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SUPREME COURT OF INDIA
PANKAJ MITHAL, PRASHANT KUMAR MISHRA, JJ.
Manisha Mahendra Gala and Others – Appellants
Versus
Shalini Bhagwan Avatramani and Others – Respondents
Civil Appeal No. 9642 of 2010
WITH
Manisha Mahendra Gala and Others – Appellants
Versus
Shalini Bhagwan Avatramani and Others – Respondents
Civil Appeal No. 9643 of 2010
Decided On : 10-04-2024
(A) Civil Procedure Code, 1908 – Order VI Rule 1 – Pleadings – A fact which is not specifically pleaded cannot be proved by evidence as evidence cannot travel beyond pleadings – Pleadings should be liberally construed and need not contain exact language used in statutory provision but it does not mean that pleadings even if fails to plead essential legal requirement for establishing a right, same be so construed so as to impliedly include what actually has not been pleaded more particularly when it happens to be an essential ingredient for establishing a right. (Para 23)
(B) Indian Easements Act, 1882 – Sections 13 and 15 – Easementary right by prescription and necessity – Acquisition of – For acquiring any easementary right by prescription, said right must have been peaceably enjoyed in respect of servient heritage without any interruption for over 20 years – In plaint, neither original plaintiff nor subsequent purchasers have specifically claimed that they or their predecessor-in-interest were enjoying easementary right of use of said Rasta for over 20 years – They simply alleged that they have been using and managing same since “last many years – Use of term “last many years” is not sufficient to mean that they have been enjoying the same for last 20 years – Their pleadings fall short of meeting out legal requirement of acquiring easementary right through prescription – There is no evidence to prove that subsequent purchasers are in use of said land for last over 20 years uninterruptedly – Easementary right by necessity would arise if it is necessary for enjoying Dominant Heritage – No basis to record that subsequent purchasers have acquired easementary right over disputed Rasta in any manner much less by prescription, necessity or under an agreement – Appeals dismissed. (Paras 22, 27, 32, 40 and 41)
(C) Civil Procedure Code, 1908 – Section 107 – Powers of appellate court – First appellate court has power to return findings of fact and law both – In so returning the finding, it can impliedly overturn findings of court of first instance if it is against evidence on record or is otherwise based upon incorrect interpretation of any document or misconstruction of any evidence adduced before court of first instance. (Para 39)
(D) Powers of Attorney Act, 1882 – Section 2 – Power of Attorney – Power of Attorney holder can only depose about facts within his personal knowledge and not about those facts which are not within his knowledge or are within personal knowledge of person who he represents or about facts that may have transpired much before he entered scene – Power of Attorney holder who has no knowledge regarding transaction cannot be examined as a witness – Functions of General Power of Attorney holder cannot be delegated to any other person without there being a specific clause permitting such delegation in Power of Attorney. (Paras 28 and 29)
Facts of the case:
In Suit No. 14 of 1994 instituted by Joki Woler Ruzer, descendants of the subsequent purchaser Mahendra Gala were added as plaintiff Nos. 2-4. Suit was for declaration of their easementary rights over 20ft. wide road situate in the property of the Ramani’s and for permanent injunction in respect thereof. Suit was decreed by court of first instance vide judgment and order dated 06.02.2003. However, the judgment and decree was set aside in appeal by Ad-hoc District Judge-2, Raigad, vide judgment and order dated 12.03.2009 and suit was dismissed. High Court vide impugned judgment and order dated 01.10.2009 upheld judgment and order of appellate court in Second Appeal No. 305 of 2009.
Findings of Court:
Appellate courts and High Court have not committed any error of law in dismissing Suit No. 14 of 1994 of plaintiffs/appellants and in decreeing Suit No. 7 of 1996 of defendants/respondents.
Result : Appeals dismissed.
Based on the provided legal document, acquiring easementary rights through a simple sale deed and continuous use of a path since 1995 may not automatically guarantee relief under the Easements Act or for encroachment claims.
The court emphasized that for easement by prescription, the use must be peaceable, continuous, and without interruption for over 20 years prior to the suit. Merely using a path since 1995 would generally be insufficient if the use was not proven to be continuous and uninterrupted for the required period, especially if the claimants cannot substantiate that they or their predecessors-in-interest have enjoyed the right openly and without dispute for over 20 years (!) (!) .
Furthermore, the transfer of land via a simple sale deed does not automatically include easement rights unless explicitly stated or legally established that such rights were acquired prior to the transfer. In the absence of clear evidence that easement rights were possessed and transferred legally, a claim based solely on a sale deed and subsequent use is unlikely to succeed (!) (!) .
Additionally, continuous use since 1995 alone does not suffice unless it can be demonstrated that the use was open, continuous, and without interruption for more than 20 years, and that the right was legally established before the institution of the suit. The court also pointed out that mere use over a period does not establish easement rights if the legal requirements for prescription are not met (!) .
In the context of encroachment, relief would depend on whether the use is deemed to be lawful or unlawful. If the use is considered an encroachment, legal action might be necessary to remove the encroachment, but establishing a right under the Easements Act would require fulfilling the criteria for easement by prescription or necessity, which, as discussed, may not be satisfied solely by use since 1995 (!) (!) .
