Orissa High Court
Dibakar Das & Others vs Sriram Das & Others on 25 April, 2024
A.F.R
IN THE HIGH COURT OF ORISSA AT CUTTACK
SA No.71 of 1994
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Dibakar Das & Others .... Appellants
-versus-
Sriram Das & Others .... Respondents
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellants - Mr. D.P. Mohanty, Advocate.
For Respondents - None
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :12.03.2024:: Date of Judgment :25.04.2024 A.C. Behera, J. This 2nd Appeal has been preferred against the confirming Judgment.
2. The appellants of this 2nd Appeal were the defendant Nos.1 & 2 before the Trial Court in the suit vide T.S. No.308 of 1984.
The respondent No.1 of this 2nd Appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.308 of 1984 and he was the Page 1 of 17 SA No.71 of 1994 {{ 2 }} respondent No.1 before the 1st Appellate Court in the 1st Appeal vide T.A. No.20 of 1987.
The respondent Nos.2 to 6 of this 2nd Appeal were the defendant Nos.3 to 7 before the Trial Court in the suit vide T.S. No.308 of 1984 and they were the respondent Nos.2 to 6 before the 1st Appellate Court in the 1st Appeal vide T.A. No.20 of 1987.
The suit of the plaintiff vide T.S. No.308 of 1984 was a suit for declaration of easementary right of way over the suit Plot No.324 under Hal Khata No.135 in Mouza Badagaon under Balikuda Police Station in the District of Jagatsinghpur and for permanent injunction.
3. The case of the plaintiff before the Trial Court in the suit vide T.S. No.308 of 1984 was that, Plot Nos.321 and 326 are his house and homestead properties. Suit Hal Plot No.324 is a Kaccha Road, which joins his above homestead plot Nos.321 & 326 and the village road. He (plaintiff) and his family members are using the said suit Plot No.324 as a road in order to reach in their village main road from the time of their ancestors i.e. since time immemorial. Their cattle, bullock-carts are passing through suit plot No.324. At times cars and trucks etc. comes through that suit plot No.324 to his house. There is no other outlet from his residential house situated over Plot Nos.321 and 326 to the village Page 2 of 17 SA No.71 of 1994 {{ 3 }} main road except the suit Plot No.324. By the continuous, uninterrupted and peaceful using to the suit plot No.324 as road, his easementary right of way on the suit plot No.324 has already been created/acquired.
In the Hal Settlement, the suit Plot No.324 has been recorded in the name of the defendant Nos.1 and 2 with Kisam thereof as road. The suit Hal Plot No.324 corresponds to Sabik Plot Nos.124,125,126,128,129 &
130. In the year 1953. When dispute arised among the owners of sabik Plot Nos.124, 125,126,128,129 & 130 concerning the use of the same, then, there was a Faisalanama and that Faisalanama was scribed by Ghanashyam Mohanty of village Kania, in which, it was written that, family members of the plaintiff have right to use the suit plot No.324 as a road. The length and breadth of the suit road is 200 links x 10 links. The defendant No.1 was entrusted with the task for recording the suit properties in the consolidation in favour of both the parties, but, he had managed to record the same in the name of the defendant Nos.1 and 2. In spite of such recording of the suit Hal Plot No.324 in the name of the defendant Nos.1 and 2, he (plaintiff) and his family members have been using the suit plot No.324 as a road as before.
Before filing the suit, the plaintiff had applied to get electric connection to his residential house on plot Nos.321 & 326 by fixing Page 3 of 17 SA No.71 of 1994 {{ 4 }} poles on suit Plot No.324, to which, the defendants objected, for which, he (plaintiff) approached the Civil Court by filing the suit vide T.S. No.308 of 1984 against the defendant praying for declaration his easementary right of way over the suit plot No.324 and to injunct the defendants by restraining them (defendants) permannently from creating any sort of disturbance in the use of the suit plot No.324 by him (plaintiff) and his family members as road/way to his house and in alternative to declare him (plaintiff) as a owner of the suit plot No.324.
