Calcutta High Court (Appellete Side)
Sri. Avijit Mitra & Ors vs Sri. Shankar Lal Roy on 8 November, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
S.A 96 of 2017
Sri. Avijit Mitra & Ors.
Vs.
Sri. Shankar Lal Roy
For the Appellants: Mr. Partha Pratim Roy,
Mr. Tanmoy Mukherjee.
For the Respondent: Mr. Probal Kumar Mukherjee, Sr. Adv.,
Mr. Debjit Mukherjee, Ms. Susmita Chatterjee, Mr. Kaustav Bhattacharya.
Heard on: August 9, 2019.
Judgment on: November 8, 2019.
BIBEK CHAUDHURI, J. : -
1. The instant second appeal is directed to be heard on the following substantial questions of law:-
Whether both the Courts below committed substantial error of law by not holding that the plaintiff/respondent herein being the owner of holding No.29, Baje Shibpur 2nd Bye Lane at best claim for easementary right to use the 10 ft. wide common passage of the appellant only to the extent of ingress and egress to Baje Shibpur 2nd Bye Lane through their 4 ft. 4 inches passage and not beyond that or not.
2. Now the facts that resulted in filing of the suit by the respondent/plaintiff:-
3. The plaintiff instituted Title Suit No.199 of 2009 in the 2nd Court of the Learned Civil Judge (Junior Division), Howrah stating, inter alia, that he is the absolute owner of premises No.29, Baje Shibpur 2nd Bye Lane by dint of a registered deed of partition executed on 12th April, 1972. On the contiguous north of the plaintiff's premises, there is a 10 ft. wide common passage running from east to west and culminates with Baje Shibpur 2nd Bye Lane. The plaintiff and prior to his ownership, predecessor-in-interest of premises No.29 Baje Shibpur 2nd Bye Lane has been/had been using the said passage with all its easementary rights. They have been using the said passage for the purpose of ingress and egress upto the northern end of their house, for effecting repairing of the northern side wall and also for discharging rain water from the roof of their house etc. The electrical and water pipe lane of the premises of the plaintiff run beneath the said passage. Thus, the plaintiff has been enjoying right of easement over the said common passage continuously, uninterruptedly, openly and without any obstruction from the defendants or any other contiguous owner. The defendants, however, constructed a wall along the northern side of the plaintiff's premises and thereby blocked the plaintiff's free access to the said passage.
4. It is pertinent to mention here that premises No.29 Baje Shibpur 2nd Bye Lane has been depicted as 'A' schedule property, while the said common passage is described as 'B' schedule property and subsequently constructed wall measuring about 50 ft. 3 inches in length and 3 ft. in height is described as 'C' schedule property in the plaint and the abevementioned properties will be described hereinbelow indicating the schedule as stated in the plaint for the sake of brevity and convenience.
5. On being obstructed as such, the plaintiff prayed for a decree of declaration that he is the absolute owner of 'A' schedule property and he has acquired an indefeasible right of easement over 'B' schedule property to reach, use and enjoy elevated portion of northern side wall of 'A' schedule property (roak) and other consequential reliefs in the form of permanent prohibitory and mandatory injunction.
6. The defendants/appellants contested the suit by filing written statement denying all material allegations made out against them by the plaintiff. Specific case of the defendants is that they are absolute owners and occupiers of holding No.27/2, 27/3, 27/3/1, 27/3A, 27/4, 27/6 and 27/7 Baje Shibpur 2nd Bye Lane. The 'B' schedule property is situated on holding No.27/5 and it is the exclusive passage of the defendants to reach Baje Shibpur 2nd Bye Lane. The plaintiff has no manner of right, title and interest over the said passage. It is further alleged that the plaintiff had always greedy eye to grab 'B' schedule property. So, they stated some illegal construction on the northern wall of their house, when the defendants protested and raised objection against such illegal construction, the plaintiff filed Title Suit No.199 of 2009 against the defendants.
7. On the basis of the pleadings, the learned trial judge framed as many as eight issues.
8. During trial of the suit, on the prayer of the plaintiff, local inspection was held.
9. Parties led evidence, both oral and documentary which I propose to refer and discuss subsequently in the body of the judgment.
10. The learned trial judge on due consideration of evidence on record decided the material issues in favour of the plaintiff and decreed the suit on contest.
11. The defendants led the dispute inter se to Appeal which was registered as Title Appeal No.1335 of 2014. The said appeal was also dismissed on contest.
12. Against such concurrent finding of fact, the defendants have preferred the instant appeal.
13. On such overall factual background and also on due consideration of the substantial question of law formulated by the Division Bench in the instant appeal, one thing is clear and admitted by both parties, viz, the plaintiff's (hereafter referred to as the respondent) right of easement over a portion of the common passage upto his entrance of premises No.29 Baje Shibpur 2nd Bye Lane is not disputed. Only question that requires consideration of this Court is as to whether such easementary right of the plaintiff extends upto the end of northern side wall of 'A' schedule property or not.
