Calcutta High Court
Santosh Kumar Dey And Anr. vs Jayanti Sanyal on 5 August, 2005
Equivalent citations: 2005(4)CHN431
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
JUDGMENT Jyotirmay Bhattacharya, J.
1. This second appeal is directed against the judgment and decree dated 9th June, 1992 passed by the learned Assistant District Judge 1st Court at Howrah in Title Appeal No. 41 of 1991 affirming the judgment and decree dated 21st December, 1990 passed by the learned Munsif, 2nd Court at Howrah in Title Suit No. 220 of 1986.
2. The defendants in a suit for declaration and injunction are the appellants before this Court.
3. The plaintiff/respondet filed a suit for declaration of her absolute right of easement by way of grant over the 'B' Schedule passage and for permanent injunction for restraining the defendants, their men and agents from invading upon and/or interfering with the smooth user and enjoyment of the "B' Schedule property. Thus, the subject-matter of the suit is the passage measuring about 41'6" X 6' over which the plaintiff is claiming her right of easement by way of grant.
4. Admittedly one Nandadulal Dutta was the owner of 7 cottah of land at premises No. 51/1, Kalabagan Lane, Santragachi, P.S. Shibpur. Nandadulal sold 3 cottah 6 chatak of land to Lalit Mohan Dey. The remaining part of the said holding was sold by Nandadulal to Santosh Kumar Dey. Santosh Kumar Dey and Lalit Mohan Dey were the two brothers. Santosh purchased the front portion abutting Kalabagan Lane. Lalit purchased the back portion of the said holding. Both of them purchased their respective demarcated portions from Nandadulal together with their right of easements over the common passage lying on the northern side of their respective holdings.
5. Subsequently, for convenient user of the back portion which was purchased by Lalit, an agreement was entered into between the two brothers on 26th July, 1951 vide Ext. A, whereby right of ingress and egress was given to Lalit by Santosh through a strip of land measuring about 41'6" in length from west to east X6' wide from north to south.
6. The said strip of land is the disputed passage being the 'B' Schedule property which is lying on the extreme southern portion of the land of Santosh. Thus, Lalit had two accesses to his holding, i.e., one through the common passage lying on the norther side and the other on the south-west side of the Lalit's holding.
7. After the death of Lalit, the property which was purchased by Lalit was inherited by his widow Jayabati. Thus, Jayabati became the owner of Lalit's property which was numbered as 51/1/1, Kalabagan Lane. The said property was subsequently divided into three parts. The northern part was sold to one Mr. Ghosal. The said part was numbered as 51/1/2 Kalabagan Lane. The said Ghosal is in no way connected and/or involved in the pending Us.
8. The middle part of the holding together with right of easement over the passage on the northern side of the said land was sold and transferred by Jayabati to the plaintiff by a registered deed dated 10th March, 1985 vide Ext. I. The title deed of the respondent being Ext. I shows that the middle part of the said holding is extended upto the northern side common passage through a strip of land measuring about 21' (south to north) X 5' wide (cast to west) which is an exclusive part and parcel of the middle part of the said holding being a part of 51/1/1 Kalabagan Lane.
9. The rest part of the said holding together with the right of easement over 6' wide disputed passage being the 'B' Schedule property was gifted by the said Jayabati in favour of the defendant/appellant No. 2 by a registered deed of gift dated 14th October, 1985 vide Ext.H.
10. The dispute in this suit is with regard to the right of passage over the said strip of land being the 'B' Schedule property.
11. The plaintiff/respondent claims that the easement right which was created by way of grant in favour of Lalit, has not been revoked and as such the plaintiff being the transferee of a portion of the land from the widow of Lalit has acquired right of easement over the said strip of land being the 'B' Schedule property. According to the plaintiff, since easement by grant, runs with the land such easement right cannot be transferred by her vendor exclusively in favour of the defendant/appellant No. 2. The plaintiff further claims that the plaintiff acquired easement right over the 'B' Schedule property, which cannot be transferred by her vendor alone by a subsequent deed of gift in favour of defendant No. 2. In short, the plaintiff claims right of joint user of the easement right over the said 'B' Schedule property along with the defendant No. 2.
