2006 Supreme(Bom) 585

IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Britto N. A., J.
Babli Krishna Vaigankar & anr . ... Appellants.
Versus
Laxman Sagun Vaigankar & anr . ... Respondents.
Second Appeal No. 55 of 2001,
decided on 7-4-2006.
Advocates appeared:
S.D. Lotlikar, Sr.Adv. with Ms. S. Naik, for appellants.
VA Lawande, for respondents.

Headnote:Civil Procedure Code, 1908 - Section 35-A, Order XLI, Rule 33 Easements Act, 1882, Section 13 Reversal of decree in post One of defendants not filed any cross appeal or objection Right of access to road through property purchased by defendants recently Decree revised in part by Appellate Court holding that plaintiff acquired right to passage by prescription by use for long time Appellate Court competent to make decree or order in favour of all or any of parties even if they not filed any objection or appeal Order of permanent injunction against defendants cannot be interferred with. The first substantial question on which this second appeal was admitted is whether it is open to the Appellate Court in exercise of its power under Order XLI, Rule 33, CPC to reverse a part of the decree passed by the trial Court against a party who was neither preferred a cross appeal nor cross-objection against that part of the decree which rejected a part of the suit. In courts view, this question does not at all arise as a substantial question of law, as is rightly pointed out on behalf of the plaintiffs. That apart, Order XLI, Rule 33, CPC provides that the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decreed and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross suits or where two or three decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.

       The Apex Court in the case of Koksingh v. Deokabai, AIR 1976 SC 634, has ruled that if an Appellate Court is of the view that any decree which ought in law to have been passed was not passed by the Court, it may pass or make such further or other decree or order as the justice of the case may require and that the Appellate Court is competent to pass a decree for the enforcement of a charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree-Court have already stated that the learned Additional District Judge has in substance not modified the decree but has only confirmed the relief granted by the trial Court, by which the plaintiffs were held to be entitled to the suit access and consequently for permanent injunction t o restrain the defendants from interfering with the said suit access. The first substantial question, therefore, does not arise and is answered accordingly.

       Civil Procedure Code, 1908 - Section 100 Second appeal Substantial question of law Evidence produced by plaintiff accepted by both Courts below Dispute regarding declaration sought by plaintiff in relation to access of an easement or by prescriptions First Appellate Court held that plaintiff established that suit access was only access No other was to reach road Plaintiff entitled to suit access Relief granted by trial Court upheld Landlords Bhatkars granted part of their land to Plaintiff entitled to use their land as an easement of necessity No merit in second appeal Dismissed with costs.

       Easements Act, 1882 - Section 4 - Easement of necessity - Necessity is not a rule of convenience - It is one which law creates according to doctrine of implied grant in particular case without which dominant tenement cannot be used - A person will have easement of necessity if he cannot go to main road except using it. - An easement is a right or interest in immovable property and its benefits and burden passed through every person into whose occupation the dominant and servant tenement comes. If the plaintiffs were using the said access to come to the said road on the western side through the properties of the bhatkar, the said burden or liability would certainly pass onto the defendants after they had purchased a portion of that property from the said bhatkar/landlord.

       A pragmatic view is required to be taken and for the purpose of deciding a case of easement of necessity all that is sufficient is that a party claiming easement of necessity proves that for effective user of the house in the ordinary way and for its designed purpose the right of easement over a particular passage is essentially necessary. Necessity implies that it is not a rule of convenience. It does not appear to be a correct principle in law that even if by effecting through remodelling of an existing structure, the structure remodelled can be used without the right of easement on the disputed property, a claim of easement of necessity will then stand defeated. A person will have an easement of necessity if he cannot go to the main road except using it. What the plaintiffs had claimed was also an easement of necessity in order to go from the only door to their house on the eastern side to go to the public road on the western side via the southern side of the house of the defendants and this, in courts view, the plaintiffs were certainly entitled to as an easement of necessity as they had none other.

       Easements Act, 1882 - Section 13 - Right by prescription - Second appeal - Challenging order of permanent injunction against defendants not to obstruct right of access of plaintiff acquired by prescription by use for long time - Right to use - Permissive or perspective right - Plaintiff claiming right to access not as owners of property - Claiming as an easement of necessity which they proved were using for over 58 years. - Question 3 was whether the claim of the plaintiffs that their house was dominant heritage vis-a-vis, the suit house which was the servient heritage and whether the owner of the suit plot was necessary party to the suit whose non-joinder was fatal ? This question has got to be answered in the negative, for the owner of the suit plot had cause d no interference in the right claimed by the plaintiffs inasmuch as the plaintiffs had claimed no relief against him. The last question is whether the notes of inspection made by the trial Judge at the time of consideration of the application for temporary injunction could be the basis of decreeing the suit in favour of the respondents ? In fact, this question also does not arise at all. What the learned trial Court had observed was that the memorandum of site inspection becomes part of the record and while pronouncing judgment it could be taken into consideration and in fact it has been taken into consideration by the learned trial Court but not to hold anything in favour of the plaintiffs but only to show that what the plaintiffs had stated that there was no space between the northern portion of his house and the compound wall was incorrect. It has never been the basis of decreeing the suit and, therefore, this question does not arise at all.