14. It is absolutely necessary at the outset to consider as to whether the factual findings recorded by the learned trial court and affirmed by the first appellate court should be interfered with unless such finding of fact was based upon wrong appreciation of evidence on record or non consideration of material evidence. In both the cases, concurrent factual finding can be interfered with under Section 100 of the Code of Civil Procedure as being perverse.
15. While dealing with a similar question, the Hon'ble Supreme Court in Hero Vinoth (minor) vs. Seshammal reported in AIR 2006 SC 2234 observed as follows:-
"13. Though as rightly contended by learned counsel for the appellant the scope for interference with concurrent findings of fact while exercising jurisdiction under Section 100 CPC is very limited, and re-appreciation of evidence is not permissible where the trial Court and/or the first Appellate Court misdirected themselves in appreciating the question of law or placed the onus on the wrong party certainly there is a scope for interference under Section 100 CPC after formulating a substantial question of law."
16. Mr. Partha Pratim Roy, learned Advocate for the appellant submits that the respondent did not claim easement over the servient tenement by prescription though a case was tried to be made out that for beneficial enjoyment of 'A' schedule property, the respondent and prior to him, his predecessor-in-interest has/had been using the 'B' schedule passage for more than 100 years. However, the said fact could not be proved by the respondent during trial. The respondent, however, tried to establish his right of easement over the 'B' schedule property as easement of necessity. According to the respondent, he cannot use, repair or renovate northern side wall of his premises running from east to west. Admittedly, adjacent to northern side wall there is an elevated portion (roak) within the respondent's property. The plaintiff can reach north-western end of his premises through the said roak. For this purpose, plaintiff cannot claim right of easement of necessity over 'B' schedule property which is owned by the appellants. It is specifically contended by Mr. Roy that an easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but where dominant tenant cannot be used at all without the easement.
17. It is further submitted by Mr. Roy that the respondent filed Title Suit No.199 of 2009 praying for declaration of his title over 'A' schedule property and right of easement by prescription through 'B' schedule property, and permanent injunction. It is also pointed out by Mr. Roy that the plaint was amended during the trial of the suit and amended plaint was filed on 10th May, 2011. Mr. Roy draws attention of the court to the statement made by the plaintiff in paragraph 2, 3, 4 and 5 of the plaint. The relevant portion of the plaint are reproduced below:-
"2. That the said property of the plaintiff as fully described in the schedule A below has been clearly depicted and delineated in the plan annexed herewith by 'red border line' and 10ft. width common passage situated at the Northern side of the said A-Schedule property stretching from West to East has been similarly depicted and delineated in the plan annexed herewith by 'yellow border line' and morefully described in the schedule B below.
3. That as already stated, the plaintiff has all sorts of rights including rights of easement and other rights over the said 10ft. width common passage as fully described in the schedule B below and as mark of exercising such rights, the plaintiff has taken underground water pipeline connection and electric connection beneath the said 10ft. width common passage i.e. B-schedule common passage and also discharging the rain water of his building standing over the "A" schedule property over the said "B" schedule common passage through rain water pipe numbering three fixed on the northern side of his roof and also by erecting scaffolding for the purpose of repairing "A" schedule property without any objection or protest from any corner whatsoever including the present defendants even long prior to the date of partition, openly and continuously for more than 100 years since the time of their predecessor in-interest.
4. That the present defendants claimed to have their right, title, and interest in respect of holding no. 27/2, 27/3, 27/3/1, 27/3A, 27/4, 27/6, 27/7 Baje Shibpur 2nd by lane, P.S. Shibpur, Dist. Howrah and also claimed that the said B-Schedule common passage as situated at and appertains to Holding no. 27/5 Baje Shibpur 2nd by lane, P.S. shibpur, dist. Howrah.
5. That the plaintiff begs to state that the A schedule property has been described in the schedule GA to the aforesaid registered Deed of partition dated 12.04.1972 with a plan annexed thereto and has also been depicted and delineated in the said plan by colour RED. The plaintiff further begs to state that since the acquisition of the aforesaid property in the aforesaid manner on and from 12.04.1972 the plaintiff has been using occupying and enjoying the said B schedule common passage continuously un-interruptedly and openly in various manner and ways including ingress and egress either on foot or through vehicle and also took water and electric connection beneath the said 10 ft. width common passage by erecting scaffolding for the purpose of repairing 'A' schedule property and also has been discharging the rain water of his building through the open rain water pipe fixed on the northern side of the roof numbering three continuously and uninterruptedly since 12.04.1977 and even long long prior to that since the time of their predecessor by using all sorts of other right through the said B-schedule common passage and thus acquired a right of easement by prescription of such uninterrupted and continuous user of the said B-schedule common passage by the plaintiff and his family members for more than the statutory period without any objection or protest from any corner whatsoever including the present defendants and also other owners or co-owners if there be any, in respect of the aforesaid holding No.27/2, 27/3, 27/3/1, 27/31, 27/4, 27/6, 27/7 including 17/5 Baje Shibpur 2nd Bye Lane, P.S. Shibpur, Dist. Howrah."
