Gujarat High Court
Heirs Of Uttambhai vs Thakordas Ranchhoddas on 8 January, 2013
Author: C.L.Soni
Bench: C.L. Soni
HEIRS OF UTTAMBHAI HARKISANDASV/STHAKORDAS RANCHHODDAS BHUTWALA....Respondent(s) C/SA/58/1989 JUDGEMNT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL NO. 58 of 1989 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE C.L. SONI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ HEIRS OF UTTAMBHAI HARKISANDAS & 4....Appellant(s) Versus THAKORDAS RANCHHODDAS BHUTWALA....Respondent ================================================================ Appearance: MS KJ BRAHMBHATT, ADVOCATE for the Appellant(s) No. 1 - 1.4 , 2 MR BHARAT J SHELAT, ADVOCATE for the Respondent. ================================================================ CORAM: HONOURABLE MR.JUSTICE C.L. SONI Date : 08/01/2013 ORAL JUDGMENT
1. This appeal under section 100 of the Code of Civil Procedure is filed by the original plaintiffs who had filed Regular Civil Suit No. 476 of 1974 claiming easement right of light and air through Vada land of the respondent defendant and of discharging rainy water on the said vada land through three ft. iron sheet roof from the first floor of the plaintiffs. It is the case of the plaintiffs in the suit that the plaintiffs are the owners of the property bearing Ward No. 6 Nondh No.1120 at the corner of Bhut Street in the city of Surat and on the north side of the said property, open land called as Vada Land of the defendant bearing Ward No.6 Nondh No. 1270 is situated. Constructed property of the plaintiffs consists of ground floor and the first floor. It is the case of the plaintiffs that at the ground floor level, the plaintiffs have iron sheet wall wherein at the height of about 5 ft., there is iron grill (Jali) of about 10 ft.x 1.5 ft. facing vada land on the north side. It is also the case of the plaintiffs that at the first floor, construction is of two rooms and there is window of iron grill (Jali) of 3x4 ft. on north side. It is the further case of the plaintiffs that the plaintiffs have also placed iron sheet roof of 3 ft. covering kitchen and window on the first floor from which the rainy water drained down on 3 ft. vada land under the said roof. The plaintiffs are thus getting light and air through the windows from the north direction and also getting rainy water drained through the iron sheet roof on three ft. vada land of the defendant. The plaintiffs acquired such right of easement for the last 75 years and there is no physical change in the nature of two properties. The plaintiffs have further claimed in the suit that 3 ft. sheet of first floor is abutting on the vada land of the defendant and therefore, they are the owners of 10x3 ft. below the said iron sheet and the defendants are not entitled to remove such sheets and by way of alternative plea, the plaintiffs have claimed easement right to such land. It is the case of the plaintiffs that prior to filing of the suit, son of the defendant had quarreled and threatened for closing the grill (Jali) and therefore the suit is required to be filed.
2. The suit of the plaintiffs was resisted by the defendant by filing written statement stating that the windows of the plaintiffs are not abutting in the north side on the vada land of the defendants but the kitchen which was on the side of vada land of the defendant. It is further stated that on the first floor also, the plaintiffs are not using the rear room and the plaintiffs have got no right to make window in the north rear room of the first floor. The plaintiffs have also no right to discharge rainy water in the vada land. Defendants have also stated that 3 ft. iron sheets roof of the plaintiffs is not falling in the vada land of the defendant. The plaintiffs have thus no easement right as claimed on the vada land of the defendant. It is stated that the plaintiffs have made changes in their property and they are getting light and air from the southern side of the property. The plaintiffs are not entitled to keep windows in the north side of rear room. It is stated that the light and air from the vada land are not necessary for the plaintiffs as the plaintiffs are getting sufficient air from the front portion of their property. It is lastly stated that the plaintiffs will not suffer any damage if the windows of the plaintiffs in the north side are closed and, therefore, the plaintiffs are not entitled to any relief in the suit.
On the basis of the pleadings, learned trial Judge framed following issues at Exh53:
(1)Whether the plaintiffs prove that they have a right of easement of light and air through their windows of the northern wall on the ground floor and of northern and southern walls of the first floor abutting the vada land of the defendant, as described in para (1) of the plaint?