4. Having been noticed from the Trial Court in the suit vide T.S. No.308 of 1984, the defendants contested the same by filing their joint written statement denying the allegations alleged by the plaintiff in his plaint against them (defendants) taking their stands inter alia therein that:
Plot Nos.321 and 326 belong to the plaintiff. Plot Nos.326 and 327 is adjacent to the village road. Plot Nos.327 is a tank and its embankment. The plaintiff has the way to come to the main road through the embankment of the tank on plot No.327. The suit land i.e. plot No.324 belong to the defendant Nos.1 & 2. They (defendants) have been using the Suit Plot No.324 as their own private passage. The Suit Plot No.324 has been recorded in their names by the consolidation authorities in the consolidation proceeding. Though the plaintiff had objected to such Page 4 of 17 SA No.71 of 1994 {{ 5 }} recording of the suit plot No.324 in their names before the consolidation authorities, but such objection of the plaintiff was rejected. The plaintiff has not preferred any appeal or revision before the higher forums of the consolidation. For which, that order against the plaintiff has already been reached in its finality.
The further case of the defendants was that, suit Hal Plot No.324 corresponds to Sabik Plot Nos.124, 125, 126, 128, 129 & 130. The plaintiff has never used the suit plot No.324 as a road in order to reach in the village road. As the plaintiff has claimed easementary right and in alternatively declaration of title over the suit properties simultaneously, then his none of the claim is maintainable under law. For which, the plaintiff is not entitled for any relief. Because the above two claims of the plaintiff simultaneously i.e. one for declaration of his easementary right and another is for declaration of his ownership over the suit properties simultaneously are not entertainable under law. Because, the claim of easement and claim of ownership cannot dwell together as per law. One cannot acquire easementary right over his own land.
The Hal suit Plot No.324 belong to the defendant Nos.1 and 2, in which the plaintiff has no manner of right, title, interest or easementary Page 5 of 17 SA No.71 of 1994 {{ 6 }} right. Therefore, the suit of the plaintiff is liable to be dismissed against them (defendants).
5. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 5 numbers of issues were framed by the Trial Court and the said issues are:
ISSUES
1. Whether the suit as laid down is maintainable?
2. Whether the suit is hit by Section 51 of Orissa Consolidation Act?
3. Whether the suit land is a passage being used by the plaintiff since long and thereby the plaintiff has acquired right of easement over the same or the plaintiff has right to use the suit land as co-owner?
4. Whether the plaintiff is entitled to get a decree of permanent injunction against the defendants?
5. To what relief, if any, the plaintiff is entitled to?
6. In order to substantiate the aforesaid reliefs sought for by the plaintiff against the defendants, during trial before the Trial Court, he (plaintiff) examined altogether 4 numbers of witnesses from his side as P.Ws.1 to 4 and relied upon series of documents vide Exts.1 to 3 on his behalf.
On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendants examined 2 numbers of witnesses including the defendant No.1 as D.W.2 and exhibited the documents vide Exts.A to D on their behalf.
Page 6 of 17 SA No.71 of 1994
{{ 7 }} One document was also marked as Ext.I at the instance of the court.
7. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the Trial Court answered issue Nos.3 and 4 in favour of the plaintiff and against the defendants as issue Nos.1 and 2 were not pressed and as per the findings made in issue No.5, the plaintiff was not entitled for other relief than the relief, to which, he has been entitled in the answers of issue Nos.3 & 4.