18. It is submitted by Mr. Roy that the respondent became the owner of 'A' schedule property by virtue of a registered deed of partition dated 12th April, 1972. It is specifically pleaded by the respondent that since the date of acquisition of 'A' schedule property, he has been using and enjoying 'B' schedule common passage, continuously, uninterruptedly and openly in various manners and ways including ingress and egress either on foot or through vehicle and also took water and electric connection through the said common passage to his house. According to Mr. Roy the statement made by the plaintiff in paragraph 2 and paragraph 5 cannot be reconciled as they are contradictory to each other. The plaintiff/respondent was not sure as to whether he acquired right of easement by prescription over 'B' schedule passage or he started enjoying and using the said passage since 12th April, 1972. It is also urged by Mr. Roy that according to the plaintiff, cause of action for the suit arose sometimes in 2008 when the plaintiff converted his north-eastern side room at the ground floor into a garage and fixed a rolling shutter on the northern wall to keep a motor car purchased by his son and the appellants obstructed him from using the said room/garage through 'B' schedule common passage for the purpose of keeping a motor car therein. It is also pointed out by Mr. Roy that indisputably, the northern side common passage has touched Baje Shibpur 2nd Bye Lane on the eastern side. Common passage for ingress and egress to premises No.28 and 29 Baje Shibpur 2nd Bye Lane runs from north to south from the 'B' schedule passage. Admittedly, the plaintiff being the owner of premises No.29 Baje Shibpur 2nd Bye Lane has been using 10 ft. wide common passage upto the point it touches 4 ft 4 inches wide common passage belonging to the plaintiff and his co-sharer. Thus, it is submitted by Mr. Roy that the plaintiff and his family members enter and use 'B' schedule passage upto the point it touches the common passage for ingress and egress of 'A' schedule property and premises No.28 Baje Shibpur 2nd Bye Lane. The plaintiff has no right to use and enjoy 'B' schedule passage runs from east to west abutting northern side wall of 'A' schedule property. It is vehemently argued by Mr. Roy that the respondent hopelessly failed to prove that he used the 'B' schedule passage upto the north western side wall of 'A' schedule property at any point of time. In order to substantiate his contention, Mr. Roy next draws my attention to the local inspection report. According to Mr. Roy, the plaintiff pleaded that there is an elevated portion running from east to west abutting the northern side wall of 'A' schedule property and the plaintiff used to use and enjoying the elevated portion (roak) through 'B' schedule passage. However, the Commissioner's report (Exhibit-4) is completely silent about existence of such elevated portion (roak) on the northern side of the wall of plaintiff's 'A' schedule property. Mr. Roy next submits that the defendants/appellants are admittedly owners of holding No. 27/2, 27/3, 27/3/1, 27/3A, 27/4, 27/6 and 27/7 Baje Shibpur 2nd Bye Lane. 'B' schedule common passage appertains to holding No.27/5 Baje Shibpur 2nd Bye Lane. The said common passage is the private common passage of the defendants for their ingress and egress. The plaintiff has no manner of right, title and interest over the said common passage. The plaintiff cannot claim easement of necessity or easement by prescription over the 'B' schedule passage. Mr. Roy submits that easement has been said to be a privilege which is the owner of one tenement has a right to enjoy over the tenement of another. It has also been defined as a right on the strength of which one person has to use the land of another for a specific purpose, not inconsistent with a general right of ownership of the owner, or as a servitude imposed as a burden of land. It may be defined as a service or convenience which one neighbor enjoys, without profit upon, over, or from any land or water of another. In the instant case the plaintiff/respondent has admittedly a private common passage running from north to south on the eastern side of 'A' schedule property and holding No.28 Baje Shibpur 2nd Bye Lane. When the plaintiff has a passage for ingress and egress to his own property, he cannot use 'B' schedule passage as an easement. Even assuming that rain water from the roof of 'A' schedule property belonging to the plaintiff percolates on 'B' schedule passage, it does not create any right of easement in favour of the plaintiff. The learned trial judge as well as the First Court of Appeal failed to appreciate such aspect of the matter and decreed the suit on perverse appreciation of evidence on record.
19. In support of his contention, Mr. Roy refers to a decision of this Court in the case of Doorga Churn Dhur and Anr vs. Kally Coomar Sen reported in (1881) ILR 7 CAL 145. Mr. Roy particularly refers to the following observation of the above stated report:-
"It may be mentioned here, that a right of way along a private road belonging to another person does not give the dominant owner a right, that the road shall, in no respect, be altered, or the width decreased; for his right does not entitle him to the use of the whole of the road, unless the whole width of the road is necessary for his purpose; but it is merely a right to pass with the convenience to which he has been accustomed. The right, therefore, merely extends to that portion of the centre of the road, which is necessary for the due exercise of the right of passage. The only obligation upon the servient owner is that he shall not unreasonably contract the width of the road, or render the exercise of the right of passing less easy than it was at the time of the grant."
