Gujarat High Court
Kantaben Parsottamdas vs Ganshyambhai Ramkrishan Purohit ... on 9 June, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SA/106/1989 CAV JUDGMENT DATED: 09/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 106 of 1989
With
CIVIL APPLICATION NO. 1 of 1989
In R/SECOND APPEAL NO. 106 of 1989
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KANTABEN PARSOTTAMDAS
Versus
GANSHYAMBHAI RAMKRISHAN PUROHIT DECEASED THROUGH HIERS
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Appearance:
MR JITENDRA M PATEL(620) for the Appellant(s) No. 1
for the Respondent(s) No. 1
MR JIGAR G GADHAVI(5613) for the Respondent(s) No. 1.2
MS BHARTI H RANA(2645) for the Respondent(s) No. 1.1,1.2,1.3,1.4
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 09/06/2022
CAV JUDGMENT
1. Being aggrieved and dissatisfied with the judgment and decree dated 12.08.1988 passed by the learned Second Joint District Judge, Vadodara, in Regular Civil Page 1 of 14 Downloaded on : Fri Jun 10 21:02:06 IST 2022 C/SA/106/1989 CAV JUDGMENT DATED: 09/06/2022 Appeal No.353 of 1984, the original defendant has preferred the present Second Appeal.
2. The appellant is the original-defendant and respondent is the original-plaintiff. For the brevity and convenience, the parties are referred to in this judgment as per the character assigned to them before the trial Court.
3. The plaintiff has filed the suit for permanent injunction for restraining the defendant from obstructing the plaintiff from passing over the land of the defendant. It was alleged by the plaintiff that he is the owner of the property of 370 Sq. ft. on external side of the Survey No.101/2 paiki of Tika No.6/1 situated in Kansara Pol of Chokhandi area of Vadodara City. There is a Chowk on west side of his property and parcel of land admeasuring 11 ft. X 8 ft., North-south and east-west respectively is claimed to have been owned by plaintiff. It is the case of the plaintiff that since last 35 years, he was the tenant of the said property at monthly rent of Rs.7/- and ultimately he has purchased from its original owner Mr. Krishnakant on 18.05.1981 by a registered sale deed. According to the plaintiff, the house of the defendant is situated on the north of his house and on west of house of the defendant, there is an open land admeasuring 10 ft. X 10 ft. It is contended by the plaintiff that from his house, he has to pass through this open land of the defendant, to go to "Ghanchi Gor Khadki" which ultimately leads to public Page 2 of 14 Downloaded on : Fri Jun 10 21:02:06 IST 2022 C/SA/106/1989 CAV JUDGMENT DATED: 09/06/2022 road and he is using this road since last 25 years continuously and without any obstruction. According to the plaintiff, there is no other road for ingress and outgress from his house to public road. It is the case of the plaintiff that he is using this suit way since he came to reside in the suit house as tenant. According to him, his predecessor also used to have access by the suit way only, but defendant is obstructing him in the use of suit way and hence he had filed R.C.S. No.1120/1976 against the defendant. At that point of time plaintiff was a tenant. The interim application filed in that suit came to be dismissed by the Trial Court as well as Appellate Court on the ground that there cannot be Easementary Right for a tenant.
3.1 Thereafter, the plaintiff had filed Suit No.229/1979 in the Court of Small Causes, where his application for interim injunction was rejected on the ground that the Small Causes Court cannot decide the question of Easementary Right. It is a further case of the plaintiff that in view of the fact that he has purchased a suit house by registered sale deed from Mr. Krishnakant, Small Causes Court shall not have any jurisdiction vested in it and therefore, he has filed the present suit and withdrawn the earlier suit filed before the Small Causes Court.
3.2 According to the plaintiff, he has acquired the right of way over the open land of the defendant and he is Page 3 of 14 Downloaded on : Fri Jun 10 21:02:06 IST 2022 C/SA/106/1989 CAV JUDGMENT DATED: 09/06/2022 using the suit way since last 25 years continuously, without any obstruction or interruption. According to him, as there is no any other alternative way available to him except the suit way for ingress and outgress, if the said way is closed, he would not be in a position to use his house. According to him, as the defendant is trying to obstruct him, he has filed the present suit claiming the right of easement by way of prescription and/or by way of necessity and sought for permanent injunction against the defendant.