(2) Whether the plaintiffs prove that they have a right of easement to pass rainy water from their roof to the vada of the defendant?
(3) Whether the plaintiffs are entitled to get the relief as claimed at para (8) of the plaint?
(4) What order and decree?
4. It is required to be noted that no issue in respect of the claim for adverse possession was framed by the trial court and in fact, no such issue appears to have been decided by the trial court. Learned trial Judge on appreciation of evidence came to the conclusion that the plaintiffs have proved that they have easement right by prescription and that the plaintiffs will suffer substantial injury if such easement right to get light and air is obstructed by the defendant. Learned trial Judge thus allowed the suit of the plaintiffs by judgment and decree dated 20.10.1984 declaring that the plaintiffs have got right of easement of light and air in their property Ward No.6 Nondh No.1120 through their windows of the northern wall on the ground floor and of northern wall of the first floor abutting vada land of the defendant bearing Ward No.6 Nondh No. 1270 as described in para 1 of the plaint. Further declaration was granted that the plaintiffs have got the right of easement to discharge the rainy water from their roof of their property bearing ward No.6 Nondh No.1120 to the vada land of the defendant bearing ward No.6 Nondh No. 1270 and restrained the defendant and his agents permanently from closing the windows of the northern wall of the ground floor and the northern wall of the first floor of property bearing ward No.6 Nondh No. 1120. The learned trial Judge also restrained the defendant and his agents from obstructing the plaintiffs enjoying the right of light and air through above windows and also restrained the defendant and his agents from cutting iron sheets roof in the house of the plaintiffs which fall in the vada land of the defendant.
Being aggrieved by the above said judgment and decree, the defendant filed Regular Civil Appeal No. 272 of 1984. The learned appellate Judge framed the two points for determination which are as under:
(1) Whether learned Judge below has erred in holding about acquisition of a right to take light and air?
(2) Whether the learned Judge below has erred in holding about acquisition of right to drop eves in the wada land of defendant?
On appreciation of the evidence, learned appellate Judge observed that during the course of hearing, it was made clear before the court that at the time of hearing of the suit before the lower court, the plaintiffs had given up plea of ownership and did not lead any evidence on that point to establish the ownership. The plaintiffs have thus by their conduct preferred to elect the issue of easement right. Learned appellate Judge thus came to the conclusion that in view of the above declaration before the court, the plaintiffs cannot succeed in the matter of acquisition of easement right over the property of the defendant, as it was incumbent upon the plaintiffs after giving up the plea of ownership to establish that they enjoyed right with requisite annum which is necessary ingredient and that too from a particular point of time so as to establish their peaceful, adequate, open and uninterrupted user for a period of more than 20 years. Learned appellate Judge further observed that there is absolutely nothing in the evidence on record as to from which date the plaintiffs started to enjoy right as easement over the property of the defendant while giving up the plea of ownership over the said land and on the contrary, when the plea of ownership was given up at the time of hearing on 12.12.1980, it could be held that from 12.12.1980, the plaintiffs started to enjoy the right as easement over the property of the defendant. From said date, statutory period for acquisition of easement right by prescription is not over, therefore, it cannot be said that the plaintiffs have acquired right of easement as claimed by them. On such reasoning, learned appellate Judge ultimately allowed the appeal by judgment and decreed dated 31st December, 1988 and quashed and set aside the judgment and decree passed by the learned trial Judge and dismissed the suit of the plaintiffs. It is this judgment and decree which is challenged in this appeal.
This appeal was admitted by this Court on the substantial questions of law framed in appeal memo at page 7 which are under:
(1) Whether the Lower Appellate Court has substantially erred in law in fixing the starting point of acquisition of the easement right by the plaintiffs only from 12.12.80 on which date the plaintiff had made the election of giving up the plea of ownership acquired by adverse possession over the land belonging to the defendant?
(2) Whether the Lower Appellate Court has substantially erred in not holding that the claim of ownership by adverse possession being a greater claim, once that claim was abandoned, the plaintiffs could establish the exercise of right which was lesser right, which was enjoyed all through out the statutory period?
(3) Whether the Lower Appellate Court has substantially erred in law in holding that the plaintiffs had not established the enjoyment of the easement right for a statutory period?