As per the findings and observations made in issue Nos.3 and 4 in favour of the plaintiff and against the defendants, the Trial Court decreed the suit of the plaintiff on contest against the defendant Nos.1 to 4 and ex- parte against other defendants and declared that, the plaintiff has right to use the suit plot as a Rasta for himself and for his family members, men, agents, cattles, ploughs and to run his all types of conveyances, men and materials to his residential houses on Plot Nos.321 and 326 and injuncted the defendants permanently restraining them (defendants) from interfering in any manner with the use of the plaintiff to the suit land as road assigning the reasons that, when the Kissam of the suit plot No.324 has been recorded as road and the same is joining the village road, then why the plaintiff will not use the same and why he (plaintiff) and his Page 7 of 17 SA No.71 of 1994 {{ 8 }} family members will use the embankment of the tank of Plot No.327 to go to the village road and since time immemorial i.e. for more than the prescribed period of 20 years, he (plaintiff) and his family members have been using the suit Plot No.324 as road to the knowledge of the defendants and their family members, for which, he (plaintiff) has acquired easementary right of way on the suit plot No.324. Therefore, he (plaintiff) is also entitled to get the decree of permanent injunction against the defendants and accordingly, the suit of the plaintiff was decreed by the Trial Court as per its Judgment and Decree dated 31.07.1987 and 12.08.1987 respectively against the defendants.
8. On being dissatisfied with the aforesaid Judgment and Decree passed in T.S. No.308 of 1984 in favour of the plaintiff and against the defendants, they (defendant Nos.1 and 2) challenged the same by preferring the 1st Appeal vide T.A. No.20 of 1987 being the appellant Nos.1 & 2 against the plaintiff.
After hearing from both the sides, the 1st Appellate Court dismissed that 1st Appeal vide T.A. No.20 of 1987 concurring/accepting to the findings and observations made by the Trial Court in favour of the plaintiff as per its Judgment and Decree dated 15.11.1993 and 26.11.1993 respectively in T.A. No.20 of 1987.
Page 8 of 17 SA No.71 of 1994
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9. On being aggrieved with the aforesaid Judgment and Decree of the dismissal of the 1st Appeal of the defendant Nos.1 and 2 vide T.A. No.20 of 1987, they (defendant Nos.1 & 2) challenged the same by preferring this 2nd Appeal being the appellants against the plaintiff arraying him (plaintiff) as respondent No.1 and also arraying the defendant Nos.3 to 7 as other respondents.
This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e. I. Whether the Right of Easement having been granted, as claimed by the plaintiff in respect of one land, if it proper for the courts below to allow the relief in respect of another land?
II. Whether the particular easement claimed being right of passage only if the dominant owner can be permitted to put addition burden on the servient tenant by fixing electric lines there over?
10. I have already heard from the learned counsel for the appellants only, as none appeared from the side of the respondents for hearing of this 2nd Appeal.
11. As per the pleadings of the plaintiff (respondent No.1 of this 2 nd Appeal) before the Trial Court in the suit vide T.S. No.308 of 1984, he (plaintiff) has claimed acquisition of his easementary right of way by prescription over the suit plot No.324 on the ground of using the same as Page 9 of 17 SA No.71 of 1994 {{ 10 }} road to his house in order to reach the main village road since the time immemorial for more than 20 years, as he (plaintiff) has no alternative way or passage to go to his house from the village road.
As per the Judgments and Decrees of the Trial Court and 1st Appellate Court in favour of the plaintiff, both the courts have held that, the plaintiff has established that, he (plaintiff) and his family members are using the suit Plot No.324 since time immemorial for more than the prescribed period of 20 years as road as of his right peacefully to the knowledge of the defendants, for which, he (plaintiff) and his family members have acquired their easementary right of way on the suit plot No.324 by prescription. So, why, the plaintiff and his family members without using the suit plot No.324 as their road, they will use the embankment of the tank in Plot No.327 as their way to reach in the village road from their house.
The plaintiff has made the above prayer in his plaint for declaration of his right of easement of way by prescription over suit plot No.324 as per Section 15 of The Indian Easements Act, 1882.