12. The defendants/appellants contested the suit by filing independent written statements wherein both of them claimed that since the right of easement was not granted in favour of the plaintiff by her vendor while transferring the 'A' Schedule property in favour of the plaintiff, the plaintiff cannot claim any right of easement over the 'B' Schedule property.
13. Thus, the entire dispute centres round as to whether the plaintiff has acquired any right of easement over the 'B' Schedule property even though such right was not conveyed to the plaintiff by the registered deed being Ext. I.
14. Both the Courts below concurrently held that the right of easement which was created by the grant in favour of Lalit vide Ext.A having not been revoked, the benefits of such grant can be enjoyed by the plaintiff being the transferee of the land through the heir of the owner thereof who is the beneficiary of such grant.
15. The property of such judgment and decree of the Appellate Court is under challenge in this appeal.
16. At the time of admission of this appeal, no substantial question of law was formulated by this Court. However, in course of hearing of this appeal, the following substantial questions of law were formulated by this Court:
"(i) Provisions of Easements Act not being applicable to West Bengal, whether any right under the said Act can be made available to plaintiff/ respondent?
(ii) Whether Jayabati made implied grant to use a passage leading to the passage described in Schedule 'B' of the plaint through the property of the defendant/appellant No. 2, since gifted to him by Jayabati?
(iii) Whether even after arriving at a finding by the Court below that user of disputed passage described in Schedule 'B' of the plaint is not easement of absolute necessity, can the Court below declare easement right over 'B' Schedule property?"
17. Let me consider the merit of this appeal with reference to the aforesaid substantial questions of law.
18. Heard the learned Advocate of both the parties. Considered the materials on record.
19. Admittedly, the holding of the plaintiff being part of premises No. 51/1/1 has no direct access to the common passage being the 'B' Schedule property. The 'B' Schedule property and the holding of the plaintiff is admittedly intervened by the property of the defendant/appellant No. 2. Thus, in order to reach the 'B' Schedule property, the plaintiff/respondent is required to pass through a part of the intervening holding belonging to the defendant/appellant No. 2. Thus, even if this Court holds that the plaintiff has acquired a right of easement over the 'B' Schedule property, still then such right cannot be enjoyed by the plaintiff, as the plaintiff has no access to the said passage either through her own land or otherwise.
20. Mr. Roy, learned advocate, appearing for the plaintiff/respondent, submitted that though the Indian Easements Act, 1882 is not applicable in West Bengal but still then the principles analogous thereto are applicable in West Bengal. By referring to section 19 of the said Act, Mr. Roy submitted that when the dominant heritage is transferred or devolves, by act of parties or by operation of law, the transfer or devolution shall, unless a contrary intention appears, be deemed to pass the easement tot he person in whose favour the transfer or devolution takes place.
21. By referring to the deed of transfer being Ext. l, Mr. Roy submitted that the intention to exclude the right of user over the 'B' Schedule property by the plaintiff, is not apparent from the said deed. If that be so, then it cannot be held that simply because the right of user of the said 'B' Schedule property was not conferred upon the plaintiff by the said deed, the right of easement cannot be enjoyed by the plaintiff in whose favour a part of the said property was transferred by the heir of Lalit.
22. Mr. Roy further submitted that Section 8 of the Transfer of Property Act also provides that unless a different intention is expressed or is necessarily implied, all the interests which the transferor is then capable of passing in the property and the legal incidents thereof are transferred in favour of the transferee along with the transfer of property forthwith and that such incidents include, where the property, is land or house, the casements annexed thereto.
23. Thus, Mr. Roy submitted that even if the provisions of the Indian Easements Act is not applicable, still then in view of Section 8 of the Transfer of Property Act, the plaintiff has acquired right of easement over the 'B' Schedule property by virtue of purchase of the 'A' Schedule property from the heir of Lalit.