20. Coming to the instant case, it is submitted by Mr. Roy that a right of way alone over a private passage belonging to the defendants is in the nature of easement by implied grant. Such grant must be construed upto the limit where 'B' schedule passage touches the private common passage of the plaintiff and the owner of holding No.29 Baje Shibpur 2nd Bye Lane. The respondent cannot claim the right of way through the said common passage beyond the limit that joins their private common passage with the 'B' schedule passage for their ingress and egress to and from 'A' schedule property. The only obligation upon the appellants is, that they cannot unreasonably resist the respondent to use the said portion of 'B' schedule common passage that joins with the private common passage of the respondent and the owner of premises No.28 Baje Shibpur 2nd Bye Lane so that they can conveniently reach the municipal road. For convenient use of 'A' schedule property, plaintiff does not require to use 'B' schedule passage to the extent of north-western end of 'A' schedule property. Since the plaintiff has alternative passage to use and enjoy 'A" schedule property, he cannot claim 'B' schedule passage as easement of necessity. In this regard Mr. Roy also refers to another decision of this Court in the case of Abhoya Chandra Ghosh and Ors. vs. Raj Kumar Ghosh and Ors. reported in 60 Ind Cas 504. Paragraph 3 of the said report is quoted below:-
"3. An easement of necessity is an easement which, under particular circumstances, the law creates by virtue of the doctrine of implied grant to meet the necessity of a particular case. It is an easement which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one without which that tenement cannot be used at all. Such an easement lasts only so long as the necessity exists, for a grant arising out of the implication of necessity cannot be carried further than the necessity of the case requires."
21. According to Mr. Roy, it is not the case of the respondent that 'A' schedule property being dominant tenement cannot be used at all without 'B' schedule passage. Indisputably, the respondent uses the private common passage running from north to south on the eastern side of 'A' schedule property. When the respondent has his own private passage to use 'A: schedule property, he cannot claim easement over 'B' schedule property. The learned trial judge as well as the First Court of Appeal failed to consider the guiding principles relating to easement and the extent of right which the owner of dominant tenement is entitled to enjoy over servient tenement.
22. Mr. Probal Mukherjee, learned Senior Counsel on behalf of the respondent, at the outset submits that the Indian Easements Act, 1882 is not in force in the State of West Bengal. However, though the Act does not apply to Bengal, but the principles led down therein shall apply. (see, Krishna Chandra Chatterjee vs. Chief Superintendent, Central Telegraph Office, Calcutta : 58 CWN 814 and Baidyanath Dutt vs. Radheshyam Dutt : AIR 1979 CAL 79. With this introduction, Mr. Mukherjee submits that an easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own. A private easement is defined as a right to utilize the servient tenement as a means of access to or egress from the dominant tenement for some purpose connected with the enjoyment of dominant tenement, according to the nature of that tenement. This right may originate either by express grant or prescription. Such a private right of way presupposes the existence of a dominant tenement and a servient tenement.
23. Coming to the instant case, it is urged by Mr. Mukherjee that admittedly one Late Jawharlal Roy, father of the respondent and his brother Sailendra Roy was the original owner of premises No.28 and 29 Baje Shibpur 2nd Bye Lane. After the death of the said Jawharlal Roy, the abovementioned premises was partitioned by a registered deed of partition dated 12th April, 1972 and the respondent became the absolute owner of premises No.29 Baje Shibpur 2nd Bye Lane. It is also not disputed that on the adjacent western side of 'A' schedule property, there exists premises No.27 and 27/2 Baje Shibpur 2nd Bye Lane which was owned by the appellants. The said premises was amicably partitioned by and between the defendants by a registered deed of partition dated 10th February, 1959. Certified copy of the deed of partition dated 10th February, 1959 was marked as Exhibit-5 at the instance of the respondent and also as Exhibit-A by the appellants. However, it is pointed out by Mr. Mukherjee that the partition plan is annexed with Exhibit-5, but the said plan was not annexed with Exhibit- A. It is further pointed out by Mr. Mukherjee that from the partition plan annexed with Exhibit-5 it appears that the premises of the appellants are situated on the adjacent west of 'A' schedule property.
24. Mr. Mukherjee next submits that in both the partition plan annexed with the partition deeds of the plaintiff and his co-sharer (Exhibit-1) and that of the defendants (Exhibit-5/Exhibit-A), 10 ft. wide common passage running from Baje Shibpur 2nd Bye Lane on the north of 'A' schedule property of the respondent is shown to be in existence. As per the partition deed dated 10th April, 1972 executed by and between the respondent and his brother, the respondent became the absolute owner of holding No.29 Baje Shibpur 2nd Bye Lane. The description of the said premises is described in the partition deed in schedule 'GA', butted and bounded by a common passage on the east, 10 ft. wide common passage on the north ('B' schedule property), holding No.28 Baje Shibpur 2nd Bye Lane on the south and the building and land of one Radhadas Mitra on the west. He also mentioned that the said Radhadas Mitra is the predecessor-in-interest of the defendants. Thus, it is submitted by Mr. Mukherjee that the existence of 10 ft. wide common passage on the north of 'A' schedule property is recognized in both the partition deeds by virtue of which the respondent and the appellants became the owners of their respective holdings. Mr. Mukherjee further submits that the appellants admitted limited user of 'B' schedule common passage by the respondent to the extent of ingress and egress to Baje Shibpur 2nd Bye Lane through their 4 ft. 4 inches passage and not beyond that.