It is the settled propositions of law that, when in a suit like this suit at hand, the plaintiff prays for declaration regarding the acquisition of his right of easement of way by prescription over the suit properties against Page 10 of 17 SA No.71 of 1994 {{ 11 }} the defendant or defendants, in that suit, burden lies on him (plaintiff) to prove the facts clearly, those are essential as per law for the acquisition of easementary right of way by prescription, because the law is jealous of a claim to an easement, for the reasons that, owner of the land is prima facie entitled to the exclusive use and enjoyment of his own land and of the natural advantages arising from its situations and environments without let or hinderance. For which, the burden of proof of the elements constituting a right of easement lies on the person, who asserts that right of easement and thereby invades the natural right of the occupier (owner of the land), on which, right of easement is claimed.
Therefore, the plaintiff must establish that, (i) his/her use to the suit property was open and notorious (ii) his use to the suit property was with the knowledge and acquisition of the owner of the servient tenement (iii) that his use of the suit properties was continuous and uninterrupted, hostile and under the claim "as of right", exclusive and continued for the period requisite for the acquisition of an easement by prescription without change or material variation.
But, mere fact that, if the plaintiff proves that, he had been using the suit property openly, peaceably and uninterruptedly since very long Page 11 of 17 SA No.71 of 1994 {{ 12 }} period cannot lead to a presumption that, he had been using the same "as of right".
Therefore, when a person claims his/her easementary right of way over the suit property by prescription must specifically plead and prove that, he had been enjoying an easement i.e. suit property "as of right".
On this aspect, the propositions of law has already been clarified in the ratio of the following decisions:
I. AIR 2005 (SC) 236 & (2005) 1 SCC 471:
Justiniano Antao & Others Vs. Bernadette B. Pereira (SMT) (Para No.9) The Indian Easements Act, 1882, Sections 15,13 & 14--Acquisition of Right of way by prescription-- When it is not the case of the plaintiff that, he has been using the access "as of right" through the property of the defendants for more than 20 years. The suit must fail.
II. 2004 (4) ALLMR 325:Tanba Vs. Pandhari (Para No.9) The Indian Easements Act, 1882, Sections 15 & 13--An easement can be acquired by prescription under Section 15 of the Easement Act--Every occupier of the land is prima facie entitled to the exclusive use and enjoyment thereof and of the natural advantages arising from its situation and environments without let or hindrance. Every right of easement claimed is a restriction on such exclusive right and is an evasion of it.
Hence, the burden of proof of the element constituting a right of easement lies on the person who asserts that right and thereby invades the natural right of the occupier of the Page 12 of 17 SA No.71 of 1994 {{ 13 }} land on which the right is claimed. The law is jealous of a claim to an easement, and the burden is on the party asserting such a claim to prove it clearly.
where an easement is claimed by prescription, he must prove the facts essential to the acquisition of the prescriptive title. Thus, he must show that, the user was open and notorious, that, it was with the knowledge and acquisition of the owner of the servient tenement that, the use was continuous and uninterrupted hostile and under a claim of right, exclusive and continued for the period requisite for the acquisition of an easement by prescription, without change or material variation.
III. RFA 234 of 2007:Ravinder Kumar Sejwal &
Others Vs. D.D.A.
The Indian Easements Act, 1882, Section 15-- mere fact that a person proves that he had been using an easement openly, peaceably and uninterruptedly since a very long period does not lead to a presumption that he had been using the same 'as of right'. A person claiming easementary rights by way of prescription must specifically plead and prove that he had been enjoying an easement 'as of right'. (Para No.26) IV. 2012 (4) CCC 520: Kallen Devi Vs. Raghaban.
(Para No.22) The Indian Easements Act, 1882, Sections 13 & 15-- Suit for right of Easement--What should be the pleadings.
