Madhya Pradesh High Court
Ramcharan And Ors. vs Ram Asrey on 9 October, 2007
Equivalent citations: AIR2008MP105, 2008(1)MPHT293, AIR 2008 MADHYA PRADESH 105, 2008 (2) ALL LJ NOC 512, 2008 (3) ABR (NOC) 399 (MP), 2008 (2) AJHAR (NOC) 411 (MP), 2008 (3) AKAR (NOC) 393 (MP), 2008 AIHC NOC 325, (2008) 1 MPHT 293, (2008) 3 MPLJ 189
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. This second appeal has been filed by the defendants feeling aggrieved by the judgment and decree dated 30th June, 1993 passed by learned District Judge, Chhatarpur in Civil Appeal No. 1-A/93, whereby the suit of plaintiff has been decreed.
2. In brief the suit of plaintiff/respondent is that he is the owner of house No. 50 situated in Village Bamhori, Tehsil Loundi and is also possessing the same. The four boundaries of the said house have been mentioned in the map attached to the plaint. Earlier this house was owned and possessed by plaintiff's father. In the said house there is a door facing on the southern side. Later on, there was a partition in the family of plaintiff and the said house has fallen in his share. The door of the said house opens on the southern side and the open land attached to the said door is being used by plaintiff peaceably in his easementary right as way to go to his house. Except the said land (servient heritage) there is no alternative way available to the plaintiff to go to his house (dominant heritage). On the southern side of the house of plaintiff, land bearing Khasra No. 38 is of defendants and the distance in between plaintiff's house and Khasra No. 38 is 50 feets. The plaintiff uses 29' x 19' land of defendants (servient heritage) as way to go to his house (dominant heritage) for last 40 years. This land (servient heritage) has been shown as Aa, Ba, Sa and Da in the plaint map. It has also been pleaded by the plaintiff that the defendants are trying to instal fencing by planting bushes (Ban) on the servient heritage and are also trying to possess the same. The plaintiff opposed and objected the said action of the defendants on the pretext that on account of the said fencing his way and approach to his house will be closed, but the defendants did not agree and are trying to take possession of the servient heritage. It has also been pleaded by the plaintiff that on the said Aa, Ba, Sa and Da land which is on the southern side of his house, he planted trees of lemon, Babool and Chilla. The plaintiff has thus filed a suit for injunction on the basis of the easementary right praying that the defendants be restrained from interfering with the plaintiffs right of easement on the servient heritage and further they be restrained from possessing the servient heritage (suit property).
3. The defendants, who are 3 in number, filed a joint written statement and pleaded therein that the dominant heritage is neither of plaintiff nor of his father. The said house was never in possession of plaintiff or his family members. The servient heritage has not been ever used by the plaintiff or his father as way. However, they have admitted that they are the Bhumiswami of Khasra No. 38 but denied the factum of distance of 50' of the house of plaintiff (dominant heritage) and Survey No. 38. It is further denied in the written statement that servient heritage was never used by plaintiff as his way nor he carried his cattle from the servient heritage. The land was never used either by plaintiff or his family members as way, therefore, the question of acquiring easementary right does not arise. The disputed property is owned and possessed by the defendants and they have planted the trees on it. It is incorrect to say that plaintiff has planted those trees.
4. In the special plea, it has been pleaded by the defendants that on the northern side of Khasra No. 38 there is land bearing Khasra No. 36 and on this land neither plaintiff nor his father is having any right, title or interest. The said land (Khasra No. 36) is being owned and possessed by Govind Das and Devidayal. The entire Survey No. 38 is being cultivated by the defendants. The house, which the plaintiff is saying of his own, is of one Shobharam Pathak and on the southern side of the said house the land Khasra No. 38 of defendants is situated. According to defendants, the plaintiff is residing in house No. 47. Except house No. 47, he is not having any other house of his own. The suit of plaintiff is also time barred. On these premised pleadings it has been prayed by the defendants that the suit of plaintiff be dismissed.
5. Learned Trial Court on the basis of averments made in the plaint and their denial in the written statement framed as many as 6 issues which are mentioned in Para 5 of its judgment. Thereafter parties to the suit examined their witnesses. The learned Trial Court did not find that plaintiff is having any easementary right and eventually dismissed the suit.
