact on this point that the original owner of the land had expressly granted eight feet wide passage on the western side to Motilal while transferring the plot to him. This was a case of creation of easement by the owner by "express grant" on the land belonging to him as per Section 8 of the Easements Act. Motilal became the dominant owner of the plot sold to him and the eight feet land over which the easement was imposed by the owner became the servient tenement. As per terms of the grant incorporated in the sale-deed dated 22-2-1956 (Ex. P-3) the creator of easement would continue to be owner of the land covered by the passage but the transferee would have Nistari right of way on that land. Thus Motilal acquired right of passage on the land in dispute for the beneficial enjoyment of the plot purchased by him, as per Section 12 of the Act. The plot purchased by Motilal changed several hands and now the plaintiffs are transferees of that plot. Therefore, with the transfer of the dominant heritage to the plaintiffs the easement on the servient tenement also stood transferred to him by virtue of Section 19 of the Act. An easement annexed to the dominant tenement passes with it to the person in whose favour the transfer takes place. That is also the effect of Section 8 of the Transfer of Property Act. An casement passes with the property for the beneficial enjoyment of which it exists, as a thing appurtenant thereto. As the benefit of an easement passes with the dominant tenement into the hands of subsequent owner of that tenement, similarly the burden of it passes with the servient tenement to every person into whose occupation the servient tenement comes. Therefore, the defendant who is transferee from Atmaram is bound by the express grant of the easement. In Ramanamma v. Anthamma (AIR 1955 AP 199) it has been observed after quoting a passage from 'Gale on Easements', "When once an easement is validry created it is annexed to land. The benefit of it passes with the dominant tenement and the burden of it passes with the servient tenement to every person into whose occupation the dominant and servient tenements respectively come".
5. The view of the Trial Court that only a licence was given to Motilal is incorrect and the decision of the First Appellate Court is factually and legally correct. No substantial question of law is involved in this appeal. It is dismissed in limine.
6. Second Appeal dismissed.