24. Mr. Banerjee, learned Senior Advocate, appearing for the appellants, submitted that the intention of the vendor must be gathered from the deed of transfer as a whole. If the entire deed is read, then it will be apparent that the intention of the vendor was to exclude the plaintiff/respondent from using the passage being the 'B' Schedule property. The grant of right of user of the passage on the northern side of the suit property shows that the intention of the vendor was very clear. Mr. Banerjee further submitted that the vendor with an intention to exclude the right of user of the passage through the 'B' Schedule property, conveyed the said land together with the right of passage through common passage of the northern side. Similarly, while transferring the portion of the holding by way of gift to the defendant No. 2, no right of passage was given to the defendant No. 2 through the northern side common passage.
25. Mr. Banerjee further submitted that realising the practical difficulty in exercising the said right of easement over the 'B' Schedule property which has no direct link and /or connection with the property of the plaintiff, the plaintiff filed an application for amendment of her plaint for introducing her right of access to the said common passage through the intervening holding belonging to the defendant/appellant No. 2. According to Mr. Banerje, such amendment having been refused, the right of easement of the plaintiff over the 'B' Schedule property, as prayed for can either be declared nor any injunction can be passed against the defendants/appellants.
26. Let me now consider the submissions of the learned Advocates of the respective parties.
27. Admittedly, the plaintiff has not purchased the entire interest of Lalit in the said holding. The plaintiff only purchased a portion of the holding of Lalit through her successor-in-interest who retained the rest of the land together with the right of passage over the 'B' Schedule property with her. Subsequently, the said widow of Lalit transferred the remaining part of the land of the said holding together with the right of passage over the 'B' Schedule property by way of gift in favour of the defendant No. 2. It is true that in view of section 19 of the Indian Easements Act read with section 8 of the Transfer of Property Act, an easement being an appurtenance to the dominant tenement, passes with the property, and it cannot be destroyed or extinguished by the casual omission of a draftsman While drawing up a conveyance deed. As such, when a severance of the dominant tenement takes place, all its easements which are attached to the tenement, and not to the person of the owner, will attach to the severed portions.
28. Thus, the right of easement which was enjoyed by Lalit and/or his heir pursuant to the grant by the agreement being Ext.A can be enjoyed by the plaintiff as the said right of easement passes to the plaintiff with the property which he purchased from the heir of Lalit.
29. But the only question which is still to be ascertained is as to how such right will be exercised by the plaintiff when the plaintiffs property is not linked with the said 'B' Schedule property and the plaintiff cannot approach the said 'B' Schedule property save and except through the land of the defendant/ appellant No. 2 over which the plaintiff does not claim any right, title and interest-30. The plaintiffs prayer for amendment for incorporating her right to pass through the intervening holding belonging to the defendant/appellant No. 2 for approaching the 'B' Schedule property having been rejected by the learned Trial Judge and the said order having not been challenged in appeal by the plaintiff, the plaintiffs right to pass through the intervening plot of land belonging to the defendant/appellant No. 2 for approaching the 'B' Schedule property, cannot be 'declared in this appeal.
31. Before drawing the conclusion over the dispute regarding acquisition of right over the 'B' Schedule property by the plaintiff, the intention of the common vendor is to be considered as a whole. If both the deeds of transfer through which the interest of the widow of Lalit was transferred to the plaintiff and the defendant No. 2, are considered carefully, then there cannot be any shadow of doubt that the user of the 'B' Schedule passage was not given to the plaintiff; similarly, the right of user of the passage through the northern side common passage was not given to the defendant No. 2.
32. That apart, even assuming that the plaintiff has right of easement over the said 'B' Schedule property, but still then such easement right cannot be enjoyed by the plaintiff, as the right of the plaintiff to exercise, such right of easement over the 'B' Schedule property without approaching through the intervening holding exclusively held by the defendant/appellant No. 2, is totally impossible.
33. In the facts and circumstances as stated above, this Court holds that the right of user of the 'B' Schedule passage by the plaintiff was impliedly excluded by her vendor while transferring the 'A' Schedule property to the plaintiff by Ext. I.
34. Accordingly, the reliefs which were granted to the plaintiff in the suit, cannot be maintained in this appeal.
35. Thus, the judgment and decree of both the Courts below stand set aside.
36. Let the lower Court records be sent down to the Court below immediately by Special Messenger at the cost of the respondents. Such cost is to be put in within a week from date.
37. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.