4. It appears from the record that the defendant resisted the suit by filing written statement at Exh.12 in Trial Court. It was contended that the suit is barred by limitation. It is also contended that in a suit R.C.S. No.1719/1968, the present plaintiff was restrained from disturbing the peaceful enjoyment of suit property of bathroom privacy and kachha room of the defendant. The said decree was confirmed upto second appeal. It is contended that thereafter plaintiff filed R.C.S. No.1120/1976, wherein, he prayed for interim injunction which came to be dismissed upto High Court. Thereafter, the plaintiff's wife Jayaben filed R.C.S. No.364/1978, which also came to be dismissed. According to the defendant, thereafter, plaintiff filed another Rent Suit No.229/1979, wherein, also interim relief came to be rejected. Thereafter, plaintiff filed one another suit bearing No.1079/1979, which is pending. According to Page 4 of 14 Downloaded on : Fri Jun 10 21:02:06 IST 2022 C/SA/106/1989 CAV JUDGMENT DATED: 09/06/2022 the defendant, the plaintiff ought to have claimed relief in Rent Suit No.229/1975 or in R.C.S. No.1074/1979, but he could not have filed the present suit. It is also contended by the defendant that the suit is barred by principles of res-judicata. The defendant has denied the right of the plaintiff regarding the Easementary Right by way of prescription or by way of necessity.
4.1 On the basis of the pleadings of the parties the trial Court has framed following issues at Exh. 18;
1. Whether plaintiff proves that he is the owner of the house mentioned in para 1 of the plaint?
2. Whether plaintiff proves that he is the owner of Chowk admeasuring about 11 X 8 ft. situated on the western side of the property?
3. Whether plaintiff proves that he has got a right of easement of passage on the open land, admeasuring about 10 X 10 ft. situated on the front side of defendant's property?
4. Whether defendant proves that the suit land belonged to him and that he is the owner of the same?
5. What order and decree?
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5. On the basis of the evidence on record and the submissions made on behalf of both the sides, the learned Trial Court has decided the issue Nos. 1,2 and 4 in affirmative and issue No.3 in negative and has ultimately dismissed the suit holding that there is no Easementary Right by way of prescription or by way of necessity exists in favour of the plaintiff.
6. Being aggrieved with the judgment and decree of the learned Trial Court, the plaintiff has preferred the Regular Civil Appeal No.353 of 1984 before the District Court, Vadodara. The learned Second Joint District Judge, Vadodara, was pleased to allow the appeal confirming the view of the Trial Court that there is no Easementary Right by way of prescription or by way of necessity exists in favour of the plaintiff. But at the same time, the appeal was allowed observing that there is a natural right available to the plaintiff for enjoyment of his property. This decision of the First Appellate Court has been challenged by the defendant by filing the present appeal and has raised several questions of law.
7. It appears from the record that the appeal came to be admitted, but no substantial question of law could be found from records. Therefore, at the time of final hearing of this appeal, the appeal has been heard on the following substantial question of law:
Page 6 of 14 Downloaded on : Fri Jun 10 21:02:06 IST 2022C/SA/106/1989 CAV JUDGMENT DATED: 09/06/2022 Question:- In the facts and circumstances of the case, whether the First Appellate Court has committed error of law in decreeing the suit of the plaintiff on a new ground of easement of natural right, when the plaintiff has failed to prove his easementary right by way of prescription and/or by way of necessity?
8. Heard learned advocate Mr. Jitendra M. Patel, for the appellant-original defendant and learned advocate Mr. Jigar G. Gadhavi, for the respondents-original plaintiff at length. Perused the material placed on record and the record and proceedings of the Trial Court.
9. My findings on the aforesaid question of law, for the reasons given below, is as under:
(1) In affirmative;
:REASONS:
10. The learned advocate Mr. Jitendra M. Patel, for the appellant-original defendant has vehemently submitted that though the Appellate Court has concurred with the finding of facts of the Trial Court that the plaintiff has failed to prove that he has any easementary rights either by way of prescription or by way of necessity, has committed error of law in making out a new case for the plaintiff on a new right of easement by natural right. He Page 7 of 14 Downloaded on : Fri Jun 10 21:02:06 IST 2022 C/SA/106/1989 CAV JUDGMENT DATED: 09/06/2022 has also submitted that there was no pleadings by the plaintiff in respect of such natural right for enjoyment of his property. He has submitted that the Appellate Court has also failed to consider the facts that there was a litigation filed in past, wherein, injunction was issued against the plaintiff relating to the same property and therefore, the subsequent suit filed by the plaintiff would be barred by principles of res-judicata.
