Important pointEasement right of necessity like a right of passage enjoyed by adjoining land owner shall not extinguish by reason of acquisition of land by State authority.

Judgment

Srikrishna, J.—The Himachal Pradesh State Electricity Board, Shimla, challenges by this appeal the judgment of the High Court of Himachal Pradesh dismissing its second appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as ‘the CPC’).

2. The appellant-Board purchased 10.10 bighas out of holding of one Rikhi Ram on 20.4.1978. The sale deed specifically mentioned that the present respondents 1 -3 shall have access to their land from the land of the seller, Rikhi Ram. On 29th March, 1981 the State Government acquired an area of 41.06 bighas of land for the public purpose of construction of 60 KW sub-station at Barotiwala. The acquired land included the remaining land of Rikhi Ram from whom respondents 1 to 3 had purchased the land. After the acquisition of the land, the entire property acquired for the benefit of the appellant was fenced off by barbed wire. An electric sub-station and living quarters for the employees of the appellant were also constructed thereupon. It appears that the appellant blocked off the passage being used as access to the land of the respondent which passed through the residential quarters and prevented such access to the said respondents. Respondents 1 to 3 filed a suit before the sub-judge Nalagarh for a mandatory injunction ordering the appellant- Board to remove the barbed wire blocking access to their land and for a permanent injunction to restrain the appellant in any manner to obstruct the access to their land. The trial court dismissed the suit.

3. Respondent 1 to 3 carried an appeal before the Additional District Judge, Solan. The Additional District Judge raised the following points for determination :

“1. Whether the suit of the plaintiffs is liable to be dismissed on account of non-proof of the map filed with the plaint, as held by the learned Trial Court?

2. Whether the plaintiffs have the right by way of easement of necessity or as purchasers from Rikhi Ram to pass through the land of the defendants through the passage shown in the site plan?

4. The learned Additional District Judge decided both the points in favour of the said respondents. He also held that the evidence on record proved the existence of a path from the land purchased by the appellant-Board to the lands of the said respondents and that they had no other approach from Haryana side. In view thereof, the Additional District Judge allowed the appeal and decreed the suit.

5. The appellant carried a regular second appeal under Section 100 of the CPC before the High Court. The High Court considered the following substantial question of law :

“Whether the right of respondents-plaintiffs to pass through the acquired land for reaching Nalagarh-Barotiwala-Kalka road by way of necessity was encumbrance which stood extinguished?”

The High Court answered the question of law in favour of respondents 1 to 3 and dismissed the second appeal. Hence, this appeal by special leave.

6. Both the Additional District Judge and the High Court have concurrently held that the land of respondents 1 to 3 (original plaintiffs) could be approached only through the land of the appellant as the other three sides of the land of the said respondents were surrounded by the territory of Haryana State. There is also a concurrent finding that the sale deed (Ex. PW 1/a) by which the lands were sold by Rikhi Ram to the Appellant-Board contained a clause giving respondents 1 to 3 a right of approach through the land purchased by the appellant; that in the absence of proper evidence led by present appellants (original defendants) by producing the relevant record, adverse inference had to be drawn to hold that fencing was put in the year 1986 as claimed by the plaintiffs; that the trial court was not right in holding that the map (Ex. PW 1/o) was not approved and, therefore, the claim of the respondents-plaintiffs cannot be accepted. The High Court considered the findings of facts recorded by the Additional District Judge and held th