25. Under such factual background it is for the Court to determine whether the respondent enjoys a right of easement over 'B' schedule common passage by foot or through vehicle upto north-western end of 'A' schedule property. It is urged by Mr. Mukherjee that to constitute a common passage, it must be held that the said 'B' schedule passage is common with the plaintiffs because commonality of user of the passage by the respondent arises only upto the north-western side end of 'A' schedule property. In other words, B schedule common passage must be held to be common between the occupiers of all the premises abutting to the passage. Mr. Mukherjee further draws my attention to Exhibit-D (collectively) which is the original Record of Rights in respect of 'B' schedule passage. In the Record of Rights 'B' schedule passage is described as a passage for the user of the occupiers of the holdings or premises situated adjacent to or appertaining to the said passage (Nikatastha Dager Byabarharja). According to the learned Senior Counsel on behalf of the respondent entry in the Record of Rights is considered as an evidence of possession. Exhibit-D shows that 'B' schedule passage is used as a passage or 'path' by the occupiers of adjoining holdings/premises. At this stage, the appellants cannot claim that 'B' schedule passage is a common passage for exclusive use of the them only.
26. It is further submitted by Mr. Mukherjee that the respondent being the owner of 'A' schedule premises has the right to use and enjoy the said premises to its entirety. Beside 'B' schedule passage, the respondent cannot use the northern side of his premises upto the end in any manner. He has no alternative way to reach north-western side of 'A' schedule property. Therefore, both the Courts below rightly held that the right of the respondent to use 'B' schedule passage is in the nature of easement of necessity which the law creates by virtue of the doctrine of implied grant to meet the necessity of a particular case. In the instant case, it is established by evidence that there is an elevated portion (roak) constructed on the northern side wall of the plaintiff's 'A' schedule property up to the western side end of the said property. The plaintiff cannot use and enjoy the said roak if he is not allowed to use the 'B' schedule passage. It is clear from evidence on record specially from Exhibit-1 and Exhibit-D that the respondent use and enjoy 'B' schedule passage at least prior to 1972.
27. Admittedly, the respondent converted one of his northern side rooms into a garage sometimes in 2008 by fixing a rolling shutter gate on the northern side wall to keep a motor car purchased by his son. The appellants out of jealousy resisted the respondent from using the said room through 'B' schedule passage. It is needless to say that the plaintiff has the right to convert one of his rooms to a garage. He has the right to use, occupy and enjoy a room according to his own wish. However, if it is found that the plaintiff cannot use and enjoy his premises or any part of it at all without a particular privilege in or over the land of the other, the privilege is what is called an easement of necessity, and the grant of it is implied and passes over without any express word.
28. Mr. Mukherjee submits that for the purpose of deciding the case of the easement of necessity, it is sufficient if a party claiming easement of necessity can establish that for effective user of a party in the ordinary way for its designed purpose, the right of easement over servient tenement is essentially necessary. In support of his contention, he refers to a decision of this Court in the case of Sm. Pravabati Roy and Anr. vs. Dwijendra Lal Sengupta and Anr. reported in AIR 1987 Cal 97. Mr. Mukherjee particularly draws my attention to the observation made by this Court in the above mentioned report as hereunder:-
"It does not appear to be a correct principle in law that even if by effecting thorough remodelling of an existing structure, the structure so re-modelled can be used without the right of easement on the disputed property, a claim for easement of necessity will then stand defeated. The Court, in my view, should take a pragmatic view of the facts and circumstances and find out whether the property in question cannot ordinarily be effectively used without taking recourse to right of easement on some other's property. In this connection reference may be made to the observation of Gale on Easement (14th Edition at page 118) since relied on by Mr. Mukherjee "If, however a particular part of the property cannot, without the right claimed, be used for its designed purpose, then it is probably true to say that a right of access for that purpose will arise as of necessity." Whether or not a particular property can be effectively used without using the right of passage over a disputed property is basically a question of fact and both the courts below have concurrently found that the claim of easement of necessity in favour of the plaintiffs. In the aforesaid circumstances, I do not think that in a second appeal, in the absence of any strong and cogent material on the basis of which it can be demonstrated that such finding was perverse, should take any contrary view. Hence, the findings of the courts below that the easement over the passage in dispute is an easement of necessity is accepted by this Court."