I have heard learned advocates for the parties. Ms. Varsha Brahmbhatt for learned advocate Ms. Kalpana Brahmbhatt for the appellants submitted that the claim in the suit for easement right for light and air through window from north side of vada land of the defendant was purely by way of prescriptive right and with such right, no claim of ownership was attached in alternative in the suit. The claim of ownership by adverse possession, though initially made in the suit in connection with the discharge of rainy water through 3 ft. iron sheet on the vada land but in the suit proceedings itself, such claim was waived and, therefore, no issue was raised in the suit. No evidence on such issue was led by the plaintiffs nor even such issue was focused by the learned trial Judge at the instance of the plaintiffs. In fact, such issue about ownership was not at all decided. Therefore, such issue had never arisen before the trial Court. She submitted that the trial court on appreciation of the evidence when found that the plaintiffs have acquired easement right by prescription, learned appellate Judge without assigning cogent reasons and also without discussing the evidence on record could not have up-set such finding of fact recorded by the trial court. She submitted that the plea for easement for light and air through the windows from the north side through vada land was purely on the basis of long usage of such easement and for such right, no alternative plea for ownership by adverse possession was put forth. She submitted that the plaintiffs though claimed ownership for 3 ft. strip of land of vada on north side for the purpose of discharging of rainy water thereon, but having left and waived such plea during the trial, the learned appellate judge was not justified in taking the basis of such abandoned claim of the plaintiffs for the purpose of holding that the statutory period for establishing right of easement by prescription was not over and, therefore, the plaintiffs could not be said to have acquired right of easement by prescription. She submitted that though contradictory and alternative pleas are available to the parties to the proceedings of the suit, still, the claim of the plaintiffs for easement right was independent for light and air and claim of discharge of rainy water was also a claim for easement right after the claim of ownership was abandoned. She submitted that if the claim for ownership of 3 ft. strip from the vada land is not considered, then, the plaintiffs acquisition of easement right by prescription was well established for more than 20 years as the plaintiffs had been enjoying the same right from the year 1943 onwards. She, thus, submitted that this appeal is required to be allowed on the basis of the substantial questions of law framed by this Court.
As against the above said arguments, learned advocate Shri Shelat for the respondent submitted that the plaintiffs having claimed ownership right in the plaint and having prayed such ownership right in alternative for discharge of rainy water on 3 ft. strip of vada land, the plaintiffs are estopped from claiming easement right for discharge of the rainy water because the plaintiffs, once having claimed ownership on such 3 ft.strip from vada land, the plaintiffs could be said to have dominant owner for such land and such dominant owners are not entitled to claim easement right because such right then cannot be said to have been claimed on vada land. Mr. Shelat submitted that the trial court has committed material error in considering the only plea of easement right of plaintiffs especially when the plaintiffs had based their claim of acquisition of easement right with alternative claim of ownership on 3 ft. strip of vada land of the defendant. Mr. Shelat submitted that the appellate court has found as a matter of fact that the claim of ownership was given up by the plaintiffs during the hearing on 12.12.1980 and, therefore, appellate court has rightly come to the conclusion that the statutory period for acquiring easement right by prescription would begin only from the said date. Therefore, the plaintiffs having not completed 20 years period for the purpose of establishing right of easement by prescription, the plaintiffs were rightly non-suited by the learned appellate Judge. Mr. Shelat submitted that even otherwise also, the learned appellate Judge has found as a matter of fact that the plaintiffs have failed to establish by any evidence that the plaintiffs had in fact enjoyed easement right for a period of more than 20 years, the plaintiffs were not entitled to any relief in the suit. He, thus, submitted to dismiss the appeal.
Having heard the learned advocates for the parties and having perused the judgment and decree passed by the Courts below with the records and proceedings of the case, it appears that the plaintiffs have claimed right of easement of light and air through the windows on the north side from vada land of the defendant and also of discharging rainy water on the north side vada land of the defendant. Though the plaintiffs in their plaint have claimed ownership of 3 ft. strip of land from vada land but claimed easement right in alternative. But the plaintiffs then abandoned such claim of ownership. The learned trial Judge has, therefore, not framed any issue on such claim nor even the plaintiffs adduced any evidence in support of such claim. Therefore, claim of ownership of the plaintiffs was not at all surviving when the suit was decided.