6. The plaintiff assailed the judgment and decree of learned Trial Court by filing first appeal before the learned First Appellate Court which has been allowed and his suit has been decreed by the impugned judgment and decree.
7. In this manner this second appeal has been filed by the defendants challenging the judgment and decree of learned First Appellate Court.
8. This Court on 28-10-1993 admitted the appeal on the following substantial question of law:
Whether the Lower Appellate Court was right in reversing the judgment and decree of the Trial Court and in coming to a conclusion that the respondent-plaintiff was successful in proving his easementary right of passage over the suit land?
9. In this appeal earlier Shri Ram Kishore Pandey and Shri Anil Kumar Pandey, Advocates were appearing for the respondent/plaintiff. It was informed to this Court that Shri Ram Kishore Pandey, Advocate has been heavenly abode and Shri Anil Kumar Pandey, Advocate has been shifted to State of Chhattisgarh. In this view of the matter, this Court on 12-7-2007 directed to issue SPC to respondent/plaintiff. However, despite SPC was sent to the respondent/plaintiff, he did not appear and, therefore, this appeal was heard in his absence.
10. It has been contended by Shri M.L. Jaiswal, learned Senior Counsel appearing for the appellants that beneficial enjoyment of the dominant heritage has not been proved. It is also not proved that the servient heritage is being used peaceably as an easement without interruption for last 20 years in the knowledge of the servient owner and if that is the position, the learned First Appellate Court erred in substantial error of law in decreeing the suit of plaintiff which is based on easementary right.
11. By inviting my attention to the averments made in Para 3 of the plaint as well as Para 13 of the testimony of plaintiff Ram Asrey (P.W. 1), it has been argued by learned Senior Counsel that since plaintiff himself has admitted in Para 13 of his deposition that he was not residing in house No. 50 and earlier to 15-16 years he was residing in another house and now only he has come to reside in the dominant heritage which is on the southern side of house No. 50. Therefore, if this important piece of evidence of plaintiff is read conjointly with Section 15 of the Indian Easements Act, 1882 (for brevity 'the Act'), it can safely be said that there is no acquisition of easement by prescription because the plaintiff himself has admitted that he is residing in the southern side of house No. 50 for last 15-16 years only. Thus, according to learned Senior Counsel, learned First Appellate erred in substantial error of law in decreeing the suit of plaintiff which is based on easementary right.
12. Having heard learned Senior Counsel for the appellants and after perusal of the record and also the findings of the two Courts below, I am of the view that this appeal deserves to be dismissed.
13. Regarding substantial question of law:
On going through the averments made in Paras 2 and 3 of the plaint it is gathered that plaintiff is having house No. 50. Earlier this house was owned and possessed by his father and on the southern side of this house there is a door in front of which disputed land (servient heritage) is there which is being used by plaintiff as way openly and peaceably in his easementary right for last 30 years. It has been further pleaded by the plaintiff that after the partition between his father and his brothers, southern side of house No. 50 fell in his share and he is having only disputed land which is being used by him as way to approach his house for last more than 20 years openly. In Para 3 of the plaint it has been specifically pleaded by the plaintiff that the house was constructed 40 years earlier to the date of filing of the suit and from very beginning there is a door on the southern side of the house and the plaintiff and his family members are using this door for their access and to the access of the cattle. In front of the southern door there is a way of 39' long and 19' width and this land is of defendants. However, this land is being used by plaintiff as way to approach his house and it is shown as Aa, Ba, Sa and Da in the plaint map and the plaintiff is having easementary right of way on this land.
14. The term "Easement" has been defined in Section 4 of the Act. Indeed 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. The terms Dominant Heritage and Servient Heritage have also been defined in this section, according to which the land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof is the dominant owner. The land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof is the servient owner.
15. Under Section 15 of the Act, by prescription a right of easement of way can be acquired provided following conditions are fulfilled:
(i) the right to access has been peaceably enjoyed;
(ii) openly;
(iii) as an easement;
(iv) as of right;
(v) without interruption; and
(vi) for last 20 years.
16. Section 19 of the Act speaks about passing of easement on account of transfer of dominant heritage. Under this section if dominant heritage is transferred or devolves, by act of parties or by operation of law, the transfer of devolution shall, unless a contrary intention appears, be deemed to pass the easement to the person in whose favour the transfer or devolution takes places. The illustration to this section makes the provision more clear.