29. Mr. Mukherjee next refers to a decision of the Hon'ble Supreme Court reported in AIR 2010 SC 622 Sree Swayam Prakash Ashramam & Anr. vs. G. Anandavally Amma and Ors. In this report, the Hon'ble Supreme Court considered the scope of Section 8 of the Indian Easement Act and was pleased to hold that an easement of grant can be inferred by implication. The fact of the above mentioned report is that the properties of the plaintiff and the defendant were part of a vast land used by its owner for Ashram. Part of the said property was granted to the plaintiff by the defendant, Ashram as per wishes of the owner. The disputed pathway was only access to the property granted to the plaintiff. The plaintiff had been using the said pathway continuously even before and after grant. No other access to the plaintiff's property could be established by the defendant. Under such facts and circumstances, the Hon'ble Supreme Court held that the right to access through the disputed pathway was implied easement by grant in favour of the plaintiff.
30. Mr. Mukherjee also refers to another decision of this Court in the case of Anna Poorna Datta vs. Santosh Kumar Set reported in AIR 1937 Cal 661. It is held by this Court in the aforesaid decision that if an owner after subjecting one part of his property by a quasi-easement alienates a portion of the same, the purchaser takes the portion with all the conveniences or quasi-easement that are apparent and continuous. A right of way, being not continuous and ordinarily not apparent, would not pass on severance unless language is used by the grantor to create a fresh easement. A grant of a right of way may be inferred from the words "common passage" used as a boundary in the conveyance.
31. Relying on the principles led down in the above mentioned decision, it is submitted by Mr. Mukherjee that in the deed of partition by virtue of which the holdings of the appellants were partitioned amongst its co-sharers in the year 1959 (Exhibit-5/Exhibit-A), 'B' schedule passage was described as common passage. Holding No.28 and 29 Baje Shibpur 2nd Bye Lane were partitioned between the respondent and his brother in the year 1971. In the said deed of partition as well as plans annexed to the said deed (Exhibit-1) 'B' schedule passage was shown as a common passage. The said passage was recorded in the Record of Rights (Exhibit-D series) as a common passage for the user of the adjoining occupiers of the premises. Except 'B' schedule passage, there is no alternative access of the plaintiff to reach north-western end of his house. Moreover, it is specifically admitted by the defendants/appellants that the plaintiff had access to a part of the said common passage from Baje Shibpur 2nd Bye Lane upto the point that meets the private passage running from north to south for ingress and egress of the residential houses of the plaintiff and his brother. However, the plaintiff would not be able to use and enjoy northern side wall of 'A' schedule property without the right of easement over 'B' schedule passage. The plaintiff/respondent converted a northern side room of 'A' schedule property to a garage fixing a rolling shutter gate on the northern wall of the said room. He cannot have any access to the said room beside the 'B' schedule passage, if he is denied user of the 'B' schedule common passage by foot and also by vehicle and in such case his right of access will stand defeated. Whether 'A' schedule property can be effectively used without using the right of passage over 'B' schedule property is essentially a question of fact and both the courts below have concurrently found that the claim of easement of necessity in favour of the plaintiffs. The appellant failed to demonstrate that such finding by both the courts below was perverse warranting interference by this court in second appeal. In fine, according to Mr. Mukherjee, no substantial question of law is involved in the instant appeal and the appeal is liable to be dismissed. In order to buttress his argument, Mr. Mukherjee relies upon a decision of the Hon'ble Supreme Court in the case of Dagadabai (Dead) by Legal Representatives vs. Abbas Alias Gulab Rustum Pinjari reported in (2017) 13 SCC 705.
32. Facts of the case are not dispute.
33. Admittedly the father of the respondent and his brother was the owner of holding No.28 and 29 Baje Shibpur 2nd Bye Lane. The said property was partitioned by a registered deed of partition between the plaintiff and his brother in the year 1972. Similarly it is not disputed that the predecessor-in-interest of the present appellants was the original owner in respect of holding No.27 and 27/2 Baje Shibpur 2nd Bye Lane. The said premises were partitioned by and between the appellants in the year 1959. 'B' schedule passage is owned by the defendants. It is the case of the respondent that the said common passage had been in use and enjoyment for more than 100 years by his predecessors and after partition by him and his family members as a common passage upto the north- western end of his house which is described as 'A' schedule property in the plaint.
34. The appellants on the other hand, claimed that the said common passage described in schedule 'B' of the plaint is the private passage common to the defendants for their ingress and egress to premises No. 27/2, 27/3, 27/3/1, 27/3A, 27/4, 27/6 and 27/7 from Baje Shibpur 2nd Bye Lane.
35. It is also not disputed that the respondent converted a northern side room 'A' schedule property to a garage sometimes in 2008 to keep a motor car purchased by his son. The appellants also did not deny that they constructed a wall on 'B' schedule passage blocking the northern side wall and elevated portion of the plaintiff's house.
36. Under the aforesaid facts and circumstances the plaintiff instituted Title Suit No.199 of 2009 praying for declaration of right of easement of necessity over the 'B' schedule passage and permanent injunction commanding the defendants/appellants to demolish the wall constructed by them causing obstruction to the plaintiff and his family members in peaceful enjoyment of northern side rooms and wall of 'A' schedule property.