10.1 He has also submitted that as per the evidence on record, the point of easementary right by way of prescription is also not proved nor the easement of necessity is proved. He has submitted that the First Appellate Court has not properly considered the Court Commissioner's report and the maps produced in the matter at Exh.44, 49 and 50. He has also submitted that from the maps produced in the matter, it clearly reveals that there is an alternative way available to the plaintiff. He has submitted that the suit has been filed by the plaintiff only to harass the defendant as there was a previous decree passed against the present plaintiff in a suit filed by the defendant herein. He has prayed to allow the present appeal and quash and set aside the impugned order of the First Appellate Court and to restore the judgment and decree passed by the learned Trial Court.
11. Per contra, learned advocate Mr. Jigar G. Gadhavi, for the respondents-original plaintiff has supported the Page 8 of 14 Downloaded on : Fri Jun 10 21:02:06 IST 2022 C/SA/106/1989 CAV JUDGMENT DATED: 09/06/2022 impugned judgment of the First Appellate Court and submitted that there is no other right of way available to the plaintiff to approach the public road situated near the "Ghanchi Gor Khadki". He has submitted that the Trial Court has not considered the evidence on record and the First Appellate Court has properly considered the same and has passed proper decree in favour of the plaintiff. He has submitted that there is no question of law involved in this matter and the impugned order of the First Appellate Court is sustainable in the eyes of law and therefore, this Court may not interfere with the judgment and decree passed by the First Appellate Court. He has prayed to dismiss the present appeal by confirming the judgment and decree passed by the First Appellate Court.
12. Having considered the submissions made on behalf of both the sides coupled with the material placed on record, it appears that there is no dispute regarding the ownership of the respective house by respective parties. It is admitted fact that earlier the plaintiff was tenant in the suit premises against whom decree has been passed in a suit filed by the defendant and that decree has been confirmed upto the second appeal. There is a concurrent finding of facts by the Trial Court as well as by the First Appellate Court that there is no Easementary Rights by way of prescription and/or by way of necessity existed in favour of the plaintiff. The First Appellate Court has confirmed the observation of the Trial Court that there is no Easementary Right of whatsoever in nature by way of Page 9 of 14 Downloaded on : Fri Jun 10 21:02:06 IST 2022 C/SA/106/1989 CAV JUDGMENT DATED: 09/06/2022 prescription and/or by way of necessity existed in favour of the plaintiff.
13. The learned Trial Court while dealing with the aspects of Easementary Rights as claimed by the plaintiff by two different modes, one by prescription and the second by easement of necessity, has dealt with the provisions of the Indian Easements Act, 1882, especially Section 13 and 15 of the Act in its judgment and has held that both these easementary rights namely by prescription and by necessity cannot co-exist simultaneously at the same time. This observation by the learned Trial Court has not been disturbed by the First Appellate Court. However, the First Appellate Court has passed the decree in favour of the plaintiff on the ground that there is a natural right of way available to the plaintiff due to he being the neighbour of the defendant. It also appears from the impugned judgment of the First Appellate Court that for these observations, it has relied upon some decision, without giving any name or citation thereof and merely upon memory. However, so far as, the Indian Easements Act is concerned, there is no such provisions regarding any other easementary right as called by the First Appellate Court as a natural right.
14. It is also pertinent to note that in the pleadings, the plaintiff has not claimed any such right pertinent to his property. He has claimed right of easement over the property of the defendant. Admittedly, when a person Page 10 of 14 Downloaded on : Fri Jun 10 21:02:06 IST 2022 C/SA/106/1989 CAV JUDGMENT DATED: 09/06/2022 claims Easementary Right over other property, definitely it would be upon the property of ownership of other person. Thus, when the plaintiff was claiming right of easement either by way of prescription or by way of necessity, he has to admit the facts that the land upon which he is claiming such easementary right is of the ownership of the defendant. Of course, the plaintiff has admitted these facts in his pleadings that the open land in front of the defendant is of the ownership of the defendant. Thus, it falls incumbent on the part of the plaintiff to prove that there is an easementary right by way of prescription or by way of necessity. However, as observed by both the Courts below, the plaintiff has failed to prove these facts of right of easement by way of prescription or by way of necessity.