Easement being a precarious right, the law insists that there should be precise pleadings and supporting evidence also in that regard. Pleadings should be precise and definite. Even assuming that the "C" schedule is the only pathway the other ingredients are conspicuously absent in the pleadings and in the evidence. Plaintiff not entitled to succeed.Page 13 of 17 SA No.71 of 1994
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12. Here in this suit at hand, there is no pleadings and evidence on behalf of the plaintiff by stating that, the defendnats are the owners of the suit plot No.324 and he (plaintiff) has been using the suit plot No.324 of the defendants as road "as of right" in exercising his right of easement of way thereon by prescription against them (defendants) using the same more than the prescribed period.
For which, the pleadings and evidence of the plaintiff in setting the foundation for acquisition of his right of easement of way by prescription over the properties of the defendants i.e. over the suit properties is deficient.
Therefore, the plaintiff is not entitled under law to get the decree of declaration of his right of easement of way by prescription over the suit plot No.324.
It is the settled propositions of law that, a plaintiff cannot assert his/her right of easement of way over the suit properties without admitting the ownership/occupation of the defendant/defendants over that suit properties. So, the claim of easement of the plaintiff against defendant/defendants in respect of any suit property itself is an indirect Page 14 of 17 SA No.71 of 1994 {{ 15 }} admission to the ownership of the defendant/defendants over the suit properties by plaintiff.
But, in this suit at hand, nowhere in the pleadings and evidence of the plaintiff, he (plaintiff) has admitted the ownership of the defendants over the suit properties. Rather, he (plaintiff) has denied the ownership of the defendants over the suit properties praying for declaration of his title on the same alternatively.
So, the claim of easement of way over the suit properties by the plaintiff against the defendants without admitting them (defendants) as the owners of the suit properties is not entertainable under law.
That apart, the Judgments and Decrees of the Trial Court as well as the 1st Appellate Court are going to show that, the plaintiff has right of access to his village main road from his house through the embankment of tank on plot No.327, in which, he (plaintiff) is a co-owner.
13. It is forthcoming from the consolidation R.o.R of the suit plot No.324 that, the suit Plot No.324 under Khata No.135 has been recorded in the name of the defendant Nos.1 and 2 as their own private passage.
14. As per the discussions and observations made above, the essential ingredients for establishing the right of easement of way by prescription over the suit plot No.324 according to Section 15 of The Indian Page 15 of 17 SA No.71 of 1994 {{ 16 }} Easements Act, 1882 as clarified in the ratio of the aforesaid decisions are conspicuously absent in the pleadings and evidence of the plaintiff. For which, in view of the principles of law enunciated in the ratio of the decisions referred to supra, the plaintiff is not entitled to get the decree of declaration of his right of easement of way by prescription over the suit properties i.e. over the suit plot No.324.
Therefore, due to lack of specific pleadings and evidence on behalf of the plaintiff for establishing his right of easement of way by prescription over the suit properties, the Trial Court should not have decreed the suit of the plaintiff declaring his right of easement of way over the suit properties as well as permanent injunction against the defendants. For which, the Judgments and Decrees passed by the Trial Court as well as the 1st Appellate Court in T.S. No.308 of 1984 and T.A. No.20 of 1987 are required to be interfered with through this 2 nd Appeal filed by the appellants (defendant Nos.1 and 2).
15. So, there is merit in the 2nd Appeal of the appellants (defendant Nos.1 and 2). The same must succeed.
16. In result, the 2nd Appeal filed by the appellants (defendant Nos.1 and 2) is allowed on contest, but without cost.
Page 16 of 17 SA No.71 of 1994
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17. The Judgments and Decrees passed by the Trial Court in the suit vide T.S. No.308 of 1984 as well as by the 1st Appellate Court in T.A. No.20 of 1987 are set aside.
18. The suit be and the same vide T.S. No.308 of 1984 filed by the plaintiff is dismissed on contest against the defendant Nos.1 to 4 and ex parte against other defendants.
(A.C. Behera), Judge.
Orissa High Court, Cuttack.
Rati Ranjan Nayak// Senior Stenographer Date:25.04.2024 Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India Date: 25-Apr-2024 16:04:20 Page 17 of 17 SA No.71 of 1994