37. The trial court on due consideration of evidence on record came to the finding that the plaintiff has right of easement over 'B' schedule passage for his use and enjoyment of northern portion of 'A' schedule property. The said finding was upheld by the First Court of Appeal.
38. Learned Senior Counsel for the respondent has advanced his argument that the right of way over the 'B' schedule passage is in the nature of easement of necessity. However, the law relating to easement of necessity is well settled and codified in Section 13 of the Indian Easements Act, 1882. An easement of necessity arises only at the time of severance of joint tenements, when an easement is necessary for enjoyment of the transferred or partitioned property. An easement of necessity is an easement without which a property cannot be used at all and not one merely necessary to the reasonable enjoyment of the property. Therefore, in order to claim easement of necessity over servient tenement, plaintiff is under obligation to prove that the property, being dominant tenement and servient tenement was joint before it was severed by transfer or partition. In such circumstances, after severance of the property the holder of dominant tenement can claim easement of necessity against the holder of servient tenement on certain circumstances illustrated in Clauses (a)-(f) of Section 13 of the Indian Easement Act, 1882. In the instant case the factual aspect is altogether different. The predecessor-in-interest of the appellants was the original owner of premises No.27 and 27/2 Baje Shibpur 2nd Bye Lane. The said property as partitioned by and between the appellants in 1959 and 'B' schedule passage is part of the defendants' property. The predecessor-in-interest of the respondent was originally the owner of premises No.28 and 29 Baje Shibpur 2nd Bye Lane which was partitioned amongst the respondent and his brother in the year 1972. Thus, the respondent did not acquire 'A' schedule property by transfer or by partition from the appellants. The respondent and the appellants are exclusive owners and occupiers of their properties in question and the plaintiff did not acquire title over 'A' schedule property by severance of tenements. If the facts of Anna Poorna Datta (supra) Sree Swayam Prakash Ashramam & Anr (supra) and Sm. Pravabati Roy and Anr (supra) relied on by the learned Senior Counsel for the respondents are taken into consideration, it would be found in all those reports that initially the demised property was either joint or under the ownership of a particular person and the demised property was severed either by transfer or by partition. Under such factual background, applicability of the easement of necessity arose before this Court as well as the Hon'ble Supreme Court for consideration. In the instant case, however, factual background is altogether different which I have narrated hereinabove in details.
39. It is pertinent to note that the respondent did not seek relief in the suit praying for right of easement of necessity over 'B' schedule passage. It is already noted that easement of necessity arises on the severance of tenement. The respondent did not make out a case that both the servient and dominant tenement where in common ownership and by subsequent transfer or partition, such common ownership was severed by and between the respondent and the appellants. On the contrary, it is admitted by the plaintiff/respondent in course of his evidence that 'B' schedule passage is owned by the defendants/appellants. However, the respondent claimed that he has been using the said common passage while taking underground water pipeline connection and electric connection beneath the said passage and also discharging the rain water of his premises standing on A schedule property over B schedule common passage through rain water pipes fixed on the northern side of the roof of his residential building and also by erecting scaffolding for the purpose of repairing the northern side wall of 'A' schedule without any objection or protest from any corner including the appellants even long before the date of partition executed by and between the respondent and his brother openly, continuously, peaceably with the knowledge of the appellants since the time of the predecessor interest of the respondent. The said evidence adduced by the respondent as PW 1 could not be demolished during his cross-examination. Existence of rain water pipes fixed on the northern side of the roof of the residential building of the respondent described in schedule 'A' of the plaint and user of at least a part of 'B' schedule common passage up to the point which meets the private common passage of the plaintiff are not denied by the appellants. The evidence of PW 1 was corroborated by the evidence as well as report of the Advocate Commissioner, the partition plans by virtue of which the property belonging to the respondent and his brother as well as that of the appellants were partitioned and the entry in records of rights in respect of 'B' schedule passage showing that the said passage is for the user of the occupiers of the adjoining premises.
40. Section 15 of the Easement Act deals with the acquisition of Easementry Right by prescription. The section runs thus:-
"15. Acquisition by prescription When the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, [[ and where support from one person's land or things affixed thereto has been peaceably received by another person's land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested."
41. Plain reading of the above mentioned provision shows that the following conditions are required to be established before an easement can become absolute by prescription;
i. There must be a pre existing easement which must have been enjoyed by the dominant owner;
ii. The enjoyment must have been peaceable;
iii. The enjoyment must have been as an easement;
iv. The enjoyment must have been as of right;
v. The right must have been enjoyed openly;
vi. The enjoyment must have been for a period of 20 years;
vii. The enjoyment for 20 years must have without interruption;
42. The Kerela High Court in Maniyan Krishnan and Anr. vs Maniyan Nanukuttan reported in AIR 1986 Ker. 75 has dealt with the issue of acquisition of Easementary Right for a path way by prescription in great detail. Paragraph 12 of the said report, being relevant offering statutory recognition of the principle is reproduced below;
"12. This section is the statutory recognition of the principle of English common law relating to acquisition of easement by prescription with some modifications. Prescription as a source of right in English law is generally described as being applicable only in situations where the servient owner could be regarded as having acquiesced in the user. The authoritative statement on this matter is made by Fry, J. in his advice to House of Lords in Dalton v. Angus, (1881) 6 AC 740. The learned Judge observed:--
"In many cases.......first, the doing of some act by one man upon the land of another; secondly, the absence of right to do that act in the person doing it; thirdly, the knowledge of the person affected by it that the act is done; fourthly, the power of the person affected by the act to prevent such act either by act on his part or by action of the Courts; and lastly, the abstinence by him from any such interference for such a length of time as renders it reasonable for the Courts to say that he shall not afterwards interfere to stop the act being done."