15. It is pertinent to note that the prescriptive easement is created by adverse user, by the hostile use to the title of servient owner, whereas easement of necessity is based upon the grant either express or implied.
16. It also appears from the observation of the Trial Court judgment that there is a public way available on the Western part of House No.101/2. This observation has been made by the Trial Court on the basis of the maps, at Exh.44, 49 and 50. It also reveals from the evidence that one part of the suit House No.101/2, is purchased by the plaintiff and rest of the part of the said house is Page 11 of 14 Downloaded on : Fri Jun 10 21:02:06 IST 2022 C/SA/106/1989 CAV JUDGMENT DATED: 09/06/2022 purchased in the name of the plaintiff's wife. It also reveals from the record that in the earlier suit R.C.S. No.1719/1968, which was filed by the defendant- appellant, the stand taken by the present plaintiff was to the effect that the property is his own property. Thus, when in earlier round of litigation he has claimed the properties of his own ownership, there cannot be any Easementary Right available to himself against his own property.
17. Now, considering the material placed on record and the maps produced, it appears that the plaintiff has other alternative way available from the open land going towards South. Now the plaintiff wants to approach the public road by utilizing the open land of the defendant and then to some other small street and then towards Ghanchi Cross Khadki from the North side. As per the map, the open land available to the plot of the plaintiff i.e. "Chowk" is lying between the two properties of the plaintiff himself, one is purchased in his own name and another purchased in the name of his wife, from that Chowk one way is going towards the South. It also reveals from the map that there is also a way available from the property purchased in the name of the plaintiff's wife going towards Kansara Pol. Thus, the plaintiff can utilize both these alternative ways for approaching his house.
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18. Now, considering the facts and circumstances of the case, it is clearly found that when the First Appellate Court has concurred with the finding of facts that plaintiff has failed to prove the factum of his Easementary Right by way of prescription or by way of necessity, the Appellate Court cannot make out a new case of natural right in favour of the plaintiff. When there was no such pleadings, the Court cannot grant any relief to any party to the litigation. The approach of the First Appellate Court is clearly not sustainable in the eyes of law. The reliance on a decision without any name or citation number and merely on the basis of memory is also not proper on the part of the learned Second Joint District Judge. The judgment of the Court has to be based only upon the facts proved and if there is any precedent applicable in the given facts, then, the particular precedent has to be referred by name as well as where such a decision is reported. A Judge cannot pass any order or make any observation merely on his own memory without referring name of the parties or numbers of proceedings and where such decision is reported. The First Appellate Court Judge has committed serious error of facts and law in creating a new case in favour of the plaintiff of natural rights. Therefore, in the facts and circumstances of this case, I have, decided the question of law as framed hereinabove in affirmative.
19. In view of the above discussion, I pass the following Page 13 of 14 Downloaded on : Fri Jun 10 21:02:06 IST 2022 C/SA/106/1989 CAV JUDGMENT DATED: 09/06/2022 final order in the interest of justice:-
:ORDER:
(1) The present Second Appeal is hereby allowed.
(2) The impugned judgment and decree dated 12.08.1988 passed by the learned Second Joint District Judge, Vadodara, in Regular Civil Appeal No.353/1984, are hereby quashed and set aside. The judgment and decree passed by the learned Trial Court in Regular Civil Suit No.1377/1982 dated 28.11.1984 are hereby restored.
(3) Considering the facts and circumstances of the case, the parties are directed to bear their respective cost of this appeal. Decree to be drawn in the Second Appeal accordingly.
(4) Along with the copy of this judgment and decree, record and proceedings be sent back to the learned Trial Court.
20. In view of the order passed in the main matter, Civil Application No.1 of 1989, does not survive and the same stands disposed of accordingly.
Sd/-
(DR. A. P. THAKER, J) SLOCK BAROT Page 14 of 14 Downloaded on : Fri Jun 10 21:02:06 IST 2022