17. The purpose of elucidating the law as contemplated under Sections 4, 15 and 19 of the Act is that whether in the given case in hand, the plaintiff is having easementary right; whether he has acquired right of way by acquisition and whether the said right of way has been conferred on him on account of partition of house No. 50 in which he was given southern portion of the said house, having only one door on the southern side attached to the servient heritage.
18. There cannot be any doubt that easement is a right and the same is not a mercy. If plaintiff is having easementary right, certainly he can establish it and exercise that right by filing suit if defendant obstruct him to exercise the said right. If the easementary right is in respect of way on the servient heritage to approach dominant heritage, plaintiff is bound to prove his case on the above said tests in order to bring his case under Section 15 of the Act. In the present case, there is specific pleading of plaintiff in Para 2 of the plaint that there is house No. 50 which was built 40 years earlier to the date of filing of the suit (suit was filed on 4-10-1978). Earlier his father was residing in the said house and the door on the southern side was being used by the father of plaintiff and his family members (including the plaintiff). In the partition, southern portion of house No. 50 fell in the share of plaintiff in which there is only one door to enter in the house which is on the southern side. In front of this door on the southern side servient heritage is there on which plaintiff is claiming his right of way.
19. In Para 3 of the plaint there is specific pleading of plaintiff that the disputed property shown in plaint map as Aa, Ba, Sa and Da is the servient heritage which is being used by the plaintiff as way peaceably, openly as an easement for last more than 20 years and except this way there is no other alternative way available to the plaintiff to approach the dominant heritage. On bare perusal of the map attached to the plaint, it is gathered that except the door marked as "G" in the map there is no other door of the house of plaintiff (dominant heritage) and in front of southern side of the door "G" there is servient heritage which is being used by plaintiff as way.
20. Plaintiff Ram Asrey has been examined as P.W. 1. In his testimony he has specifically stated that house No. 50 was of his father and on the southern side of this house there is a door which opens on the servient heritage. Except this door there is no other door to enter in this house. The disputed land which is of defendants and which is servient heritage is 19' wide and 13' long. The disputed land was being used earlier by the father of the plaintiff as way. In the house earlier grass, fodder, wood, etc. , were being kept and cattle were being tied. The disputed land was being used as way by the father of the plaintiff and from the disputed land bullock-cart and cattle were also being carried to the house. Specifically it has been stated by the plaintiff that the disputed property is being used as way by the plaintiffs father and after him by the plaintiff for last 40-50 years. He has further stated that the disputed land is of defendants.
21. Much emphasis has been putforth by learned Senior Counsel on Para 13 of the testimony of plaintiff Ram Asrey (P.W. 1) in which he has stated that 15-16 years earlier they were residing in some other house. But, to me, this would not mean that the house (dominant heritage) was not being used either by plaintiff or by his father and if said house was being used by the plaintiff and his father, irrespective of the fact whether they were living or not in it, since the disputed property was being used as a way to approach the said house, it would mean that plaintiff was having easementary right of way on the disputed land which is servient heritage. On conjoint reading of Sections 4 and 15 of the Act it would reveal that it is not necessary that a person should live in the dominant heritage. What Sections 4 and 15 say is that right of casement should be for the beneficial enjoyment of the dominant heritage and if the right of way is exercised peaceably as an easement without interruption and for 20 years, merely because the dominant heritage was being used other than residential purpose would not forfeit the right of easement or it cannot be said that plaintiff had not acquired right of prescription of easement of the way on the servient heritage. Under Section 15 of the Act nowhere it has been enacted that if the dominant heritage is used for the residential purpose, then only such right of way would accrue. Under this section word "building" has been used and if that is the position, I am of the view that word "building" is having a broader spectrum. Similarly under Section 4 of the Act, for the beneficial enjoyment of the land an easementary right can be claimed. The expression "land" has been explained in the explanation to Section 4, according to which "land" would also include things permanently attached to the earth. Thus a house would also come under the purview of Section 4 of the said Act.
22. It has also come in the testimony of plaintiff Ram Asrey that the southern portion of house No. 50 fell in his share on partition. On going through plaint map it is luminously clear that there is only one door on the southern side which is shown at place "G" in the map and in front of this door, disputed property (servient heritage) is there.