In Krishna Narain Agarwal v. Carlton Hotel (P) Ltd., 1969 SCD 1105 the Supreme Court has laid down that to establish the claim under Section 15 of the Easements Act, continuous user of 20 years as of right to do the act complained of in assertion of a title, peaceably and openly must be made out. The only point the learned counsel for the appellants wants to emphasise is that the user, even if for the required period is proved, it is not a user as of right. The enjoyment of the act complained of as of right contemplated by Section 15 of the Indian Easements Act is the same requirement of user nec precarion of English Common Law. Gale says (Gale on Easements, 14th Edn. page 176) that the enjoyment must not be permissive. What is permissive is precarious. What is precarious? "That which depends not on right but on the will of another person". Vide Burrows v. Lang, (1901) 2 Ch 502 at 510. The learned counsel for the appellants submits that the user in this case should be presumed on the consent and permission of the defendants. He submits that the Indian condition in regard to user of other's land for convenient access to main roads is a common and prevalent practice and that such user is not a user as of right. He submits that such use of neighbours' land never depends on right but on the consent and the good sense of the neighbour. The meaning of the word user as of right can be understood clearly from Halsbury's Laws of England 4th Edn. Vol. 14 page 41, para 83. The user or enjoyment of an alleged right must be shown to have been "as of right", the user as of right, having been enjoyed nec vi nec clam, nec precario (neither as the result of force, secrecy, or evasion) nor as dependent upon the consent of the owner of the servient tenements. Consent or acquiescence on the part of the servient owner lies at the root of prescription, and a grant cannot be presumed from long use without his having had knowledge or at least the means of knowledge. He cannot be said to acquiesce in an act enforced by mere violence, or in an act which fear on his part hinders him from preventing, or in an act which he has no knowledge actual or constructive, or which he contests and endeavours to interrupt, or which he sanctions only for temporary purposes, or in return for recurrent consideration." In substance, it means that the enjoyment should be without violence, without stealth and without permission. The importance is that the user must be peaceable, open and non-permissive. The learned counsel submits that in the circumstances of the case, the user should be considered not as of right but should be a user by permission."
42. The full bench of the Bombay High Court in Raychand Venmalidas vs Maniklal Mansukbai reported in AIR 1946 Bom. 266 (FB) observed and held as follows;
"To prove that the right was exercised as an easement, it is necessary to establish that it was exercised on somebody else's property and not as an incident of his own ownership of that property. For that purpose his consciousness that he was exercising that right on the property treating it as somebody else's property, is a necessary ingredient in proof of the establishment of that right as an easement. If a person has actually claimed ownership of the servient tenement in a previous litigation within the statutory period of twenty years, it may be regarded as an important piece of evidence to show that he did not exercise the right as an easement."
43. In the instant case, it is traced out from the partition plan of the plaintiff and his brother that the northern side common passage owned by the defendants was being used for discharging rain water, making repair northern side wall of 'A' schedule property etc. at least since 1972 or even before. It is already recorded that the respondent pleaded and proved by satisfactory evidence that he and his family members use and enjoy the 'B' schedule passage as a common path way by foot as well as through vehicles. The entry in the records of rights has established the claim of the plaintiff/respondent.
44. Undisputedly, the plaintiff got resistance from the aappellants after he converted the northern side room to garage in the year 2008. Prior to such obstruction the respondent and his family members had been using the said passage for various purposes up to the last point of the northern side way of A schedule property since 1972 openly peaceably and without any objection from the owners of servient tenement.
45. In view of the above discussion, this court find no scope to interfere with the concurrent findings of fact arrived at by the learned trial judge and affirmed by the final fact finding Court, i.e., the First Appellate Court.
46. Substantial question of law formulated in the instant appeal is accordingly answered against the appellants and in favour of the respondent.
47. The instant second appeal is thus dismissed on contest, however without cost.
48. The judgment and decree passed by the learned Additional District Judge, 2nd court, Howrah in Title Appeal No. 1335 of 2014 dated 31st January, 2017, affirming the judgment and decree passed by the learned Civil Judge (Junior Division), 2nd court, Howrah in Title Suit 199 of 2009 dated 22nd September, 2014 is affirmed.
48. The department is directed to send the lower court records along with a copy of this judgment forthwith to the court below.
(Bibek Chaudhuri, J.)