Though it is permissible to take contradictory and alternative pleas in the suit, still, when a party claims easement rights on somebody else s land and also claims ownership right to such land, such party once fails to prove ownership, is not entitled to any relief of right of easement by prescription. Hon'ble the Supreme Court in the case of Chapsibhai Dhanjibhai Danad versus Purushottam,reported in 1971 (2) SCC 205 has held and observed in paragraph 19 that a party to a suit can plead inconsistent pleas in the alternative such as right of ownership and a right of easement, but, where he has pleaded ownership and has failed, he cannot subsequent turn around and claim that right as an easement by prescription.
Present is not a case where the plaintiffs had continued with his plea of ownership and then failed to prove such plea. Learned appellate Judge has recorded that when the suit was pending, the plaintiffs had already abandoned such plea of ownership, therefore, there was no question of failure of the plaintiffs to prove such plea of ownership. If the plaintiffs had already abandoned such plea of ownership and have not taken chance to prove such plea, the plaintiffs could not be non suited simply on the ground that the plaintiffs claimed in the plaint and prayed for ownership right for 3 ft. strip vada land of the defendant. The plaintiffs have consciously given up such plea and also not insisted for raising of any issue on such plea of ownership nor the plaintiffs have led any evidence on such plea, therefore, it cannot be said that the plaintiffs had failed to prove such plea of ownership and then pressed upon the plea of easement right. Under such fact situation, the learned appellate Judge was not justified in fixing the date of 12.12.80 for the purpose of deciding as to whether the plaintiffs have completed statutory period of 20 years for enjoyment of easement right for the purpose of establishing easement by prescription. Once the plaintiffs had decided not to pursue such plea of ownership, the suit remained only for the purpose of claim of easement rights and in that circumstances, the lower appellate court was required to decide as to whether the plaintiffs had successfully proved easement by prescription or not. The lower appellate court has, therefore, not properly approached the issue as to whether the plaintiffs acquired easement right by prescription. In my view, the lower appellate court has materially erred in holding that the plaintiffs could be said to have started enjoying of easement only from 12.12.1980. Thus, this finding of the lower appellate Court cannot stand scrutiny of law.
Then remains the issue as to whether the plaintiffs could be said to have successfully proved that they have acquired right of easement by prescription. It is required to be noted that the learned trial Judge has, on appreciation of the evidence of the plaintiffs at Exh. 63 and also evidence of the defendant at Exh. 136 and after considering the physical position of two properties, found as a matter of fact that the plaintiffs have been enjoying easement right of light and air as also of discharging rainy water on north side 3 ft. strip of vada land of the defendant for more than 20 years. Learned trial Judge has considered the evidence of one Jayantibhai at Exh. 142 and recorded finding that the plaintiffs have been getting light and air through their window on rear portion of their property i.e. on north side. Learned trial Judge has further come to the conclusion that the plaintiffs purchased the property in 1943 and since then, more than 20 years have passed and the plaintiffs have been uninterruptedly enjoying light and air through their windows and also right of discharging rainy water on the vada land of the defendant. Such was the finding of fact recorded by learned trial Judge on the basis of the evidence available on record. As against this, learned appellate Judge has just cursorily stated in the judgment that the plaintiffs have not established that the plaintiffs have been enjoying easement right for more than 20 years. For arriving at such finding, the learned appellate Judge has just narrated the position of two properties. However, learned appellate Judge failed to consider the deposition of the defendant himself as also of independent witness whose evidence clearly established that the plaintiffs had been getting light and air through the windows of their property and the plaintiffs have been discharging rainy water on 3 ft. strip of vada land. I am, therefore, of the view that the learned appellate Judge has materially erred in interfering with the judgment and decree passed by the learned trial Judge without assigning any cogent reason for upsetting the finding recorded by the learned trial Judge on the above issue. In my view, the learned trial Judge has on appreciation of the evidence, rightly held that the plaintiffs have established enjoyment of easement right for more than statutory period and thereby acquired right of easement by prescription.
For the reasons stated above, appeal is required to be allowed on the substantial question of law framed by this court.
In the result, the appeal is allowed. Judgment and decree passed by the first appellate court is quashed and set aside and the judgment and decree passed by the learned trial Judge is hereby restored.
(C.L.SONI, J.) anvyas Page 15 of 15