23. The disputed portion is being used as servient heritage by the plaintiff has also been admitted by the defendants' own witness Mukundi (D.W. 2) who has categorically stated in Para 2 of his cross-examination that the disputed property is being used as way by the plaintiff so as to reach his house and this way is being used by the plaintiff for last 30-40 years. Thus from the evidence of defendants' witness also it is proved that the disputed property is being used as servient heritage by the plaintiff for last more than 20 years as way.
24. Learned First Appellate Court in Para 7 onwards of its judgment after marshalling the evidence has given specific finding in Para 12 that the disputed property is being used by the plaintiff as way in the knowledge of defendants openly and peaceably for a period of more than 20 years. This being a pure finding of fact cannot be interfered with in second appeal. It is well settled in law that the finding of fact, however, gross and erroneous it may be cannot be interfered with in second appeal. See V. Ramachandra Ayyar and Anr. v. Ramalingam Chettiar and Anr. .
25. Much has been argued by learned Senior Counsel appearing for the appellants that the house (dominant heritage) which is being claimed by the plaintiff of his own is indeed of some other persons, namely, Govind Das and Rameshwar and in this regard the evidence of some witnesses has been read over to me. Learned Senior Counsel has also invited my attention to Exh. P-3, which is a copy of Khasra Panchshala, wherein the said property has been shown to be of Rameshwar Govind Das and thus it has been argued that since the plaintiff is not the owner of the dominant heritage, therefore, he has no right to use the servient heritage as way. The said argument cannot be accepted for dual reasons; firstly, under Sections 4 and 15 of the Act, it is not necessary that a person should be the owner of the dominant heritage since under Section 4 the words not only "owner", but, "or occupier" have been used which would mean that any person who is occupying the dominant heritage would have easementary right. The second reason is that in Column No. 12 of Exh. P-3" it has been specifically mentioned that the house of Rajaram, son of Natthu Lohar is there. It is not in dispute that Rajaram is the real brother of plaintiff. Thus Exh. P-3 is not against the plaintiff.
26. The term "easement" has been magnified in Corpus Juris Secundum, Vol. 28-A 1996 Edition at Page 166, which reads as under:
An easement is a liberty, privilege, or advantage without profit, which the owner of one parcel of land may have in the lands of another. As stated from the opposite point of view, it is a service which one estate owes to another, or a right or privilege in one man's estate for the advantage or convenience of the owner of another estate. Also, an easement exists where the land of one person is subjected to some use or burden for the benefit of the lands of another person.
Generally, an easement is a right that one has to use another's land for a specific purpose that is not inconsistent with the other's ownership interest; it is a permanent interest in another's land.
Furthermore, an easement or a servitude has been defined as a right which one proprietor has to some profit, benefit, or beneficial use, out of, in, or over the estate of another proprietor, but this definition seems to be too broad as applied to pure easements from which some cases exclude the suggestion of profit.
27. An easement by prescription is founded on the supposition of a grant, or on the presumption that the right has been granted, but that the grant has been lost; and generally it may be acquired by uninterrupted use and enjoyment over time."
(See 1996 Edition of Corpus Juris Secundum Vol. 28-A, Page 192)
28. "The use and enjoyment necessary to create an easement by prescription is substantially the same in quality and characteristics as the adverse possession which will give title to real estate."
(See 1996 Edition of Corpus Juris Secundum Vol. 28-A, Page 199)
29. In Halsbury's Laws of England also the characteristics of easement have been given, according to which the essential characteristics of an easement are:
(i) there must be a dominant and a servient tenement;
(ii) the easement must accommodate the dominant tenement;
(iii) the dominant and servient owners must be different persons; and
(iv) the easement must be capable of forming the subject matter of a grant.
(See Halsbury's Laws of England Fourth Edition Vol. 14, Page 5)
30. In order to answer substantial question of law effectively, I have also gone through the written statement and I find that there is pleading of defendants in Para 3 of the written statement that on the western side of the house there is a door, but, on going through the plaint map nowhere such door is found. Even otherwise no argument has been advanced by learned Senior Counsel for the appellant in this regard. The substantial question of law on which the appeal was admitted is thus answered in affirmative.
31. Ab judicatio, this appeal is found to be bereft of any substance and the same is hereby dismissed. The judgment and decree passed by learned First Appellate Court is hereby affirmed. Since none has appeared on behalf of respondent/plaintiff to oppose this appeal, therefore, the parties are hereby directed to bear their own costs of this appeal.