In summary, simply purchasing land through a sale deed and using a path since 1995 does not automatically entitle one to relief under the Easements Act or for encroachment unless the necessary legal conditions—such as uninterrupted use for over 20 years, proof of legal possession of easement rights, and proper documentation—are satisfied.
JUDGMENT :
PANKAJ MITHAL, J.
1. The dispute in the above two appeals is in connection with easementary rights over 20 ft. wide road situated over land Survey No. 57 Hissa No. 13A/1 which is presently owned by the respondents herein (hereinafter the ‘Ramani’s’).
2. In Suit No. 14 of 1994 instituted by Joki Woler Ruzer, the descendants of the subsequent purchaser Mahendra Gala were added as plaintiff Nos. 2-4 (hereinafter the ‘Gala’s’). The suit was for declaration of their easementary rights over the 20ft. wide road situate in the property of the Ramani’s and for permanent injunction in respect thereof. The suit was decreed by the court of first instance vide judgment and order dated 06.02.2003. However, the aforesaid judgment and decree was set aside in appeal by the Ad-hoc District Judge-2, Raigad, vide judgment and order dated 12.03.2009 and the suit was dismissed. The High Court vide impugned judgment and order dated 01.10.2009 upheld the aforesaid judgment and order of the appellate court in Second Appeal No. 305 of 2009.
3. Apart from the above suit, Suit No. 7 of 1996 came to be filed by the Ramani’s for declaring that the Gala’s or their predecessor-in-interest have no right, title and interest in the property and they do not have any right of way through the above land. The aforesaid suit was dismissed vide judgment and order dated 06.02.2003 by the court of first instance i.e. Civil Judge, Junior Division, Murud. On the appeal being preferred, the judgment and order passed by the court of first instance was set aside and the suit was decreed holding that the Gala’s have no right of way either by easement of prescription or of necessity on the suit land/road. The Gala’s were restrained from disturbing the possession of Ramani’s over the suit land and from doing any overt act over it.
4. Aggrieved by the dismissal of their Suit No. 14 of 1994 and the decreeing of the Suit No. 7 of 1996 of the Ramani’s, these two appeals have been preferred by the Gala’s. Their predecessor-in-interest Joki Woler Ruzer has not joined and has not preferred any separate appeal. Meaning thereby, that the original plaintiff has accepted the verdict of the High Court.
5. It would be necessary and beneficial to recapitulate certain background before considering the submissions of the respective parties to arrive at any conclusion with regard to their rights over the suit land, more particularly on the road in question.
6. There is no dispute that one Ramchandra Borkar was the owner of the vast land situate in Mouje Korlai, Taluka Murud, District Raigad, Maharashtra i.e. Survey No. 48 Hissa No. 15 and Survey No. 57 Hissa No. 13. The aforesaid Ramchandra Borkar fell into arrears of government dues recoverable as arrears of land revenue and, therefore, his aforesaid properties were acquired by the government. Subsequently, a part of the aforesaid property i.e. land Survey No. 48 Hissa No. 15 was sold out by the government on 25.04.1969 through public auction in favour of one Woler Francis who was also put in possession thereof on 08.07.1969. Thus, Woler Francis became the exclusive owner in possession of land Survey No. 48 Hissa No. 15 admeasuring 1 hectare and 76 acres situated at Mouje Korlai Taluka, Murud, District Raigad.
7. The remaining land which was initially possessed by Ramchandra Borkar and which was acquired by the government, was subsequently re-acquired by one Vasant Ramchandra Borkar, of the family of original owner Ramchandra Borkar. The said Vasant Ramchandra Borkar sold out a piece of the said land on 09.07.1988 to one Dharmadhikari being land Survey No. 57 Hissa No. 13A/2. The balance land which was essentially a part of Survey No. 57 was sold to the family of Ramani’s by a registered Sale Deed dated 11.09.1989 and was numbered as Survey No. 57 Hissa No. 13A/1.
8. In this way, the entire property of the Borkar family comprising of Survey No. 48 Hissa No. 15 and Survey No. 57 Hissa No. 13 which was acquired by the government came into the
(1) Pleadings – A fact which is not specifically pleaded cannot be proved by evidence as evidence cannot travel beyond pleadings.(2) Power of Attorney holder can only depose about facts within his pe....
The court determined that easementary rights granted in a sale deed are valid and enforceable, overruling lower court findings based on misinterpretation of evidence.
Establishment of easement rights requires explicit documentation, and mere permissive rights do not confer legal easements; plaintiffs failed to prove their claim.
Where Easement Act inapplicable, easement rights governed by justice, equity, good conscience; right by gift deed extinguished by changed circumstances providing independent access and causing servie....
The court established that an easementary right can be acquired through long-term, uninterrupted use, even if the specific phrase 'as of right' is not explicitly stated in the pleadings, provided the....
Easementary rights must be clearly established through evidence of grant or necessity, and a plaintiff must seek a declaration of such rights to challenge property alienation.
The existence of an easement of necessity can be asserted if no alternative access exists, obligating the defendant to allow passage through their property.
The main legal point established in the judgment is the requirement of continuous use of the approach road for 20 years as a basic element for claiming easementary rights under the Indian Easements A....
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